COURT FILE NO.: CR-22-25 DATE: 2024-09-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King J. Cavanagh, M. Purcell, and T. Schuck for the Applicant

- and -

Archie McKay R. Amy and A. Anderson for the Respondent Accused

HEARD: August 9, 2024, at Kenora, Ontario

Mr. Justice J.S. Fregeau

Reasons On Application by the Crown to Admit Ante-Mortem Statements of Deceased Into Evidence

INTRODUCTION

[1] The Crown applies for the admission of ante-mortem statements made by Geraldine Chapman to four individuals under the state of mind or principled exceptions to the rule prohibiting the admission of hearsay evidence. The contested evidence is as follows:

a) Ante-mortem statements to Cheryl Meekis under the state of mind exception;

b) Ante-mortem statements to Stewart Albany under the statement of mind or principled exception;

c) Ante-mortem statements to Tom Chapman under the state of mind or principled exception; and

d) Ante-mortem statements to Thyra Chapman under the principled exception.

BACKGROUND

[2] Archie McKay (the “accused”) stands charged with five counts of first-degree murder resulting from an early morning fire at a residence located at 854 Macheetao Road in the First Nation community of Kitchenuhmaykoosib (“KI”) on May 2, 2019 (the “fire”).

[3] Tragically, Geraldine Chapman and four young children died in the fire. The accused was the biological father of one of the children that died. The other children had been adopted by Ms. Chapman and lived with her at 854 Macheetao Road.

[4] The accused, Ms. Chapman’s domestic partner in a years-long, on/off common law relationship, also resided with Ms. Chapman at 854 Macheetao Road. However, the accused’s residence at 854 Macheetao Road during this relationship was intermittent and dependent on the status of their relationship, and the accused’s sobriety, at any given time.

[5] The Crown’s primary theory of the case is that the accused deliberately set fire to the residence at 854 Macheetao Road with the requisite intent for murder and that he did so while criminally harassing or attempting to criminally harass Ms. Chapman.

[6] In this application, the Crown applies to admit ante-mortem statements made by Ms. Chapman to Cheryl Meekis, Stewart Albany, Tom Chapman, and Thyra Chapman in the period preceding the fire. The Crown’s position is that this evidence is probative of the underlying offence of criminal harassment and demonstrates the accused’s state of mind at the time of the fire (intent), as well as his motive and animus (identity). It is not in dispute that the primary issues in this trial are identity and intent.

[7] In summarizing the evidence of these four Crown witnesses, I have underlined the evidence the Crown seeks to have admitted under the state of mind and principled exceptions.

[8] The Crown is relying exclusively on the state of mind exception for the admission of Cheryl Meekis’ hearsay evidence.

[9] The Crown is applying to have the underlined hearsay evidence of Stewart Albany and Tom Chapman admitted under the state of mind exception. If these statements are ruled inadmissible under the state of mind exception, the Crown applies, in the alternative, to have them admitted under the principled exception. The Crown is applying to admit the balance of Stewart Albany and Tom Chapman’s hearsay evidence under the principled exception to the hearsay rule.

[10] The Crown is relying exclusively on the principled exception for the admission of Thyra Chapman’s hearsay evidence.

Cheryl Meekis

[11] Cheryl Meekis is a lifelong resident of KI and was 50 years old at the time of trial. Ms. Meekis and Ms. Chapman had been friends since the two of them were children. Approximately ten years ago, Ms. Meekis moved into a home next door to 854 Macheetao Road, and she and Ms. Chapman became neighbours.

[12] Approximately one week before the fire, Ms. Meekis was invited over to 854 Macheetao Road by Ms. Chapman to enjoy a cigarette together. Ms. Meekis joined Ms. Chapman outside of the porch attached to 854 Macheetao Road, where the two chatted and each smoked a cigarette.

[13] Ms. Meekis testified that, during their conversation, she asked Ms. Chapman “how are you doing”, or “how are you making out”, or words to that effect. Ms. Meekis told the court that she asked this of Ms. Chapman because she herself was going through marital issues and she had not seen the accused in and around that time. Ms. Meekis testified that she “sensed something was bothering [Ms. Chapman]”.

[14] Ms. Meekis testified that Ms. Chapman, in response to her question, “blurted” out,

• “ I am ready to let him go ”; and
• “ I am getting frustrated with him”.

[15] On cross- examination during the voir dire, Ms. Meekis denied having sold “home brew” to anyone the night of the fire. She stated that Creighton Beardy came to her house the night of the fire for cigarettes and not “booze”. Ms. Meekis agreed that she first told the police about Creighton Beardy coming to her house the night of the fire in her third statement. However, she added that she did not recall the police asking about Creighton Beardy during previous statements.

[16] On cross-examination, Ms. Meekis testified that she saw the accused near the scene of the fire at approximately 11:00 A.M. on May 2, 2019, and that he was not wearing a hat or toque and that his hair was “styled” or “combed”. She further testified that when she saw the accused, she ran toward him to confront him, swearing “ah fucking asshole” and that bystanders grabbed her. Ms. Meekis further agreed that when she was grabbed by bystanders, she was told to “calm down” and that she stated, “that fucker killed his kids and Geraldine”. When asked if she “hated” the accused, Ms. Meekis responded that “I didn’t know the accused” and “I don’t have an opinion on hating him or liking him”.

Stewart Albany

[17] Mr. Albany was 51 years old at the time of trial and has resided in KI since he was three years old. He has known Ms. Chapman since they were children and described the two of them as “very good friends”. Mr. Albany has also known the accused “pretty much [his] whole life” and described the two of them as “very good friends”.

[18] Mr. Albany testified that he saw Ms. Chapman “pretty much every day” in the period before the fire as he would attend Ms. Chapman’s convenience store for coffee. Ms. Chapman also attended Mr. Albany’s home once or twice a week in the months prior to the fire. Mr. Albany was aware that Ms. Chapman and the accused were in a common law relationship.

[19] On direct examination during the voir dire, Mr. Albany was asked what Ms. Chapman told him about her relationship with the accused. Mr. Albany testified that, approximately two days before the fire, Ms. Chapman came to his home and told him certain things about her relationship with the accused, including the following:

• That “Archie” had been threatening her “either with a weapon…a knife or either a syringe…like about a week prior”; and
• That she was “ in fear of her life and that she gets ah – she would get very scared. ”

[20] Mr. Albany further testified that, approximately a week prior to the fire, Ms. Chapman was coming over to his house to talk more often and told him the following:

• She was always trying to keep him out of the house because of “drinking and the abusiveness”;
• She had tried locking her doors and even though she had her doors locked somehow he would also gain entry from other sections of the house, including through one of the wall panels of the porch and through a crawl space area. This usually occurred “after she had locked him out”. Mr. Albany testified that he observed Ms. Chapman to be “quite worried” when describing these incidents;
• These incidents caused her to worry a lot;
• That she would worry if the accused would be on the property or right outside of her home, worried about him gaining entrance, worried about the children also; and
• That her daughter Thyra would come over “every so often” to be in the house with her in case something “erupts” between her and the accused.

[21] Mr. Albany also testified that, about a month or two before the fire, during a conversation the two of them had at Lucille’s store, Ms. Chapman characterized her relationship with the accused as rocky with a lot of trust issues.

[22] On cross-examination during the voir dire, Mr. Albany acknowledged that he consistently drank two to three four-litre jugs of “home brew” about three times per week, and that Creighton Beardy was a friend that he drank with. He also testified that the accused occasionally came to his home intoxicated, and that on one such instance the accused told him that Ms. Chapman had beaten him up.

[23] Further on cross-examination, Mr. Albany was asked to confirm that he told the police, on May 6, 2019, that the most recent disclosure Ms. Chapman had made to him about the accused being abusive to her was “three to five months ago”. He confirmed that this was what he told the police, and that he was being truthful at the time. When asked to confirm that he had no date or timeframe for when he spoke to Ms. Chapman, Mr. Albany responded, “that’s correct”. He further acknowledged that she did not tell him the year in which these events supposedly occurred.

[24] On cross-examination, Mr. Albany also agreed that Creighton Beardy was a very good friend of his at the time of the fire.

Tom Chapman

[25] Mr. Chapman is the uncle of Geraldine Chapman. He has resided in Sioux Lookout for approximately 30 years but lived in KI for approximately six months between April and November 2017. During this time, Mr. Chapman saw Geraldine Chapman “pretty much every day”.

[26] Mr. Chapman told the court that Geraldine Chapman would “[t]ell [him] stories about what she had encountered with [the accused]”, including the following:

• Peeking through windows or trying to come in the house;
• Sometimes she will let him in there and the times she didn’t open the door, he would break the door just to get into the house;
• He’d be outside and around the building, just watching her, keeping an eye on her, almost like “stalking her”, sleeping in sheds;
• He’d try to be there when she didn’t want him there;
• He’d be outside the windows or under the house sleeping there or in sheds, the outhouse and the woodshed or hanging around by the shed down by the lake sometimes spending the night if she didn’t let him in;
• He was obsessed with her and wouldn’t leave her alone;
• She didn’t want him being around kids and younger ones. She wanted the kids to be in a safe environment;
• She didn’t feel safe “I guess”; and
• She didn’t want the accused being at the house when he was intoxicated. She didn’t feel comfortable when he was intoxicated.

[27] Mr. Chapman testified that Geraldine Chapman also told him that, at some point in the spring of 2017, the accused had damaged her door trying to get into the house. He further testified that, in the spring of 2017, Geraldine Chapman told him “ I don’t want [the accused] coming around” and that the accused was annoying her and was not wanted.

[28] On cross-examination during the voir dire, Mr. Chapman acknowledged that he gave his statement to the police after learning that the accused had been arrested and charged with first degree murder in relation to the fire. When asked if it was his opinion, at that time, that the accused was responsible for the fire, he responded “yes”. He further answered “yes” when asked if he had approached the police with the purpose of providing them with information that could be used to help convict Archie McKay.

Thyra Chapman

[29] Thyra Chapman is 23 years old and the biological daughter of Geraldine Chapman. She was 19 years old and was living at 854 Macheetao Road at the time of the fire. She was in Sioux Lookout on May 2, 2019.

[30] Thyra Chapman did not know the accused before her mother’s relationship with him began. She recalled that she was approximately 11 years old when she first met the accused. She told the court that she did not pay much attention to her mother’s relationship with the accused “in the beginning”, but that she started to do so when she was around 15, 16, or 17 years old and “[her] mom started telling [her] things”. Thyra Chapman testified that her mother continued to speak with her about the relationship she got older.

[31] In response to being asked what her mother told her about her relationship with the accused, Thyra Chaman responded, “ [t]hat she was tired of being accused all the time ”. When asked what she was being accused of, Thyra Chapman responded, “ [c]heating or having another guy at the house or talking to other guys ”.

[32] Thyra Chapman also testified that, when she was about 18 years old, her mother told her that the accused “came by [854 Macheetao Road] again and he ripped off the hinges from the door and he scared [her brother] Karl ”.

[33] Thyra Chapman testified to personally observing conflict between her mother and the accused “about twice”. The first time, when Thyra Chapman was between 16 and 17 years old, she was in the living room of 854 Macheetao Road and the accused and her mother were in the kitchen:

“My mom was starting getting mad. I don’t know what he was telling her or saying. I just know that I heard my mom starting – started to get mad and then she told him to get out then. And then I – I didn’t see him, but the door was still open. All I saw was hand – all I saw was his hand going towards her face hitting her chin”.

[34] Thyra Chapman testified that second instance of conflict she witnessed between the accused and her mother was also at 854 Macheetao Road, and took place when she 17 years old:

“The second time they’re drinking in her room, and I heard yelling, screaming, thuds. And I was getting tired of it. The kids were sleeping. I was trying to sleep ‘cause I had work. So, I just went in there. So, I grabbed … Archie and threw him out”.

[35] Thyra Chapman “vaguely remembered” that, on this occasion, her mother and the accused were arguing “about him cheating on her”.

[36] Thyra Chapman testified that her mother’s relationship with the accused followed a general pattern of “them fighting and [the accused] leaving to go drink and coming back every other weekend … sometimes every couple of weeks or a couple months sometimes … after he was done drinking, he’d try and come back”.

[37] On cross-examination, Thyra Chapman agreed that she had made it clear to her mother that she disliked the accused and did not want to “hear anything good” about him, and that she “just didn’t want to hear anything about him” at all.

[38] On re-examination, Thyra Chapman told the court that she did not like the accused because of “how he treated [her mom]”.

THE LAW

[39] The law applicable to the state of mind and principled exceptions to the rule prohibiting hearsay evidence is well established and not in issue on this application.

The State of Mind Exception

[40] Under the state of mind exception to the hearsay rule, declarations about a present state of mind are admissible where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion: see R. v. Griffin, 2009 SCC 28, 2 S.C.R. 42, at para. 59. The requirement that the declaration relate to a contemporaneous mental or emotional state provides some guarantee of reliability, minimizing the dangers of hearsay: see David Watt, Watt’s Manual of Criminal Evidence, 2023 ed., (Canada: Carswell, 2023), at p. 420.

[41] Relevance is a prerequisite to admissibility under the state of mind exception. Relevance refers to the relationship between an item of evidence and a proposition of fact that the adducing party seeks to prove through introducing the evidence. Relevance is a relative concept; it is both a function of and dependent on the circumstances of the case in which it is offered: see R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 47.

[42] In R. v. P. (R.) (1990), 58 C.C.C. (3d) 334, a domestic homicide case, the court discussed relevancy in the context of the state of mind exception and concluded, at para.10, that there were two aspects:

1. Are the statements relevant to the deceased’s state of mind in that they permit one to draw a reasonable conclusion as to her state of mind?
2. If so, is her state of mind relevant directly or indirectly to a fact in issue?

[43] Under this traditional exception, a statement evidencing a person’s present emotional state is admissible to show that person in fact held that belief or emotional state. The statement can be an explicit statement of a state of mind (direct evidence), or a statement that permits an inference as to the speaker’s state of mind (circumstantial evidence): see R. v. Brooks, 2016 ONSC 567, at para. 51.

[44] When a hearsay statement satisfies the state of mind prerequisites, the statement also satisfies the threshold for the principled exception’s indicia of reliability: see R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787, at para. 64; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 28. However, where circumstances of suspicion exist, the presumption of reliability normally underlying this exception is removed, as admitting the evidence would be inconsistent with the underlying principles. Given the presumption of reliability underlying the exception, it falls to the person opposing the evidence to show circumstances of suspicion: see R. v. Starr, 2000 SCC 40, 2 S.C.R. 144, at para. 8. Adherence to the prerequisites of this exception must be strict to ensure that evidence is admitted only when it meets the underlying rationale.

[45] The purpose of the state of mind exception comes from the range of possible inferences that may be drawn from a speaker’s state of mind. In Brooks, at paras. 52–53, DiTomaso J., citing Griffin, at paras. 60–62, R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 104, and Candir, at para. 51, summarized the various ways that ante-mortem statements regarding a deceased’s state of mind may be relevant:

• A deceased’s mental state may be relevant to the question of the accused’s motive;
• The state of the relationship between a deceased and an accused in the period leading up to the former’s death has been recognized as probative of motive. Issues of fear may be probative of malice, motive, and state of mind, which in turn can be relevant to identity;
• The deceased’s state of mind can be a link in a chain of reasoning which could lead to a finding that the accused had a motive to kill. Evidence of the deceased’s state of mind may provide an indirect connection to the accused’s state of mind;
• The state of the relationship between an accused and a deceased in the time leading up to the death of the deceased may demonstrate animus and motive on the part of the accused, and thus may be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing; and
• In situations where the theory of the Crown’s case is that the murder was motivated by the accused’s anger at the deceased’s decision to end a relationship, the prosecutor is entitled to adduce evidence to prove the deceased’s contemporaneous mental or emotional state with respect to the accused, such as dislike, hatred, or fear of the accused. From the deceased’s state of mind, the trier of fact will be asked to infer, and can conclude, that the deceased acted in accordance with his or her state of mind and that his or her conduct supplied the accused with his or her motivation to act.

[46] If evidence is ruled admissible under the state of mind exception, it is admitted as proof that the declarant held a certain belief or was in a particular emotional state. Evidence admitted under this exception is not admissible for the truth of its contents.

The Principled Exception

[47] Hearsay evidence not falling under a traditional exception may be admitted under the principled approach if the necessity and reliability elements are established by the applicant on a balance of probabilities. Threshold liability can be established through procedural or substantive reliability.

[48] The principled exception is intended to enhance the truth-seeking function of a trial and ensure accurate fact-finding. Hearsay evidence is admissible under the principled exception only if it meets the threshold requirements of necessity and reliability. By the very nature of these requirements, this examination must be applied flexibly, on a case-by-case basis: see R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 21. A trial judge’s task on an application to admit hearsay evidence under the principled exception is to determine threshold reliability, and therefore admissibility, on a balance of probabilities. Ultimate reliability is a matter to be determined by the trier of fact: McMorris, at para. 23.

[49] On this application, the accused concedes necessity due to the death of Ms. Chapman. Furthermore, because of the nature of the hearsay evidence it seeks to have admitted, the Crown is relying only on substantive reliability.

[50] To establish substantive reliability, the circumstances surrounding the statement itself must provide sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. This is a functional inquiry. Substantive reliability is concerned with whether there is a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy: see R. v. MacKinnon, 2022 ONCA 811, 164 O.R. (3d) 535, at para. 62 (iii)(c), citing Khelawon, at paras. 44–45.

[51] The standard for substantive reliability is high, but what is commonly referred to as the circumstantial guarantee of trustworthiness does not require absolute certainty. The trial judge must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if any, benefit to the process. For example, this may be the case when the statement is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, or where the statement is so reliable that it is unlikely to change under cross-examination, or when the only likely explanation is that the statement is true: see McMorris, at para. 30, citing R. v. Bradshaw, 2017 SCC 35, 1 S.C.R. 865, at para. 31.

[52] If substantive reliability is still lacking after considering the circumstances surrounding the statement, a trial judge can rely on corroborative evidence to assist only if that evidence meets the criteria set out by the Supreme Court in Bradshaw: see MacKinnon, at para. 62 (iii)(d).

[53] To determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should complete the following steps from Bradshaw, found at para. 57 of the decision:

1. Identify the material aspects of the hearsay statement that are tendered for their truth.
2. Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.
3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[54] In R. v. Smeltzer, 2021 ONSC 4927, at para. 57, Lacelle J. provided a non-exhaustive list of factors to consider when reviewing the circumstances in which a statement is made and assessing if threshold reliability has been met:

i. the timing of the statement in relation to the event reported; ii. the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement; iii. the presence or absence of leading questions or other forms of prompting; iv. the nature of the event reported; v. the likelihood of the declarant's knowledge of the event, apart from its occurrence; vi. whether there would be any difficulties with respect to the declarant's capacity to perceive or remember events; vii. the condition of the declarant at the time the statement was made; viii. the amount of detail in the statement; and ix. the demeanour of the declarant at the time the statement was made.

[55] Finally, it is settled law and not in dispute on this application that a trial judge has the residual discretion to exclude admissible evidence, including evidence that is otherwise admissible under an exception to the hearsay rule, if the prejudicial effect of the evidence outweighs its probative value.

THE POSITIONS OF THE PARTIES

The Crown

Cheryl Meekis – State of Mind Exception

[56] The Crown submits that Ms. Chapman’s statements to Cheryl Meekis approximately one week prior to the fire express a desire or intention to end her relationship with the accused. The Crown contends that these statements are relevant in the circumstances of this case, as they can be used to infer that the accused was aware of her intention and, in turn, that he had a motive to kill Ms. Chapman.

[57] The Crown submits that the statements made by Ms. Chapman to Cheryl Meekis are explicit statements evidencing her emotional state and intentions with respect to her relationship with the accused at the time. The Crown suggests, therefore, that these statements satisfy the contemporaneous requirement of this exception.

[58] The Crown submits that there is no evidence to suggest that these statements were made under suspicious circumstances. The Crown notes that Ms. Meekis and Ms. Chapman had been friends since childhood, and neighbours for approximately 10 years prior to the fire; furthermore, the statements were made by Ms. Chapman in direct response to a casual and general question from Ms. Meekis, who sensed that something was bothering Ms. Chapman.

[59] The Crown submits that Ms. Meekis is a credible and reliable witness. The Crown acknowledges that Ms. Meekis was not being truthful during cross-examination when she denied selling “home brew” to “anybody” on the night of the fire. However, the Crown submits that this single and specific untruthfulness is understandable given that selling home brew is illegal in KI. The Crown further submits that Ms. Meekis’ animosity towards the accused following the fire, as elicited on cross-examination, does not significantly detract from her credibility because she readily acknowledged her feelings toward the accused when testifying.

[60] The Crown acknowledges some issues with the reliability of Ms. Meekis’ evidence, specifically because Ms. Meekis described the accused as having freshly combed hair when she saw him on the morning of the fire while other witnesses, including police officers, testified that he was wearing a toque. However, the Crown submits that I may accept all, some, or none of this witness’ evidence.

Stewart Albany – the State of Mind Exception and the Principled Exception

[61] The Crown seeks to have the following statements, allegedly made by Geraldine Chapman to Stewart Albany, admitted under the state of mind exception:

• About two days prior to the May 2, 2019, fire “she was in fear of her life and that she gets ah – she would get very scared”.
• About a week prior to the May 2019, fire and because of the actions of the accused, “she seemed ah, quite worried”, “she had a really worried look on her face”, collectively “it made her worry a lot”, “what she said about that was ah, that she would worry whether if Mr. McKay would be on the property or be ah, right outside of the residence”, and “what made her worry was ah, him gaining inside the entrance, worried about ah, the children also”.

[62] The Crown submits that Geraldine Chapman’s state of mind in the period prior to the fire is relevant to the underlying offence of criminal harassment, as well as the accused’s animus, motive, intent, and identity. The Crown contends that these statements are a direct expression of Geraldine Chapman’s contemporaneous emotion, that being fear and worry, generally as a result of the accused’s actions and specifically as a result of being threatened by the accused.

[63] The Crown submits that these statements were made in the context of a personal discussion between lifelong close friends, and thus took place in a natural manner as opposed to under suspicious circumstances. The Crown submits that these statements are admissible under the state of mind exception to prove Geraldine Chapman’s contemporaneous mental or emotional state with respect to the accused.

[64] If ruled inadmissible under the state of mind exception, the Crown applies in the alternative to have these statements admitted under the principled exception. The Crown applies to have the balance of the statements made by Geraldine Chapman to Stewart Albany, as set out in the summary of his evidence above, admitted under the principled exception.

[65] The Crown submits that the substantive reliability of Geraldine Chapman’s statements to Stewart Albany has been established on a balance of probabilities. The Crown submits that Geraldine Chapman and Stewart Albany were lifelong friends who frequently visited each other, at which time Geraldine Chapman would confide in Stewart Albany about issues in her relationship with the accused. The Crown submits that these visits became more frequent in the period immediately prior to the fire. The Crown suggests that the close and highly personal relationship between Geraldine Chapman and Stewart Albany provides the circumstantial guarantee of trustworthiness required for the principled exception.

[66] The Crown submits that Stewart Albany did not prompt Geraldine Chapman to disclose anything about the accused, that Geraldine Chapman was sober when she made all the statements to Stewart Albany, and that Stewart Albany had no issue understanding what was said to him. The Crown suggests that Geraldine Chapman’s statements to Stewart Albany contained significant detail, and that her “fidgety” and nervous demeanour when speaking to Stewart Albany was consistent with the nature of the accused’s conduct as she had disclosed, and the fear of him she had expressed.

[67] The Crown submits that there is an expansive body of admissible evidence that, cumulatively and specifically, corroborates the nature of the disclosures made by Geraldine Chapman to Stewart Albany; this includes Geraldine Chapman’s 911 calls and the police occurrence reports, both of which involved the accused’s conduct toward her in the years prior to the fire. The Crown submits that the evidence of Tom Chapman, Thyra Chapman, and Cheryl Meekis further corroborates Geraldine Chapman’s statements to Stewart Albany.

[68] The Crown submits that the cross-examination of Stewart Albany during the voir dire did not directly challenge his credibility, nor did it disclose any bias toward the accused or any reason for Stewart Albany to lie or misrepresent what Geraldine Chapman told him about her relationship in his testimony. The Crown further submits that the accused has not advanced any plausible or alternative explanation for the statements that Stewart Albany attributed to Geraldine Chapman.

Tom Chapman – the State of Mind Exception and the Principled Exception

[69] The Crown seeks to have the following statements made by Geraldine Chapman to Tom Chapman, between April and November 2017, admitted under the state of mind exception to the hearsay rule:

• She didn’t want him being around the kids;
• She didn’t feel safe;
• She didn’t feel it was good for the kids for Archie to be around;
• She was uncomfortable with him being there and was worried about her kids;
• The she didn’t want him coming around here; and
• That the accused was annoying her and was not wanted at her place.

[70] If ruled inadmissible under the state of mind exception, the Crown applies in the alternative to have these statements admitted under the principled exception.

[71] The Crown submits that these statements are evidence of Geraldine Chapman’s state of mind in 2017; as such, they are relevant to her state of mind in the context of the underlying offence of criminal harassment, and both probative and relevant with respect to motive, intent, and identity.

[72] The Crown submits that these statements are either direct expressions of Geraldine Chapman’s contemporaneous emotion, that being fear of and/or annoyance with the accused, or circumstantial evidence of her contemporaneous emotions in relation to the accused.

[73] The Crown submits that these statements were made in a natural manner by Geraldine Chapman to her uncle, at a time when he was serving as the deputy Chief of KI. The Crown suggests that there is no evidence to support the suggestion that any of these statements were made under circumstances of suspicion.

[74] The Crown applies to have the balance of Geraldine Chapman’s statements to Tom Chapman, as set out in the review of his evidence above, admitted for the truth of their contents under the principled exception. The Crown submits that the substantive reliability of these statements establishes threshold reliability.

[75] The Crown argues that this body of evidence is relevant and highly probative in the circumstances of this case. The Crown contends that the circumstances in which these statements were made by Geraldine Chapman to Tom Chapman provide sufficient circumstantial guarantees that the statements are inherently trustworthy. Those circumstances are said to include the following:

• The statements were made by Geraldine Chapman to her older uncle, a leader in the community on a temporary basis when the statements were made and a person whom she saw on an almost daily basis;
• The statements were made to Tom Chapman when he attended with Geraldine Chapman at her request because of problems she was having with the accused; and
• The statements made by Geraldine Chapman to Tom Chapman were supported by Geraldine Chapman physically pointing out to him various places and locations she referred to in the statements.

[76] Should the court not be persuaded of the substantive reliability of these statements due to the circumstances in which they were made, the Crown submits that there is a large body of corroborative evidence in this trial to cumulatively establish a pattern of occurrences similar in nature to those disclosed by Geraldine Chapman. This includes several 911 calls made by Geraldine Chapman as a result of the accused’s conduct, occurrence reports of KI police involving the accused, and the evidence of Terrance Nanokeesic, Thyra Chapman, Stewart Albany, and Cheryl Meekis.

[77] The Crown submits that it has established, on a balance of probabilities, that the statements made by Geraldine Chapman to Tom Chapman are inherently trustworthy and likely or probably true and therefore admissible under the principled exception.

Thyra Chapman – the Principled Exception

[78] The Crown applies to have certain statements made by Ms. Chapman to Thyra Chapman admitted into evidence for the truth of their contents under the principled exception only. The subject statements are underlined in the summary of Thyra Chapman’s evidence above.

[79] The Crown submits that the substantive reliability of these statements has been established on a balance of probabilities based on the circumstances in which they were made. The Crown notes that Thyra Chapman was the oldest biological child of Geraldine Chapman; she testified that Geraldine Chapman began confiding in her about the abusive aspects of her relationship with the accused when Thyra Chapman was between 15-18 years old. The Crown submits that the specific statements which it seeks to have admitted on this application were made to Thyra Chapman within a close, trusting, mother/daughter relationship.

[80] The Crown submits that Thyra Chapman testified to personally witnessing specific instances of physical and verbal abuse as well as conflict between her mother and the accused. The Crown suggests that Thyra Chapman also testified to observing the accused’s cyclical pattern of behaviour toward her mother: the accused would drink heavily, which typically resulted in conflict, followed by the accused being absent from the home for a period of time then trying to come back after he “was done drinking”, which resulted in further domestic conflict.

[81] The Crown submits that statements from mother to daughter regarding specific aspects of abuse, within the wider context of an abusive relationship witnessed by the daughter, are relevant and highly probative in the circumstances of this case as well as inherently trustworthy.

[82] The Crown submits that there is no evidence of a motive for Geraldine Chapman to lie to her daughter, nor any other reason to doubt the truth of Thyra Chapman’s testimony. The Crown further submits that Thyra Chapman was a credible and reliable witness who provided clear and cogent evidence.

[83] The Crown submits that, if this court is not satisfied with the inherent trustworthiness of Geraldine Chapman’s statements to Thyra Chapman based on the circumstances in which they were made, there is an abundance of corroborative evidence before the court illustrating the nature of the accused’s conduct toward Geraldine Chapman which is consistent with the evidence of Thyra Chapman.

[84] The Crown suggests that this corroborative evidence includes the evidence of Geraldine Chapman’s 911 calls, as well as the evidence of Stewart Albany, Tom Chapman, Cheryl Meekis, and Terrance Nanokeesic regarding the alleged abuse and the jealous, controlling behaviour exhibited by the accused.

[85] The Crown submits that it has established, on a balance of probabilities, that the only likely explanation for Geraldine Chapman’s statements to her daughter is that they were made in truth such that the substantive and threshold reliability requirements are established.

The Accused

Cheryl Meekis – State of Mind Exception

[86] The accused disputes the relevance of Ms. Chapman ‘s statements to Cheryl Meekis. The accused submits that these statements are not expressions of Ms. Chapman’s fear of the accused, nor of her fear being harassed by the accused, and therefore they are not relevant to the underlying offence of criminal harassment.

[87] The accused acknowledges that these statements may allow a trier of fact to conclude, or to infer, that Geraldine Chapman intended to end her relationship with the accused. The accused disputes, however, that this could allow a trier of fact to then infer that the accused was aware of her intention, and thus had a motive to kill Geraldine Chapman.

[88] The accused submits that there is no direct evidence to show he was aware of Geraldine Chapman’s intention. The accused further submits that there is direct evidence to the contrary. The accused points to the evidence of Creighton Beardy and Thyra Chapman as to the accused being at 854 Macheetao Road and caring for the children in the days before the fire; he further notes the evidence of Creighton Beardy that the accused and Geraldine Chapman were drinking together, both in the days before the fire and during the early morning hours of May 2, 2019, at 854 Macheetao Road.

[89] The accused contends that it would be unreasonable for a trier of fact to infer his awareness of Geraldine Chapman’s intention to end the relationship. If the suggested inference cannot reasonably be made, the accused suggests that the evidence is not probative and therefore not relevant, rendering it inadmissible.

[90] Assuming relevance is established, the accused concedes that these statements could allow a trier of fact to conclude that Ms. Chapman was “frustrated” with the accused, and that she intended to end the relationship at the time the statements were made. The accused concedes that this satisfies the contemporaneous requirement of the state of mind exception.

[91] However, the accused submits that Ms. Meekis was neither credible nor reliable as a witness, and that suspicious circumstances therefore exist. First, the accused contends that Ms. Meekis deliberately lied to the court when she denied selling home brew to “anybody” on the night of the fire. The accused submits that a deliberate lie under oath cannot be overlooked simply because selling home brew is illegal on KI, as suggested by the Crown.

[92] Second, the accused submits that Ms. Meekis was either mistaken or untruthful when she described seeing the accused, without a toque and with his hair combed, the morning after the fire. The accused notes that this highly incriminating evidence is directly contradicted by the testimony of police officers at the scene of the fire.

[93] Third, the accused submits that Ms. Meekis immediately assumed the accused was responsible for the fire and the deaths of Ms. Chapman and the four children, as evidenced by the fact that she attempted to confront him at the scene of the fire while stating, “ah fucking asshole” and “that fucker killed his kids and Geraldine”.

[94] The accused submits that suspicious circumstances within the meaning of this exception can include issues with the credibility and reliability of the witness who testifies to having heard the hearsay utterances.

Stewart Albany – the State of Mind and the Principled Exception

[95] The accused submits that the cross-examination of Stewart Albany on the voir dire established that he had no clear idea of when the last discussions he had with Geraldine Chapman took place. The accused submits that, at its highest, Stewart Albany’s evidence establishes two things: first, that his last discussions with Geraldine Chapman were three to five months before the fire, and second, that she provided no details about the events discussed to him, including the year in which the events she discussed apparently occurred.

[96] The accused submits that the vagueness of Stewart Albany’s evidence as to when his discussions with Geraldine Chapman took place, combined with an absence of evidence as to when the events disclosed apparently occurred, minimizes the relevance of the evidence and eliminates the guarantee of reliability on which this exception is premised. The accused submits that these statements do not meet the requirements of the state of mind exception to the hearsay rule.

[97] The accused further contends that none of the statements allegedly made to Stewart Albany by Geraldine Chapman should be admitted under the principled exception. The accused reiterates that Stewart Albany’s evidence was inconsistent and contradictory as to when Geraldine Chapman apparently made these statements to him, as well as devoid of any information as to when the events she allegedly disclosed to him occurred. Therefore, the accused submits that the purported relevance of this evidence is diminished accordingly.

[98] The accused argues that Stewart Albany, despite testifying to being a lifelong friend of both the accused and Geraldine Chapman, had no idea of when the two of them broke up and/or got back together, did not know who lived at 854 Macheetao Road at the time of the fire, and did not even know if Geraldine Chapman owned a cell phone. The accused submits that Stewart Albany exaggerated the closeness of his relationship with Geraldine Chapman and further suggests that the nature of their relationship does not provide any guarantee that the subject statements are inherently trustworthy.

[99] The accused submits that, under the principled exception, a trial judge must be satisfied that a hearsay statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. The accused notes that the statements of Geraldine Chapman as testified to by Stewart Albany about were vague, conclusory, and undated. The accused submits that this type of evidence, in a relationship characterized by reciprocal drinking and physical violence, is ripe for fruitful cross-examination. The accused notes that violence and threats are often not a “one way street” in domestic relationships.

[100] The accused submits that the corroborative evidence put forth by the Crown is neither independent nor confirmatory as required under the principled exception. The accused further suggests that evidence establishing a pattern of apparent past behaviour is not corroborative evidence of the material aspects of the hearsay statements which are tendered for the truth, as required under the principled exception.

Tom Chapman – the State of Mind and the Principled Exception

[101] The accused submits that the statements allegedly made by Geraldine Chapman to Tom Chapman, which the Crown seeks to have admitted under the state of mind exception, do not describe a contemporaneous mental or emotional state as required.

[102] The statements that, “she didn’t want him being around the kids” and “she didn’t feel it was good for the kids for Archie to be around” are not statements expressing Geraldine Chapman’s emotional state at the time, according to the accused.

[103] The accused submits that Tom Chapman’s evidence on the voir dire illustrates that much of what he attributed to Geraldine Chapman having said to him was in fact his interpretation, or conclusion, of what she said, rather than a verbatim recitation. The accused submits that a witness’ conclusions, or speculation, about a declarant’s mental or emotional state based on how the declarant appeared to the witness do not fit within this exception.

[104] The accused further submits that the Crown has failed to establish admissibility of the hearsay statements made to Tom Chapman under the principled exception. The accused notes that the Crown relies heavily on the alleged closeness of Tom Chapman and Geraldine Chapman’s relationship to establish the inherent trustworthiness of this evidence. However, the accused contends that Tom Chapman had not lived in KI for 30 years prior to 2017 and, furthermore, that there is no direct evidence to demonstrate his relationship with Geraldine Chapman was a close one.

[105] The accused contends that if it had been a close relationship, Tom Chapman would have had prior knowledge of the issues in the relationship, which he did not. The accused also notes that Tom Chapman was unaware that Geraldine Chapman and the accused had a child together. The simple fact that Tom Chapman is an older relative of Geraldine Chapman, and the fact the two of them sometimes discussed matters in their native language, does not elevate the closeness of this relationship according to the accused.

[106] The accused submits that most of the hearsay evidence the Crown seeks to introduce through Tom Chapman consists of his conclusions or speculations drawn from limited information given to him by Geraldine Chapman. The accused contends that cross-examination of the declarant on this evidence would therefore be fruitful in determining the truth or accuracy of Geraldine Chapman’s statements. The accused contends, therefore, that this court cannot conclude that the statements attributed by Tom Chapman to Geraldine Chapman are so reliable that contemporaneous cross-examination of Geraldine Chapman would add little to the truth-seeking function of this trial.

[107] The accused submits that there is no corroborative evidence for the material aspects of the statements allegedly made by Geraldine Chapman to Tom Chapman. The accused contends that the hearsay sought to be admitted through Tom Chapman fails to meet the test for both the state of mind and principled exceptions to the hearsay rule.

Thyra Chapman – the Principled Exception

[108] The accused acknowledges that the subject statements were made by Geraldine Chapman to Thyra Chapman within the context of a mother/daughter relationship. However, the accused suggests that a complete review of the totality of Thyra Chapman’s evidence establishes that Geraldine Chapman was selective in what she shared with her daughter. Thyra Chapman testified to telling her mother that she didn’t want to hear anything at all about the accused. As a result, the accused submits that Geraldine Chapman only shared negative information about the accused with Thyra Chapman.

[109] The accused further contends that the evidence heard in this trial establishes Geraldine Chapman as a habitual drinker. The accused submits that cross-examination of Geraldine Chapman about the frequency and quantity of her drinking could quite possibly undermine the reliability of all the corroborative evidence relied on by the Crown in this application.

[110] The accused further submits that Thyra Chapman’s open and obvious dislike for the accused detracts from her credibility, and from the reliability of her evidence to the extent that it would be unsafe to accept the truth of what she testified her mother told her about the accused.

[111] The accused submits that the threshold reliability of Thyra Chapman’s evidence has not been established on a balance of probabilities.

ANALYSIS

Cheryl Meekis

[112] The Crown applies to have the following statements, allegedly made to Cheryl Meekis by Geraldine Chapman approximately one week before the fire, admitted into evidence under the state of mind exception to the hearsay rule:

• I am ready to let him go; and
• I am getting frustrated with him.

[113] The Crown submits that this evidence is relevant because it is direct evidence that Geraldine Chapman was, approximately one week before the fire, frustrated with the accused and intending to end their relationship. The Crown contends that a trier of fact could, from this evidence, infer that the accused was aware of Geraldine Chapman’s intention and that he therefore had a motive to kill her.

[114] I accept the submission of the accused that there is no direct evidence that the accused had knowledge of the suggested intention of Geraldine Chapman to end the relationship. I also find that there is no evidence to suggest that Geraldine Chapman had communicated to the accused, nor that he was otherwise aware of, her intentions.

[115] Creighton Beardy testified that the accused and Geraldine Chapman were together drinking, along with a third party, on April 30, 2019. Creighton Beardy also testified that the accused and Geraldine Chapman were drinking together at 854 Macheetao Road during the early morning hours of May 2, 2019, and that Geraldine Chapman threw the accused out of the residence only because he had consumed too much of the alcohol they were sharing that night. Thyra Chapman testified that the accused was at 854 Macheetao Road overnight on April 27/28, 2019, sleeping on the couch with his daughter.

[116] Given this evidence, I find that a trier of fact could not reasonably infer that the accused was aware of Geraldine Chapman’s intention to end their relationship and therefore had a motive to kill her. It follows that, if such an inference cannot reasonably be drawn, the statements of Geraldine Chapman to Cheryl Meekis have no probative value, are not relevant, and are therefore inadmissible.

[117] If I am incorrect in this conclusion, I accept that the statements otherwise satisfy the requirements for admissibility under the state of mind exception to the hearsay rule. However, the probative value of this evidence is limited and is exceeded by its prejudicial effect.

[118] Cheryl Meekis was neither a credible nor reliable witness. Creighton Beardy testified, without hesitation, that Cheryl Meekis (“Mimi”) was a bootlegger who sold home brew to Wayne Moskotaywenene on the night of the fire. Wayne Moskotaywenene also testified to buying home brew from Cheryl Meekis on the night of the fire. Cheryl Meekis testified that she did not sell home brew to “anybody” from her home on KI. I accept the evidence of the two witnesses who testified that she did do so. Cheryl Meekis was untruthful when testifying in this trial. I reject the Crown’s submission that Cheryl Meekis’ untruthful testimony is understandable and can be overlooked because bootlegging home brew is unlawful in KI.

[119] Furthermore, Cheryl Meekis was either mistaken or untruthful when she testified to seeing the accused at the scene of the fire during the morning of May 2, 2019, without a hat or toque and with his hair “combed”. She also acknowledged that she had to be held back by bystanders when she confronted the accused, and that she stated, “that fucker killed his kids and Geraldine”.

[120] Cheryl Meekis is obviously casual with the truth when testifying under oath. I find that the prejudicial effect of admitting the hearsay evidence of this witness, who is neither credible nor reliable, and who immediately concluded that the accused was responsible for the fire, exceeds its limited probative value. The evidence of Cheryl Meekis as to what Geraldine Chapman told her approximately one week prior to the fire is ruled inadmissible.

Stewart Albany

The State of Mind Exception

[121] The Crown applies to have the following statements, allegedly made by Geraldine Chapman to Stewart Albany, admitted into evidence under the state of mind exception:

• That she was in fear for her life and would get very scared; and
• That the actions of the accused caused her to worry a lot, worried about the accused being on the property or right outside her home, worried about him gaining entrance to the home, worried about the children.

[122] On direct examination, Mr. Albany testified that the first of these statements was made to him approximately two days before the fire, with the balance being made to him approximately one week before the fire.

[123] Given both the circumstances of the case and the Crown’s primary theory, I am satisfied that these statements are relevant. The statements could allow a trier of fact to draw a reasonable conclusion as to Geraldine Chapman’s state of mind at the time they were made, and her state of mind is directly relevant to the underlying offence of criminal harassment.

[124] The cross-examination of Mr. Albany on the voir dire established some uncertainty as to when exactly Ms. Chapman made these statements to Ms. Albany, and therefore when the underlying events may have occurred. I accept the submission of the accused that this reduces the relevancy of the evidence; however, it does not negate it entirely.

[125] While the accused challenged the closeness of Mr. Albany and Geraldine Chapman’s relationship, I am satisfied that the two were good friends for many years prior to Ms. Chapman’s death on May 2, 2019. During this friendship, Mr. Albany would drop into Ms. Chapman’s convenience store on an almost daily basis for coffee, and she would frequently drop over to his house to visit and chat with Mr. Albany and his partner Patsy Petiquan.

[126] It is consistent with common sense for lifelong friends who regularly met to chat to discuss with, and confide in each other, about issues in their respective domestic relationships, particularly if one of the friends was in a dysfunctional relationship and feared for her life. I am satisfied that the statements attributed by Mr. Albany to Ms. Chapman were made in a natural manner, as required under the state of mind exception.

[127] Given the presumption of reliability underlying the state of mind exception, it falls to the accused to show circumstances of suspicion: see Starr, at para. 8. I am not persuaded that the frailties of Mr. Albany’s evidence, as drawn out in cross-examination, in relation to when Ms. Chapman made these statements to him, his level of drinking in 2019, the closeness of his relationship with Creighton Beardy, and other matters, amount to circumstances of suspicion within the meaning of the state of mind exception. These issues are matters of ultimate reliability at trial.

[128] I find that, on a balance of probabilities, the above statements from Geraldine Chapman to Mr. Albany meet the requirements of the state of mind exception to the hearsay rule and are therefore admissible as proof of her emotional state at the time the statements were made.

The Principled Exception

[129] The Crown seeks to have the balance of the statements attributed by Stewart Albany to Geraldine Chapman, as set out in the summary of his evidence above, admitted under the principled exception to the rule against hearsay.

[130] On direct examination, Stewart Albany testified that, two days before the fire, Geraldine Chapman told him the accused threatened her with a knife or syringe approximately one week prior to their conversation (being nine days prior to the fire). He further testified that, about a week before the fire, Geraldine Chapman told him that the accused would threaten her with an object, either a knife or a syringe.

[131] Once again, given the specific circumstances of this case and the Crown’s primary theory, these statements are relevant. The state of the relationship between an accused and a deceased in the time leading up to the death of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing.

[132] However, I am not persuaded that the contemporaneous cross-examination of Geraldine Chapman on these specific statements would be unproductive. The cross-examination of Stewart Albany established that he was uncertain as to when Geraldine Chapman made these statements to him, and uncertain as to when the events described by Geraldine Chapman apparently took place. The cross-examination of Geraldine Chapman may very well have cast further doubt on this timing issue, although to what extent remains unknown. This, in turn, could impact the weight given to this evidence.

[133] The evidence establishes that Geraldine Chapman and the accused often drank together, including in the period immediately prior to the fire, which would have been after Geraldine Chapman said she had been threatened with a knife or syringe by the accused. The evidence also establishes that Geraldine Chapman allowed the accused into 854 Macheetao Road to care for their daughter at the end of April 2019, again after Geraldine Chapman said the accused had threatened her with a knife or syringe. The statement that the accused threatened Geraldine Chapman with a knife or syringe is devoid of any further details as to the circumstances in which the threats were allegedly made. For example, was Geraldine Chapman intoxicated at the time of these alleged threats such that the reliability of her utterances could be challenged?

[134] As noted by the accused, physical violence and threats within a domestic relationship are not always a “one way street”. As distasteful as it may seem to some, the cross-examination of an alleged victim of threats or violence within a domestic relationship can impact the credibility of an alleged victim, as well as the reliability of that witness’ evidence. I am not persuaded that these statements are so reliable that the contemporaneous cross-examination of Geraldine Chapman would be futile.

[135] The material aspect of these specific statements that the Crown is seeking to have admitted for the truth of their contents is apparent – very shortly before the fire, the accused directly threatened Geraldine Chapman with serious physical harm using a deadly weapon. The hearsay dangers raised in relation to this highly prejudicial evidence, because of the inability to cross-examine the declarant, have been identified above.

[136] I am not persuaded that the corroborative evidence proffered by the Crown, viewed cumulatively, enhances the substantive reliability of the material aspects of these hearsay statements to the extent required. In my view, the corroborative evidence suggested by the Crown does not allow me to conclude that the only likely explanation for these specific hearsay statements is Geraldine Chapman’s truthfulness or accuracy when she apparently made them.

[137] I find that the substantive reliability of these statements – for clarity, the statements Stewart Albany testified that Geraldine Chapman made to him alleging the accused threatened her with a knife or syringe – has not been established on a balance of probabilities. These statements are, therefore, ruled inadmissible.

[138] I am persuaded, on a balance of probabilities, of the substantive reliability of the remaining statements that Stewart Albany testified Geraldine Chapman made to him. Given the nature of the relationship between Stewart Albany and Geraldine Chapman, and the fact that Stewart Albany and the accused were also friends, there would be no reason for Geraldine Chaman to have been untruthful when talking with Stewart Albany. As noted above, the matters disclosed by Geraldine Chapman to Stewart Albany are the type of issues one would expect to be discussed between close friends.

[139] While the accused indirectly challenged Stewart Albany’s credibility, there has been no plausible suggestion as to why Geraldine Chapman herself would have been untruthful when talking with Stewart Albany about these events. Stewart Albany also testified that Geraldine Chapman was sober and communicating clearly with him when the statements were made.

[140] Finally, the probative value of this body of evidence, given the circumstances of the case and the Crown’s primary theory, exceeds any prejudicial effect it may have. I find that the balance of statements which Stewart Albany testified that Geraldine Chapman made to him are admissible, subject to those ruled inadmissible above.

Tom Chapman

The State of Mind Exception

[141] The Crown applies to have the following statements, allegedly made by Geraldine Chapman to Tom Chapman between April and November 2017, admitted into evidence under the state of mind exception:

• That she didn’t want the accused being around the kids;
• That she didn’t feel safe;
• That she didn’t feel it was good for the kids for Archie to be around;
• That she was uncomfortable with the accused being there;
• That she didn’t want him coming around; and
• That he was annoying her and was not wanted at her place.

[142] I reject the Crown’s submission that any of these statements are potentially probative of, and therefore relevant to, the issues of motive to kill and, in turn, intent and identity. I accept the Crown’s submission that the single statement, that being she “didn’t feel safe”, is potentially probative of Ms. Chapman’s fear of the accused and of the underlying offence of criminal harassment; therefore, it is relevant.

[143] The remaining statements are not probative of any issues before the court, and are therefore inadmissible under both the state of mind and principled exceptions to the hearsay rule.

[144] A review of Tom Chapman’s evidence confirms that the statement, “[s]he didn’t feel safe” is taken from the following question and answer on his direct examination during the voir dire:

Q. She would say to you what about wanting Mr. McKay around? A. Yeah, just like regarding towards like um, towards like, her kids. She didn’t want – she didn’t want him being around kids and young younger ones. She didn’t feel safe I guess. She didn’t feel safe.

[145] Noticeably, Tom Chapman’s response could be construed as his own personal conclusion regarding Geraldine Chapman’s emotional state, as opposed to direct evidence of her state of mind. In addition, the portion of Tom Chapman’s response preceding, “[s]he didn’t feel safe I guess”, and his responses to follow-up questions asked of him, refer only to her concerns about the children and, as such, cannot reasonably be used to draw an inference about her contemporaneous emotional state.

[146] I am not persuaded that this statement is direct or indirect evidence of Ms. Chapman’s emotional state at the time she apparently spoke to Tom Chapman. It is therefore inadmissible under the state of mind exception to the hearsay rule.

[147] All the statements which Tom Chapman testified Geraldine Chapman made to him, and which the Crown seeks to have admitted under the state of mind exception, are likewise ruled inadmissible under this exception.

The Principled Exception

[148] The Crown applies to have the statement, “[s]he didn’t feel safe”, previously ruled inadmissible under the state of mind exception, admitted under the principled exception. The Crown also applies to have the following statements, which Tom Chapman testified Geraldine Chapman made to him between April and November 2017, admitted under the principled exception:

• The accused would peek through windows and try to come into the house;
• If Geraldine Chapman didn’t let him in, he would break the door to get in;
• The accused would be around the building, keeping an eye on her, almost like stalking her and sleep in the shed;
• The accused would try to be there when she didn’t want him there;
• The accused was always out there and she would notice him through the windows;
• The accused seemed almost obsessed with her and wouldn’t leave her alone;
• She wanted the kids to be in a safe environment; and
• She didn’t want the accused being at home when intoxicated.

[149] With two exceptions, I am persuaded that this body of evidence is probative, and therefore relevant, based on the circumstances of this case and the Crown’s need to prove the underlying offence of criminal harassment.

[150] The following statements are not probative of anything in this case:

• She wanted the kids to be in a safe environment; and
• She didn’t like Archie being at the home when he was intoxicated.

[151] They are therefore irrelevant and inadmissible.

[152] As set out above, one of the statements that Tom Chapman attributed to Geraldine Chapman - that “[s]he didn’t feel safe” - was qualified by the words, “I guess”. I am not satisfied that this was a statement uttered by Geraldine Chapman, as opposed to Tom Chapman’s conclusion or interpretation of what Geraldine Chapman may have said. Given that I am not persuaded that Geraldine Chapman made this statement, I find that it is also inadmissible under the principled exception.

[153] The cross-examination of Tom Chapman on the voir dire was very effective. It was Tom Chapman who approached the police to provide a statement, only after he heard that the accused had been arrested and charged with five counts of first-degree murder. Tom Chapman admitted while testifying that it was his opinion, at the time he spoke to police, that the accused was responsible for the fire; furthermore, he agreed to the suggestion that his motive in approaching and speaking with police initially was "providing them information that could be used to help convict Archie McKay". In my view, the nature of Tom Chapman’s evidence on the voir dire was consistent with this acknowledgement.

[154] Tom Chapman was also cross-examined on his use of the words “stalking” and “obsessed” in relation to the accused’s behaviour toward Geraldine Chapman. He acknowledged on cross-examination that this was his interpretation or conclusion of what the accused was doing, and not something Geraldine Chapman explicitly stated. The Crown’s attempt to establish otherwise on re-examination was, in my view, unsuccessful.

[155] As noted above, Tom Chapman’s evidence that “[s]he didn’t feel safe”, in reference to Geraldine Chapman, was followed by the words, “I guess”. Once again, it appears that this is Tom Chapman’s conclusion, or interpretation, of what Geraldine Chapman told him regarding the accused, as opposed to her actual words.

[156] The balance of Geraldine Chapman’s hearsay statements that the Crown seeks to have admitted through Tom Chapman, both individually and as a collective, represent a series of undated allegations relating to the accused’s presence in the vicinity of 854 Macheetao Road, the accused’s alleged attempts to get into the residence, and the accused allegedly sleeping in outbuildings if denied entry. The accused’s inability to cross-examine Geraldine Chapman about this evidence denies him the opportunity to probe the complete dynamics of this relationship and the fact that the accused habitually resided at 854 Macheetao Road.

[157] The circumstances surrounding these statements, including but not limited to Tom Chapman’s conclusions and his expressions of bias toward the accused, preclude me from finding them so reliable that they are unlikely to change under the cross-examination of Geraldine Chapman, as required by the principled exception. In my view, the corroborative evidence proffered by the Crown does not assist in the analysis.

[158] If I am incorrect in this conclusion, I also find that the prejudicial effect of the evidence exceeds its very limited probative value. The prejudicial effect of admitting a series of hearsay statements, untested by cross-examination, through a witness with an obvious bias against the accused, is significant, and outweighs the suggested probative value of this evidence. In the exercise of my gatekeeping function, and in accordance with my residual discretion, I find this evidence inadmissible.

Thyra Chapman

[159] The Crown applies to have the following statements, allegedly made to Thyra Chapman by Geraldine Chapman, admitted into evidence for the truth of their contents under the principled exception to the hearsay rule:

• That she was tired of being accused all the time by Archie McKay of cheating, having other guys at the home, or talking to other guys; and
• That Archie McKay had come to the house overnight, tried to rip the door off the hinges, and scared her brother Karl.

[160] The first of these statements was made when Thyra Chapman was 15, 16, or 17 years old. The second was made when Thyra Chapman was approximately 18 years old. The accused concedes necessity, given the death of Geraldine Chapman. The Crown relies only on the substantive reliability of these statements. To prove admissibility, the Crown must first establish the relevance of this evidence, and then its substantive reliability, on a balance of probabilities.

[161] Given the circumstances of the case and the Crown’s primary theory, I am satisfied that this evidence is relevant. If ruled admissible, this evidence would be probative of both the general state of the relationship between the accused and Geraldine Chapman in the years prior to the fire, and of the accused’s jealousy and accusatory attitude, as well as purportedly violent and destructive disposition, towards Geraldine Chapman.

[162] Thyra Chapman is the biological daughter of Geraldine Chapman. She testified that her mother began to confide in her about her relationship with the accused when Thyra Chapman was 15, 16, or 17 years old and that her mother continued to do so thereafter.

[163] In my view, it is understandable that a mother would confide in her teenage daughter about being in an abusive relationship, particularly so if the daughter is not the biological child of the abusive partner. There has been no logical or plausible reason suggested for Geraldine Chapman to have been untruthful when making these statements to her daughter. It is apparent that Thyra Chapman did not like the accused, both before and after the fire. However, there is no evidence to suggest that Thyra Chapman prompted her mother to divulge information about her relationship or the accused. While there is evidence before the court showing that Geraldine Chapman was a habitual drinker, there is no evidence to suggest that she was intoxicated when she made these statements to her daughter.

[164] I recognize that the standard for substantive reliability is high, but absolute certainty is not required. I suspect that cross-examination of Geraldine Chapman as to the truth or accuracy of these statements would not add anything substantive to the process.

[165] I am satisfied that the only likely reason that Geraldine Chapman confided in her daughter and made these statements is because they were true. I find that the Crown has established the substantive and threshold reliability of these statements on a balance of probabilities. The statements that Thyra Chapman testified to her mother making are ruled admissible.

[166] Counsel have very helpfully compiled an Agreed Statement of Facts incorporating my Reasons on Application in relation to the Crown’s earlier application to admit certain extrinsic misconduct evidence (Exhibit 98): see R. v. McKay, 2023 ONSC 5817. I would be indebted to counsel if they could do the same in relation to this decision and my Reasons on Application regarding the Crown’s Past Recollection Recorded Application: see R. v. McKay, 2024 ONSC 4747.

The Hon. Mr. Justice J.S. Fregeau Released: September 4, 2024