Ontario Superior Court of Justice

Court File No.: CR 2023-07
Date: 2025/02/21

BETWEEN:
His Majesty the King
and
Kyle Trepanier (Accused/Respondent)

Appearances:
Alexandre Simard, for the Crown
Mark Ertel, for the Accused/Respondent

Heard: December 16, 2024

Decision on Hearsay Application
Holowka J.

Overview

[1] Kyle Trepanier was involved in a motor vehicle collision on October 9, 2022. The sole passenger in his vehicle, Emma Roy, died from her injuries. Mr. Trepanier’s trial for criminal charges arising from this incident is scheduled for May 20-24 and July 2, 2025.

[2] The Crown seeks a ruling declaring that an ante mortem statement of Emma Roy made to Christopher Prieur on October 7, 2022, is admissible according to the principled exception to the hearsay rule as prior discreditable conduct.

[3] The material aspects of the statement the Crown seeks to tender are:

a. Ms. Roy and Mr. Trepanier, on or about October 5, 2022, went for a car ride together in Mr. Trepanier's Hyundai Genesis.
b. Mr. Trepanier was driving at an extremely fast speed of around 260 km/h.
c. Ms. Roy was fearful of the manner of Mr. Trepanier’s driving.

[4] There are two issues to be determined:

a. First, does the ante mortem statement satisfy the requirement of threshold reliability?
b. Second, if it does satisfy the requirements of the principled approach to the admissibility of hearsay evidence, is it admissible as prior discreditable conduct?

[5] I conclude that the evidence sought to be admitted by the Crown does not satisfy the requirements of threshold reliability. The content and circumstances of the making of the statement do not negate the possibility that the declarant was untruthful or mistaken. The Crown application is dismissed.

The Factual Background

[6] The factual allegations relied upon by the Crown are as follows:

a. On October 9, 2022, shortly after 9 pm, Mr. Trepanier was operating his motor vehicle westbound on County Road, east of Wendover, ON. Ms. Emma Roy was a passenger in the car sitting beside Mr. Trepanier.
b. Mr. Trepanier was driving in tandem with Mr. Trudeau, who was in his own vehicle.
c. Mr. Trepanier passed two vehicles that were also travelling westbound. He was travelling at a high rate of speed. One of the vehicles passed by Mr. Trepanier was the vehicle operated by Mr. Trudeau.
d. Shortly after passing Mr. Trudeau’s vehicle, Mr. Trepanier was involved in a head-on collision with a pickup truck. This truck was travelling eastbound towards Plantagenet.
e. The driver of the truck suffered serious injuries, and the passenger sustained minor injuries.
f. The police obtained a search warrant to download the data from the Engine Control Module (ECM) on the car driven by Mr. Trepanier. The pre-crash data retrieved indicated that the vehicle driven by Mr. Trepanier was travelling at a speed of 200 km/h when the collision occurred. Ms. Roy succumbed to her injuries after she arrived at the Montfort Hospital in Ottawa.

[7] Ms. Roy made a statement to Christopher Prieur on October 7, 2022—two days before the motor vehicle collision, about Mr. Trepanier’s driving. The Crown seeks to have this statement admitted for the truth of its contents at the upcoming trial.

[8] Mr. Prieur provided statements to the police on November 10, 2022, and December 1, 2022. He also testified at examinations for discovery on December 19, 2024, where he was cross-examined by counsel for Mr. Trepanier. The evidence at the voir dire regarding the proffered statement emanates from transcripts of these statements and the discovery.

[9] I make the following findings regarding the circumstances surrounding Ms. Roy’s statement:

a. Emma Roy and Mr. Prieur had known each other for about two years. They were in a relationship for about a year and a half. They were in love and had a confiding and trusting relationship—they told each other everything.
b. From August to September 2022, the relationship between Ms. Roy and Mr. Prieur began to deteriorate—it was no longer working. By October, the relationship was rocky.
c. On October 5th, 2022, Ms. Roy attended the Ottawa region. Mr. Prieur was not invited.
d. Upon her return from Ottawa, Mr. Prieur asked Ms. Roy to go for a drive. The two of them went for a drive in the Cornwall/Alexandria/Lancaster area during the early morning hours of October 7, 2022. The drive lasted between one to two hours.

[10] Mr. Prieur testified at the examination for discovery about the following aspects of conversation during the drive, evidence I accept on this application:

a. Ms. Roy was quiet the weekend she was gone. He described her as being “shady” during that time. Mr. Prieur stated that he wanted an in-person conversation regarding what was happening.
b. Initially, the conversation was about their relationship. He wanted to fix and work on the relationship, but Ms. Roy wanted to leave it.
c. He eventually decided to put that topic aside and enjoy the conversation with Ms. Roy.
d. He asked Ms. Roy about her time in Ottawa and with whom she was hanging out. Ms. Roy stated that she had stayed at Jenny’s residence. She also told him that she hung out with friends, one of whom was Kyle Trepanier.
e. Without being prompted or questioned, Ms. Roy told him that she had gone on a car ride with Kyle Trepanier and that “apparently he was driving around 260 km/h.” She told him that she was scared while in the car. She stated that Mr. Trepanier was driving his Genesis.
f. Mr. Prieur said they were talking about Ms. Roy’s time in Ottawa and all of the people she had been hanging out with when she told him about Kyle Trepanier taking her for a ride in his car.
g. Mr. Prieur testified that Ms. Roy rarely got scared in a car—it shocked him to hear her say it.

[11] Mr. Prieur testified that he later discovered that Ms. Roy had been staying with Mr. Trepanier during her trip to Ottawa.

[12] Regarding their relationship, Mr. Prieur stated that Ms. Roy had never stopped him from going on her phone, but this ended on October 5, 2022, when she started acting strangely. He explained that he was no longer permitted to touch her phone. The day before the motor vehicle collision, he had to look at Ms. Roy’s phone and discovered that she had been talking with Mr. Trepanier. He saw a reference to Ms. Roy and Mr. Trepanier cuddling on a couch. Mr. Prieur testified that he felt sad when he discovered this.

[13] In cross-examination, Mr. Prieur acknowledged that Ms. Roy’s view was that there would be, at least, a time-out. He wished to remain a couple. They did not see eye-to-eye on things. Ms. Roy had previously been talking with an older boyfriend about working things out with him, but this did not happen. Mr. Prieur acknowledged that Ms. Roy was not open with him about Mr. Trepanier and had repeatedly lied about where she had stayed in Ottawa and with whom. He agreed that this made him feel a little jealous and angry. He clarified that the lying developed towards the end of their relationship.

[14] Mr. Prieur agreed that Ms. Roy was lying about the trip to Ottawa in the same conversation when she told him about Mr. Trepanier driving at 260 km/h.

The Principled Exception to the Hearsay Rule

The Position of the Parties

[15] The Crown seeks admission of Ms. Roy’s ante mortem statement under the principled exception to the hearsay rule. The Crown submits that it is relevant to the following issues:

a. For narrative purpose to avoid a distorted picture of the evidence. The assessment of the evidence cannot be done in a vacuum without the statement. It is relevant to ensure fairness in the competing versions of driving behaviour as anticipated in the trial.
b. It is required to assess the credibility/reliability of witnesses and the pre-collision data downloaded from Mr. Trepanier’s motor vehicle.

[16] The Crown also argues that the statement may be relevant in assessing defence evidence and rebutting possible defence evidence that Mr. Trepanier is a prudent and responsible driver.

[17] In submitting the foregoing, the Crown submitted that the statement is not tendered for any purpose connected to any propensity reasoning.

[18] The Crown argues that the proffered evidence satisfies the criteria of necessity and reliability. The Crown maintains that necessity is satisfied as Ms. Roy is deceased. The Crown contends that threshold reliability is satisfied as per R. v. Bradshaw, 2017 SCC 25, such that the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

[19] Threshold reliability can be established by factors supporting procedural reliability, substantive reliability, or some combination of both. The Crown acknowledges that given the nature of the statement, procedural reliability factors play no role in establishing threshold reliability. For example, Ms. Roy's statement was neither recorded nor given under oath, and no warning about the consequences of lying had been provided.

[20] The Crown submits that the following substantive reliability factors satisfy threshold reliability on the balance of probability:

a. The nature of the relationship between Ms. Roy and Mr. Prieur: Ms. Roy made the proffered statement to a trusted friend/boyfriend during a normal conversation. The circumstances show a complete absence of any basis to believe that Ms. Roy would lie or fabricate any part of her description of Mr. Trepanier’s driving behaviour to Mr. Prieur.
b. The statement was unprompted/spontaneous: The conversation occurred in a spontaneous, ongoing fashion between the deceased and her trusted confidant.
c. The proximity between the event described by the declarant and the time the statement was made.
d. The absence of motive to lie.
e. Emotional state of the declarant.

[21] The Crown argues that the foregoing indicia of reliability are buttressed by corroborative evidence; specifically, the pre-collision data downloaded from Mr. Trepanier’s Genesis that shows he was driving at approximately 200 km/h five seconds before the October 9, 2022, collision.

[22] The defence submits that Ms. Roy’s statement is inadmissible.

[23] The defence argues that the statement is irrelevant; therefore, the analysis required for its admission pursuant to the principled exception to the hearsay rule is unnecessary. The defence submits that the statement is unnecessary because Mr. Trepanier’s driving behaviour on October 5, 2022, is not at issue.

[24] The defence further submits that Ms. Roy’s statement is not corroborated. The defence cites Bradshaw for the proposition that corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on.

[25] The defence submits that the cross-examination of Mr. Prieur during the examination for discovery revealed the following factors that diminish the threshold reliability of the statement:

a. The statement was not made without prompting or questioning.
b. Mr. Prieur offered no evidence regarding Ms. Roy’s demeanour.
c. There was considerable conversation about Mr. Trepanier.
d. Ms. Roy lied to Mr. Prieur about her relationship with Mr. Trepanier for several days before the October 7, 2022, conversation. This continued during the conversation.

[26] The defence submits that the nature of the relationship is the sole factor of substantive reliability available to the Crown in support of its application for admission of the statement. That said, on the day of the statement, the defence argues that Ms. Roy was not confiding to Mr. Prieur but was lying to him, a fact he discovered days later when he searched Ms. Roy’s phone without her permission. The defence submits that the statement was not made in a confiding relationship, where it would be doubtful that the declarant would not lie.

[27] In conclusion, the defence submits that because cross-examination is unavailable, the hearsay dangers in this case cannot be overcome due to the complete lack of circumstantial guarantees of reliability or corroboration.

Analysis

[28] Evidence may only be admitted if it relates logically to an issue in the case. Regardless of whether it is in hearsay form, evidence is inadmissible if irrelevant. See R. v. Blackman, 2009 SCC 27, para 29.

[29] I find that the proposed evidence of Ms. Roy's ante mortem statement is not relevant. I do not accept that the evidence is necessary for the narrative. The events are understandable without Ms. Roy's statement being admitted for the truth of its contents. I also do not accept that the proffered evidence of Mr. Trepanier’s driving on October 5, 2022, is relevant to his alleged driving behaviour on October 9, 2022, without engaging in propensity reasoning. Without engaging in propensity reasoning, it cannot be said as a matter of logic and common sense that the proffered evidence regarding his driving on October 5 makes it more likely that he was driving at a high rate of speed on October 9.

[30] For the same reasons, I do not accept that the ante mortem statement of Ms. Roy regarding Mr. Trepanier’s driving on October 5 is of assistance in assessing the credibility/reliability of witnesses concerning the events of October 9 or the validity of the pre-crash event data downloaded from Mr. Trepanier’s car following the collision.

[31] It may be that certain defences will arise during the trial that render Ms. Roy's out-of-court statement relevant. For example, the statement may be relevant to rebut evidence that Mr. Trepanier is a prudent or reasonable driver should that evidence be tendered in his defence. It may be relevant if the accused puts his character into issue. It may be relevant to challenge Mr. Trepanier’s credibility.

[32] Given the ongoing and developing nature of trials, determining relevance is challenging. I agree with the Crown that relevance must be assessed within the context of other evidence at trial and that establishing relevance cannot be an exacting standard. See Blackman, at para 38.

[33] While the evidence is irrelevant at present, it may become relevant as the evidence develops at the trial. As such, I will assess the admissibility of the proffered statement considering the criteria of necessity and reliability.

[34] The necessity criterion requires the party seeking admission of hearsay evidence to prove, on the balance of probabilities, that it is reasonably necessary to resort to the hearsay exception. As Ms. Roy is deceased, the necessity criterion is satisfied.

[35] The reliability criterion must similarly be satisfied, on the balance of probabilities, by the party seeking admission of the hearsay statement. This requirement is usually met where the party seeking admission establishes that there is (a) no concern about the truth of the statement because of the circumstances in which the statement was made (substantial reliability), or (b) no real concerns arise from the hearsay statement because the circumstances permit testing of its truth and accuracy by means other than contemporaneous cross-examination (procedural reliability).

[36] The Crown concedes that given the nature and circumstances of the statement made by Ms. Roy to Mr. Prieur, no procedural reliability factors favour admission. I agree with this concession—there is no basis upon which to rationally evaluate the truth and accuracy of the hearsay statements based on traditional procedural safeguards such as recording the statement, an oath, or a warning about the consequences of lying.

[37] Substantive reliability is established when the hearsay statement is unlikely to change under cross-examination. To determine whether the party proffering the statement has established substantive reliability, I should consider (a) the circumstances in which the statement was made and (b) any evidence that corroborates or conflicts with the statement. See Bradshaw, at para. 30.

[38] The Crown’s submission is that the statement was made in the context of a trusting, confiding relationship between Ms. Roy and Mr. Prieur—one where Ms. Roy would confide the unalloyed truth to Mr. Prieur. I disagree that the relationship between Ms. Roy and Mr. Prieur at the beginning of October 2022 was close and trusting. The evidence of Mr. Prieur in cross-examination revealed that Ms. Roy was lying to Mr. Prieur about where and with whom she was staying during her trip to Ottawa. She was concealing the nature of her nascent relationship with Mr. Trepanier. She took steps to prevent Mr. Prieur from learning the truth of the situation by preventing Mr. Prieur from accessing electronic messages on her phone. I do not accept that she lacked a motive to lie to Mr. Prieur about Mr. Trepanier. The evidentiary record discloses that Ms. Roy lied to Mr. Prieur about her time with Mr. Trepanier.

[39] Moreover, the ante mortem statement regarding the relationship occurred in a tense, stressful conversation between Ms. Roy and Mr. Prieur. The two were in the midst of a potential break-up. Ms. Roy wanted, at the very least, a pause in the relationship, while Mr. Prieur wanted their relationship to continue and for the two of them to try to work on it. The nature of these circumstances does not enhance the reliability of Ms. Roy’s statement.

[40] I disagree with the Crown that there is any corroborating evidence. A “trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” See Bradshaw at para. 44.

[41] The Crown asserts that the driving data downloaded from Mr. Trepanier’s motor vehicle is corroborative of Ms. Roy’s ante mortem statement that Mr. Trepanier was driving at 260 km/h days earlier. In my view, the driving data regarding one date cannot corroborate an assertion about driving days earlier. Corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on. See Bradshaw, at para. 45.

[42] The Crown also points to Ms. Roy's demeanour when making the statement to Mr. Prieur. Respectfully, the evidence relied upon by the Crown is not demeanour evidence. The evidence does not describe her demeanour, and, as a result, her demeanour cannot be considered a circumstance enhancing the threshold reliability of the statement. The transcript of Mr. Prieur’s testimony from the examinations for discovery on this point does not support the Crown’s submission regarding demeanour. It reads:

Q. Okay. Go on.
A. And then she was telling me, like - like I said, she was staying at Jenny’s at the - like, her house or whatever, and they were hanging out at her shop, and she was hanging out there with a couple people, Kyle being one of them, and that they had went for a ride in his car, I guess, and he apparently was driving around 260 kilometres an hour, and she had told me that she was scared. And knowing Emma (ph) as long as I did, she rarely got scared in a car. Like, it took a lot to - to scare her, I guess.
[page 14, line 1]
Q. Did she say she was scared...
A. That’s...
Q. ...or she....
A. ...what she said to me.
Q. Okay. And what about her demeanour when she shared that with you?
A. Like I said, she rarely would get scared in a car, kind of thing, and that was, like - it was

[43] The foregoing does not describe Ms. Roy’s demeanour when she made the statement to Mr. Prieur. It provides no circumstantial support for the statement’s reliability.

[44] In summary, the hearsay danger in this case relates to the sincerity of Ms. Roy in making the statement about Mr. Trepanier’s driving to Mr. Prieur. The conversation commenced on the topic of the future of their relationship—a subject fraught with conflict, emotion, and deception. At this stage of her relationship with Mr. Prieur, Ms. Roy was lying to him about her relationship with Mr. Trepanier. No circumstantial guarantees of trustworthiness are capable of satisfying the threshold reliability concern. I am not satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process". See R. v. Khelawon, 2002 SCC 57, para 49.

Prior Discreditable Conduct

[45] Given that the ante mortem statement of Ms. Roy is inadmissible under the principled exception to the hearsay rule, I need not consider the statement’s admissibility as prior discreditable conduct.

Conclusion

[46] For the above reasons, the Crown’s application is dismissed.

Brian Holowka
Released: February 21, 2025