R. v. Giammichele, 2025 ONSC 1855

COURT FILE NO.: CR-24-915 DATE: 2025-06-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Amber Lepchuk & Elise Quinn, for the Applicant Applicant

• and - ALESSANDRO GIAMMICHELE Kendra Stanyon, for the Respondent Respondent HEARD: January 20, 2025 RULING ON ANTE-MORTEM STATEMENT SKARICA, J. (Orally)

[ 1 ] This is my ruling in the matter of R v. Alessandro Giammichele, for anti-mortem statements.

OVERVIEW

[ 2 ] On November 22 nd , 2018, at 8:15 p.m., Mark Bakir was shot several times in his driveway causing his death. On September 6 th of 2018, Mark Bakir loaned the accused Alessandro Giammichele $100,000. Interest payments of $17,000 were due in October and November 2018 but were never paid. The contract was signed on September 6 th , 2018.

[ 3 ] Mark Bakir texted the accused numerous times complaining about the lack of payment. Regarding the lack of payments, Mark Bakir also texted and/or spoke with:

1. His sister Roza Bakir.
2. His brother Rawand Bakir.
3. A close friend, Ian Pickering. Ian was also present during a phone conversation between the accused and Mr. Bakir when Mr. Bakir was yelling at the accused about money’s owing.
4. Mark Bakir’s girlfriend, Kamila Baranska, also overheard arguments wherein Mr. Marko Bakir or Mr. Mark Bakir, and I will just refer to him as Mark, had arguments with the accused over money owing.
5. There were also conversations with a close friend, Ryan Ramjeawan, who received oral complaints from Mr. Bakir, and who, with Ian Pickering, phoned Mr. Bakir about the debt owing shortly before the murder.

[ 4 ] Also, a close friend, Frank Kalanyos was told about the loan by Mr. Bakir.

ISSUES :

[ 5 ] The Crown seeks to introduce the deceased’s ante-mortem text and statements about the loan to Mr. Giammichele. The defence concedes that the written and voice messages of Mark to the deceased’s friends and family are reliable hearsay statements with respect to the deceased’s state of mind and animus. However, the defence objects to the admission of some of the hearsay conversations, arguing that those conversations do not add anything that is not already captured in the recorded and written communications of Mr. Bakir, with Mark, and accordingly that the necessity requirement is not met.

[ 6 ] In addition, the defence contends that some of the communications are prejudicial and that prejudicial effect exceeds any probative value.

Briefly, the facts:

[ 7 ] On November 22 nd , 2018, at approximately 8:15 p.m., Mark was shot multiple times in the driveway of his residence located at 238 Clifton Downs Road in Hamilton.

[ 8 ] In August 2018, Mark received an approximate $300,000 insurance settlement from a motorcycle accident. He used the money to purchase a Lamborghini and also used the money as a down payment on a house at 238 Clifton Downs Road in Hamilton.

[ 9 ] On September 6 th , 2018, Alessandro Giammichele, and I will refer to him as the accused, and Mark entered into a written contract where Mark loaned the accused $100,000. Interest payments of $17,000 monthly would be paid on September 6 th and October 6 th of 2018.

[ 10 ] $50,000 was to be returned upon request by Mark by November 20 th of 2018, and the remaining $50,000 would be returned on two weeks’ notice. See the contract at page B-1923 of the Crown materials.

[ 11 ] Outside of a $4,500 payment, the interest payments due on October 6 th , 2018, and November 6 th , 2018, were never paid.

[ 12 ] Bank records of Mark relating to Account 552360783781, I will refer to it as the main bank account, reveal the following information:

1. August 24, 2018, deposit of $362,150.52. See B-2667.
2. September 6 th , 2018, withdrawal of a hundred thousand dollars. See B-2668.
3. October 22, 2018, balance of $1.80. See page B-2670.
4. October 22, 2018, there was a deposit of $7,000. See B-2670. There was a new balance on that date of $7,001.80.
5. October 29, 2018, a week later, there was an opening balance of $929.50. And on that day, there was a closing balance of $192.58. See B-2671.
6. November 1 st , 2018. After deposits, there was a $2,909.17 balance. After a withdrawal, there was $192.17 left in the account. See page B-2672.
7. November 5, 2018, there was a closing balance of $163.13. See page B-2672.
8. November 12 th , 2018, closing balance, $2.73. See page B-2672.
9. November 17 th , 2018, closing balance, negative -$38.85. See B-2672. 10.December 17 th through 28, there were all negative balances. The closing balance was a minus -$149.47. See B-2673.

[ 13 ] So essentially, after November 17 th , 2018, the main account was in a negative balance. There was also, what I understand, a US dollar account, the Account 552360636223, with minimal funds in it throughout 2018. It started off with a balance of maximum of $53.84 for 2018, and it declined by a dollar per month thereafter.

Text messages between the accused and Mark Bakir:

[ 14 ] On October 30 th , 2028, the accused left for Italy for two weeks to spread the ashes of his mother, according to him. Mr. Bakir, Mark, communicated to the accused in WhatsApp and Facebook regarding the non-payment of his interest payments. At page 50 of the text message brief between the accused and Mark, on October 30 th , 2018, Mark makes the first mention in his text requesting money. According to Mark, Mark needed money to make his mortgage payments. The bank records seem to confirm that.

[ 15 ] On November 6, 2018, Mark put in his two weeks’ notice that he wanted his money back on the deal. The accused texted back that Mark would get $100,000 back plus $10,000 on November 30 th , 2018. See page 111 of the text message brief between the accused and Mark.

[ 16 ] Throughout the text message brief, the accused made numerous excuses for non-payment and he always promised future payment. However, those promises were not kept. Mark owed his sister Roza money, $1,820 and she got involved in the communications. On or about November 11 th , 2018, the accused transferred Roza the $1,820 that Mark owed Roza.

[ 17 ] Messages between the accused and Mark continued until November 19, 2018, and they pretty well dried up after that. On November 21 st , Mark indicates that the accused deleted his message. Later that day, on November 21 st , the accused invites Mark to come over to his shop and get $5,000. See page 291 of the text brief between the accused and Mark.

[ 18 ] The text messages suggest that the accused was to pay Mark $5,000 on November 18 th , $50,000 on November 20 th , and $53,00 on November 30 th . See page 284 to 285 of the texts between the accused and Mark. These sums were not paid. Then, on November 22 nd , 2018, Mark was shot and killed in his driveway.

[ 19 ] The accused and Mark also communicated by text on Facebook. These texts begin on November 11 th , 2018, and end on November 19 th , 2018.

Text messages and conversations between Roza Bakir and Mark Bakir:

[ 20 ] On November 19 th , 2018, Mark texted Roza about Mr. Giammichele owing – actually, that’s the wrong date. But in November, Mark texted Roza about Mr. Giammichele owing Mark money and asked her to text the accused about it. Shortly after the shooting, the accused blocked Roza’s WhatsApp contact. See page 10 of Roza’s police statement.

[ 21 ] On November 11 th , 2018, Roza was involved in a group WhatsApp conversation between the accused, Mark, and herself. See page 8 and 17 of Roza’s police statement and paragraph 26 of the Crown factum. The group conversation appears at B-2295 to B-2300, and Mark is very upset about not getting paid.

[ 22 ] At paragraph 27 of its factum, the Crown summarizes a conversation between Roza and Mark as follows:

[As Read] Mr. Bakir told Roza he wanted to kill Mr. Giammichele, but it was because he was so angry. He told Roza that he loved Mr. Giammichele like a brother and just could not believe Mr. Giammichele would screw him over. Roza told Mr. Bakir that Mr. Giammichele could just come up to him and kill him because then he would not have to pay him back. Mr. Bakir responded by telling her not to worry and showed her the contract on his phone. He said, “Don’t worry; I have a contract.”

[ 23 ] That is from Roza Bakir’s statement to the police, November 23 rd , 2018, at page 26 through 27.

Rawand Bakir:

[ 24 ] I will refer to him as Rawand because we have a number of Bakir’s involved. Rawand Bakir is close to his brother, Mark Bakir, the deceased. In his November statement, Rawand indicates he has discussed the debt owing with the accused because Rawand was the cool one. See the November 23 rd statement at pages 17 through 19.

[ 25 ] It appears that Rawand was aware of the loan from its inception and spoke repeatedly to both the accused and the deceased about problems of payment, from November 20 th right up to November 22 nd , 2018. See, for example, pages 26 through 29 and pages 34 through 35, 45, 50, and 51 of the November 23 rd statement, and pages 6 through 9, 11 through 13 to 15, and 48 of the December 8 th statement.

[ 26 ] The accused indicates he preferred to deal with Rawand. See pages 30 and 31 of the November statement.

[ 27 ] The Crown, in its submissions, indicates that on November 20 th , 2018, text messages involving Rawand and the problems regarding his brother’s contract appear for the first time. Rawand basically becomes a mediator between the accused and Mr. Bakir from November 20 th to November 22 nd , 2018, and is involved in texting and conversing with both the accused and his brother, Mark. The conversations between Rawand and Mark provide context for the text and fill in gaps, in evidence when the texts more or less dried up between the accused and Mark in or around November 19, 2018.

[ 28 ] There is one text after that or one was sent by the accused on November 21, inviting Mark to the accused’s shop in order to receive $5,000, and the accused wanted Mark’s brother there to oversee it.

Kamila Baranska:

[ 29 ] Kamila Baranska is the deceased’s girlfriend. On November 22, she was in the deceased car, and she overheard Mark arguing with the accused over the phone. The accused said he did not have the money. Mark was upset and told the accused he would get his brother to phone him. See pages 4 and 8 of her November 23 statement.

[ 30 ] She also overheard, Mark, the deceased, and the accused argue over the fact that the accused owed the deceased money. She overheard that two weeks prior to November 23 rd when the accused was in Italy. See page 10 of her November 23 rd statement.

Ian Pickering

[ 31 ] I will refer to him as Ian. Ian is a close friend of the deceased and talked and or saw the deceased regularly. See page 10 of his November 23 statement. Ian was aware that the accused owed Mark money. Mark said it was $80,000, but Ian does not know if that included interest or not. See pages 11 through 13 of the Ian Pickering statement. Ian indicates, apparently, they had a contract and thinks he told his family there was a written contract. Bu the deceased is not the type to have a contract. He is a handshake-type of guy. See pages 13 through 14 of Ian Pickering’s November 23 rd statement.

[ 32 ] Ian was never present face-to-face with Mark and the accused when they were having arguments. However, he was present when Mark was having arguments with the accused over the phone. See pages 18 through 19 of Ian Pickering’s statement. I note that Ian’s statement is peppered with phrases such as, “we believe,” “I believe,” “Apparently,” and “I think,”. See pages 4, 5, 13 and 24 of his statement.

Ryan Ramjeawan:

[ 33 ] I will refer to him as Ryan. Ryan was good friends with the deceased and has known him for seven years. Ryan indicates that in his November 23 rd statement, that Ian Pickering was in his office and they called Mark on the phone. He thinks it was Tuesday, the day before November 22 nd . And Mark indicated that this guy owes him money. And Mark was mad because he had bills to take care of including his mortgage. See page 6 of Ryan’s statement of November 23 rd .

[ 34 ] When they got off the phone, Ian told Ryan how this Gino, uncle, is a crazy guy, a cokehead-type kind of guy. And Mark was supposed to meet these guys today. And Mark’s family was involved now because apparently he gave Gino, like, $80,000 to invest for him. See pages 6 through 7, 18 through 19 of Ryan’s November 23 rd statement.

[ 35 ] Mark had told Ryan there was a meeting tonight with Gino. Tonight was the deadline for the money. They were going to meet and he did not go into detail. Ryan did not know how much money he was going to get back. See Ryan’s statement at page 19.

[ 36 ] Mark told Ryan that he gave Gino $80,000 to invest. See pages 16 through 17, 18 through to 19 of Ryan’s statement. When Ryan asked what the investment was for, Mark said, “Don’t worry.” See Ryan’s statement at pages 16 through 18.

[ 37 ] Defence counsel indicates that phone records from Ryan indicate there was no phone call made on the Tuesday, but there was a ten-minute call made on the Wednesday.

Frank Kalanyos (Frank):

[ 38 ] Frank went to the same gym with Mark and the accused, where the accused met Mark and became close, good friends. Frank is close friends with Mark. Frank indicates that Mark got his settlement money. “I guess he lent money to Gino.” See page 5 of Frank’s statement. Frank indicates also at page 5, “And the only thing I know is that I know he lent him a lot of money, apparently, to help start up a business or something. And that’s pretty much it. And I know Gino wasn’t paying it back and he told me that he wasn’t paying it back and that’s pretty much all I know.”

[ 39 ] Frank indicates regarding how much money was lent, “I think it was eighty grand. That’s what I heard from Mark.” See page 8. Mark told Frank that Gino was in a tight situation. He had a good opportunity to open a business or something. See page 8 of Frank’s statement. Frank did not know what kind of business Gino was opening; see page 8 of his statement.

The law: Hearsay statements generally; the principled approach

[ 40 ] In the leading case of R v. Khelawon , 2006 SCC 57, 2006 2 S.C.R. 787, Supreme Court of Canada, indicates as follows at paragraphs 4, 42, 49, 60, 62, 90, 99 and 100:

Paragraph 4

As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.

Paragraph 42

It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. Hence, a number of common law exceptions were gradually created. A rigid application od these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability…[I am not going to refer to the cites and quotes.]…This Court first accepted this approach in Khan and later recognized its primacy in Starr , was recently summarized in R v. Mapara …:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

Paragraph 49

The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement maty be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its..probative value is outweighed by its prejudicial effect.

Paragraph 60

The Court in Starr also reaffirmed the continuing relevance of the traditional exceptions to the hearsay rule. More recently, this Court in Mapara reiterated the continued application of the traditional exceptions in setting out the governing analytical framework, as noted in para. 42 above. Therefore, if the trial judge determines that the evidence falls withing one of the traditional common law exceptions, this finding is conclusive and the evidence is ruled admissible, unless, in a rare case, the exception itself is challenged ad described in both those decisions.

Paragraph 62

One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. Wigmore explained it this way:

There are many situations in which it can be easily seen that such a required test (i.e., cross-examination) would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of provability, it would be pedantic to insist on a test whose chief object is already secured….

Paragraph 90

After determining that the necessity criterion was met, Lamer C.J. and Iacobucci J….addressed reliability. In the circumstances of this case, it could hardly be said that the complainant’s testimony was inherently trustworthy. She had given contradictory versions, all under oath. Rather, the Court looked for the presence of a satisfactory basis for evaluating the truth of the statement, starting as follows, at para. 75:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

Paragraph 99. The court refers to Kennedy’s judgment in Ivanhoe v. Wright , the US Supreme Court and judgment.

Kennedy J. also strongly disagreed with the majority’s view that only circumstances surrounding the making of the statement should be considered:

The [majority] does not offer any justification for barring the consideration of corroborating evidence, other than the suggestion that corroborating evidence does not bolster the “inherent trustworthiness” of the statements. But for purposes of determining the reliability of the statement, I can discern no difference between the factors that the Court believes indicate “inherent trustworthiness” and those, like corroborating evidence, that apparently do not…[Kennedy continues.]…The short of the matter is that both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable. If the court means to suggest that the circumstances surrounding the making of a statement are the best indicators of reliability, I doubt this is so in every instance. And, id it were true in a particular case, that does not warrant ignoring other indicators of reliability such as corroborating evidence, absent some other reason for excluding it. If anything, I should think that corroborating evidence in the form of testimony or physical evidence, apart from the narrow circumstances in which the statement was made, would be a preferred means of determining a statement’s reliability for purposes of the Confrontation Clause, for the simple reason that, unlike other indicators of trustworthiness, corroborating evidence can be addressed by the trial court in an objective and critical way…

The Supreme Court of Canada concludes at paragraph 100. I will just refer to the first sentence.

In my view, the opinion of Kennedy J. better reflects the Canadian experience on this question.

So moving now to the traditional exception, ante-mortem hearsay statements.

[ 41 ] In R v. Griffin , 2009 SCC 28 , the court held that ante-mortem hearsay statements are admissible under the traditional exception to the hearsay rule where the accused state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion. The deceased state of ming may be relevant to motive and ultimately the issue of identification. The court held as follows at paragraph 59 through 66:

Paragraph 59

In the case before us, however, the statement at issue was not admitted to prove the state of mind or intentions of a third party. No one questioned at trial, or in the court below, that the inference that Poirier feared Griffin could be drawn from the former’s statement to Williams. The statement was tendered and admitted for the truth of the fact that Poirier himself feared Griffin, a purpose that does not exceed the scope of the “state of mind” exception to the hearsay rule. As this Court stated in Starr , declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion. In the present case, there was no argument that the statement was made under circumstances of suspicion. Poirier’s fear of Griffin was a relevant fact – it was relevant to motive and, in turn to the issue of identification. Although a declarant’s hearsay statement cannot constitute proof of a third party’s state of mind, this does not mean that the declarant’s state of mind can have no bearing on other issues in the case. I will explain.

Paragraph 60

As stated earlier, the sole issue at trial was the identity of Poirier’s killer. Although Poirier’s state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased’s mental state may be relevant to the question of an accused’s motive. As Doherty J. explained in the oft-approved judgment in P. (R.), at p. 339:

… the deceased’s mental state may bear no direct relevance to the ultimate issue of identification but it will none the less be relevant to that issue if it is relevant to another fact (e.g., motive) which is directly relevant to the ultimate issue of identification.

In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial, is equally well established at law….

Paragraph 61

The state of the relationship between a deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive. For example, in R v. Assoun …identity was the crucial issue at trial. The trial judge admitted statements made by the deceased expressing fear of the accused on the basis that such statements were probative of the issues of “malice, motive, [and] state of mind”…which in turn were relevant to identity. The Nova Scotia Court of Appeal agreed [stating]:

[The deceased’s] state of mind and [the accused’s] state of mind are probative of the relationship between them at the time of [the deceased’s] murder. Therefore, they are probative of motive, which is relevant to identity.

Paragraph 62

The conclusion in Assoun echoes that of the Ontario Court of Appeal in R v. Foreman ,…where the court considered the relationship between a deceased’s state of mind and the issue of motive. Upholding the trial judge’s admission of statements made by the deceased shortly before her death in which she expressed fear of the accused, the court stated as follows:…

Motive refers to an accused’s state of mind… . [T]he deceased’s state of mind was one link in a chain of reasoning which could lead to a finding that the [accused] has a motive to kill [the deceased]. In that way, [the] evidence of [the deceased’s] state of mind had an indirect connection to the appellant’s state of mind.

Paragraph 63

The connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship between the two; if a deceased and an accused are unknown to one another, this course of logic can find no application. That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim:…[And they refer to some cases. Moving on]…This is not to say that a deceased’s state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased’s state of mind is one piece of evidence that may be relevant to the issue of motive.

Paragraph 64

In the instant appeal, Poirier’s fearful state of mind is probative of the nature of the relationship between he and Griffin in the time period immediately preceding the murder. The two were known to one another prior to the murder and had engaged in drug-related transactions resulting in a sizeable debt owed to Griffin by Poirier. Poirier sensed that Griffin’s animus towards him was increasing throughout January 2003 and it is apparent that he acted accordingly: Poirier refused to meet with Griffin, he went into hiding at the Clarion Hotel, and, by way of the statement now at issue before this Court, he told his girlfriend that he believed that Griffin intended him harm. All of these facts make it more likely that Griffin had the motive ascribed to him by the Crown than would otherwise be the case. Indeed, quite apart from this statement, the evidence that Griffin had a motive to harm Poirier was overwhelming.

Paragraph 65

In addition to its broad relevance as one piece of a large puzzle of circumstantial evidence going to proof of motive, Poirier’s state of mind took on an elevated importance in light of the defence argument advanced in this case. In admitting the impugned statement, the trial judge correctly observed that Poirier’s particularized fear of Griffin was evidence that tended to rebut the defence proposition that someone other than Griffin might have had a motive to kill Poirier in January 2003. While Poirier’s fear of Griffin was not conclusive on this issue, the evidence was highly relevant to the question of identity. That Poirier was driven into hiding and was fearful for his safety in the weeks preceding his death because of his fear of Griffin, and not because of his fear of someone else as suggested by the defence, could be properly considered as one piece of circumstantial evidence refuting the defence theory that someone other than Griffin may have killed Poirier.

Paragraph 66

Thus, the trial judge correctly appreciated that the deceased’s mental state was highly probative of the issue of motive and that it took on additional probative value in that it tended to rebut the specific defence proposition that someone other than Griffin may have had a motive to kill Poirier in January 2003. Properly acknowledging the need for an appropriate limiting instruction, the trial judge found that the statement’s probative value outweighed its possible prejudicial effect and admitted the statement into evidence….

[ 42 ] R v. Candir , 2009 ONCA 915, [2009] O.J. No. 5485, is a decision of the Ontario Court of Appeal. Justice Watt held as follows in a number of paragraphs:

Paragraph 51. And this is regarding Relationship Evidence in Prosecutions of Domestic Homicide.

In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material: R v. Moo ,…at para. 98. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person’s animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing. [And a number of cases are cited.]….

Paragraph 52

Motive or animus has to do with an accused’s state of mind, not that of the deceased. Yet evidence of the deceased’s state of mind may constitute a link in a chain of reasoning thar could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased….

Paragraph 59. This is regarding the Discretionary Exclusion of Otherwise Admissible Evidence.

A party who meets the requirements of a listed or the principled exception to the hearsay rule removes its exclusionary features as a barrier to admissibility. But ascension over one barrier to admissibility does not preordain reception. A trial judge has a residual discretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit). The prejudicial effect of the evidence may overwhelm its probative value. Introduction of the evidence may involve a significant expenditure in time, not commensurate with the value of the evidence. The evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability:…[And a number of cases are cited.]….

Paragraph 60

The general exclusionary rule described in the preceding paragraph is sufficiently expansive to permit exclusion in order to prohibit or reduce the needless presentation of cumulative evidence. This forensic piling on of evidence by the acre unnecessarily lengthens trials, diffuses their focus, and diverts the attention of the trier of fact. Cumulative evidence, whether testimony, exhibits or both, often occupies a borderland around the periphery of the case, adding nothing to the contested issues, preferring instead to suffocate the trier of fact with the uncontroversial or marginal.

Paragraph 61

A general exclusionary discretion to prohibit or reduce the needless presentation of cumulative evidence sits comfortably with the cost benefit analysis of Mohan that balances time expended (the cost) against value received (the benefit). In some instances, appellate courts, including this court, appear to have recognized an exclusionary discretion to insulate the trial process against needless presentation of cumulative evidence….

Paragraph 65

…informal admissions do not erect any absolute bar to the introduction of evidence about their subject-matter. That said, a trial judge retains the discretion to exclude cumulative evidence on the basis of a cost benefit analysis, including to control the needless presentation of cumulative evidence:….

Paragraph 71

In this case, evidence of the deceased’s ante-mortem statements was offered to prove the deceased’s state of min about her relationship with the appellant was unsatisfactory to her, that she determined to end it, and that she did end it on a basis that to her was permanent. These facts make it more probable that the appellant had a motive to kill her than would be the case without that evidence.

Paragraph 72

Evidence that a person had a motive to do an act, for example to unlawfully kill another, is relevant to prove that the person with the motive did the act, and did so intentionally.

Paragraph 81

Several witnesses gave evidence as recipients of various statements made by the deceased about her desire to leave her marriage and fears of reprisal if she followed through with her plan. These expressions culminated in her abandonment of the marriage while the appellant was in Turkey. It was of no little importance to the case for the Crown to show the pervasive nature of her dissatisfaction with the marital relationship and the firmness of her resolve to end it on a permanent basis. That her state of mind persisted and was shared with several over many months went some way towards proof of what the Crown sought. These facts, in their turn, made it more probable that the appellant had the motive assigned to him than would have been the case without the evidence of the deceased’s state of mind.

Paragraph 85

In the circumstances of this case, I am not prepared to say that the trial judge should have excluded the contested hearsay statements on the ground of needless presentation of cumulative evidence. That the same purpose could have been achieved by the introduction of fewer statement does not mean that the number adduced called for the invocation of the exclusionary discretion. The line between enough and too much is not always easy to fathom, even with hindsight. But it was not crossed here.

[ 43 ] In R v. Nurse , 2019 ONCA 260 , Trotter J., held as follows at a variety of paragraphs:

Paragraph 59

Since adopting the principled approach to hearsay, the Supreme Court has confirmed the continuing relevance of the traditional exceptions to the hearsay rule: see [a variety of cases.]…In Khelawon , at para. 60 , Charron J. held that, if a trial judge determines that evidence falls within one of the common law exceptions, this finding is “conclusive”, and the evidence is admissible.

Paragraph 60

In Mapara , the court recognized that this conclusion may be displaced when the exception itself is challenged:…[and then refers to a variety of cases.]…That is not the case here; neither exception is under attack on a categorical basis.

Paragraph 61

The Supreme Court has also recognized that, in “rare cases”, evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case. In Starr , Iacobucci J. wrote, at para. 214: “However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional…exception will bear the burden of showing that the evidence should nevertheless be inadmissible.”….

Paragraph 64

As noted above, in “rare cases” it is possible that despite falling with a traditional exception, the evidence may not meet the requirements of necessity and reliability. Indeed, Iacobucci J. recognized, at para. 155 of Starr , that “in the event of a conflict between the two, it is the principled approach that must prevail”. However, the party challenging the presumptive admissibility of the evidence bears the burden of establishing a “rare case.”

Paragraph 70

In Starr , Iacobucci J. referred to dying declarations as an example of a hearsay exception that does not negate hearsay dangers, but “provides circumstantial guarantees of reliability”:…[He then refers to a number of cases.]…in Bradshaw , Karakatsanis J. said, at para. 22: “These traditional exceptions are based on admitting types of hearsay statements that were considered necessary and reliable, such as dying declarations”. Pursuing a similar theme in R v. Youvarajah , Karakatsanis J. said, at para. 20: “Exceptions to the hearsay rule developed for statements carrying certain guarantees of inherent trustworthiness, often because of the circumstances in which they were made (for example, dying declarations and declarations that are adverse in interest).”

[ 44 ] In R v. Carroll , [2014] ONCA 2, Justice Watt held as follows:

Paragraph 104

A deceased’s mental state may b e relevant to an accused’s motive to commit an offence:…[referring to]… Griffin …[and]… Moo ]…In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing 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:…Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus:…

Paragraph 105

Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule as an impediment to admissibility. But it does not follow that the hearsay statements will be admitted. Trial fairness factors influence the ultimate decision on admissibility. A trial judge has a discretion to exclude otherwise admissible hearsay evidence through the application of a cost-benefit analysis:….

Paragraph 109

Second, as noted above, it is well established that evidence of a deceased’s state of mind, as disclosed by his or her utterances prior to death, may be relevant to an accused’s motive or animus towards the deceased:…And in turn, evidence of motive or animus is relevant to the identity of the deceased’s killer and the state of mind with which the deceased was killed:…In this case, evidence of the appellant’s motive or animus was also relevant to rebut defence suggestions that someone else, a third party, killed the deceased or that Tony Comeau, not Carolyn Carroll, was the killer’s primary target.

Principled Approach

[ 45 ] Regarding the principled approach, the Supreme Court of Canada, in the now leading case of R v. Bradshaw , 2017 SCC 35, [2017] S.C.J. No. 35, outlines the road map when considering The Principled Exception to the Hearsay Rule, at a variety of paragraphs:

Paragraph 23

Eventually, a more flexible approach to hearsay developed through the jurisprudence. Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities….

Paragraph 24

By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process…[I am not going to refer to the cases cited.]…In criminal proceedings, the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial…Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value….

Threshold reliability

Paragraph 26

To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”…These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact….In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them…The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

Paragraph 27

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)…

Paragraph 30

A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy…To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement….

Paragraph 31

While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty”…Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”…The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”…; “under such circumstances that even a sceptical caution would look upon it as trustworthy”…; when the statement is so reliable that it is “unlikely to change under cross-examination”…; when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”…; [or] when the only likely explanation is that the statement is true…[And a variety of cases are cited.]

Paragraph 44

In my view, the rationale for the rule against hearsay and the jurisprudence of this Court make clear that not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. A trial judge can only rely on corroborative evidence to establish threshold reliability id 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. If the hearsay dangers relate to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

Paragraph 50

To be relied on for the purpose of rejecting alternative hypotheses for the statement, corroborative evidence must itself be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry…Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence….

Paragraph 51

The jurisprudence of this Court provides two examples of corroborative evidence that could be relied on to establish threshold reliability.

Paragraph 52

In R v. Khan …this Court held that a hearsay statement from a child regarding a sexual assault was admissible, notably because it was corroborated by a semen stain on the child’s clothes. The child alleged that she had been sexually assaulted at the doctor’s office. She was only alone in the office for a brief period and “did not come into contact with any other male person during [that] period”. Given the semen stain and the circumstances of the case, the only likely hypothesis was that the child had not lied about or misperceived the assault. The semen stain correctly [sic] responded to the hearsay dangers.

Paragraph 53

Khan can be contrasted with R.(D). , where this Court held that a child’s hearsay regarding a sexual assault by her father was inadmissible, although there was evidence that supported her statement: bloodstained underpants. This corroborative evidence was consistent with more than one hypothesis, both the possibility that her brother had assaulted her and the possibility that her father had assaulted her, and thus was of no assistance in assessing threshold reliability….

Paragraph 54

In U. (F.J.) , a hearsay statement was admissible in part because it was corroborated by a strikingly similar statement. The strikingly similar statement was capable of supporting the threshold reliability of the hearsay statement because the Court was able to rule out the possibilities that the similarity was purely coincidental, that the second declarant had heard the first statement and modeled her statement off of it, and that either statement was the result of collusion or outside influence. Importantly, Lamer C.J. was concerned with rejecting not the hypothesis that the second statement was in fact based on the first, but the possibility that it could have been based on the first. He concluded that the only likely explanation for the similarity between the two statement was the truthfulness of the hearsay declarant….

Paragraph 55

In contrast, the corroborative evidence in Khelawon , bruises and garbage bags filled with clothes, was not capable of bolstering the threshold reliability of a hearsay statement regarding an assault. Charron J. explained that the bruises on the complainant’s body could have been caused by a fall rather than an assault. And while the complainant had alleged that the accused had put his clothes in garbage bags, Charron J. reasoned that the complainant “could have filled those bags himself”… Given that the corroborative evidence was consistent with many hypotheses, it did not show that the only likely explanation was the declarant’s truthfulness about the assault.

Paragraph 56

Clarifying when corroborative evidence can be relied on to establish substantive reliability it not a departure from the functional approach to the admissibility of hearsay. There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established. In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability.

Paragraph 57

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:

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 vase.
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.

[ 46 ] In R v. Moo , 2009 ONCA 645 , Justice Watt dealt with the test of threshold and reliability of ante-mortem statements as follows in a variety of paragraphs:

Paragraph 98

In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased’s killer and the state of mind with which the killing was done:…[And a variety of cases are quoted.]

Paragraph 99

Evidence of extrinsic misconduct comes with baggage – moral prejudice (the potential stigma of “bad personhood”) and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged):….

Paragraph 100

Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial and final cautions hat educate jurors about the permitted and prohibited use of the evidence. This general rule does not apply, however, where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawful homicide:…[A variety of cases are cited.]

Paragraph 104

The deceased’s statements to the two ministers of the church she attended were made for the purpose of obtaining advice about how to resolve a family crisis. They, like the others, were spontaneous outpourings of the declarant, not answers given to leading questions or as a result of any improper influence by the recipient. The statements were not made during on in contemplation of any legal proceedings and were confined by the trial judge to discussions within a reasonable time before the deceased’s death. None were under oath or its equivalent nor recorded in whole or in part….

Paragraph 105

The evidence adduced is unrevealing of any motive on the deceased’s part to lie in her statements to others. In many respects, the appellant’s own statement to investigators contains much of what the deceased said to others.

Paragraph 106

The deceased’s ante-mortem statements to others were relevant and material. They tended to show the true nature of the relationship between the appellant and deceased, casting it in a different light than as described by the appellant. These statements reveal animus and motive on the part of the appellant, thus bearing on the issue of whether his unlawful killing of the deceased was murder or manslaughter.

Paragraph 107

An assessment and balancing of probative value and prejudicial effect was required to determine whether otherwise admissible hearsay should be excluded and otherwise inadmissible evidence of extrinsic misconduct…should be admitted. To some, this commingling of exclusionary rules may warrant two discrete inquiries because the onus may not fall on the same party in each. That said, there is no basis upon which to interfere with the trial judge’s conclusion that the balance fell in favour of admission.

Paragraph 108

While moral and reasoning prejudice is inherent in any evidence of extrinsic misconduct, its influence may vary significantly from one case to the next, depending, in part at least, on the nature and extent of the misconduct. Here, the extrinsic misconduct paled by comparison to the conduct charged. In some instances, it reflected more badly on others, for example, the deceased’s father than on the appellant. The sting of any prejudice was largely alleviated by the limiting instructions given by the trial judge forbidding propensity reasoning, instructions that were more favourable than those to which the appellant was entitled.

[ 47 ] In R v. Pasqualino , 2008 ONCA 554, [2008] O.J. No. 2737, the Ontario Court of Appeal dealt with the Threshold Admissibility of Ante-Mortem Hearsay Statements as follows:

Paragraph 34

The appellant challenges the trial judge’s voir dire decisions on the threshold admissibility of various ante-mortem statements made by the victim. As I have stated, it is my view that the trial judge’s decision survives review on a standard of correctness.

Paragraph 35

The ante-mortem statements the trial judge permitted the jury to consider consisted of statements [that] the victim made to her relatives and a close friend. The content of the statements concerned the victim’s intent to leaver her husband and fear of the consequences; threats and abuse by the appellant against her; a threatening discussion with the appellant’s brother; and the victim’s discovery of a gun in the appellant’s car.

Paragraph 42

To the extent that the appellant’s argument implies a general rule that ante-mortem hearsay statements uttered during the context of marital difficulties or imminent divorce proceedings are presumptively unreliable under the principled exception, I would decline the invitation to set down such a broad rule of presumptive exclusion. Moreover, the Supreme Court had recently clarified that the existence of a motive to lie is “but one factor to consider in the determining of threshold reliability”: [see] R v. Blackman ….

Paragraph 43

The trial judge examined the available corroborating evidence and the circumstances in which the statements were made, and found that the statements at issue were made in the context of everyday intimate conversations between close relatives and friends where there was no motive to fabricate. This court has signalled that the context of a “special” relationship can constitute an indicator of reliability, see Czibulka at para. 47, and I see no error in the trial judge’s conclusion that the statements possessed sufficient hallmarks of threshold reliability.

[ 48 ] In the recent case of R v. Faria , 2022 ONCA 608 , that the Court of Appeal, held as follows:

At paragraph 23

The appellant argued that the trial judge erred in admitting evidence of the eight or nine witnesses who testified as to what Ms. Doyle had told them – and what they themselves had observed about Ms. Doyle’s relationship with the appellant, the appellant’s possessiveness, and Ms. Doyle’s intention to end the relationship decisively after New Year’s. the appellant argued that this evidence was needlessly cumulative, giving rise to a risk of reasoning prejudice and moral prejudice. In particular, the appellant argues that he was prejudiced by pointless repetition of witnesses of the same point: that Ms. Doyle was fearful of the appellant. The evidence was unnecessary not simply because it was needlessly repetitive, but because Ms. Doyle’s frame of mind was evident from her text messages; the jury was given 522 text messages sent over 127 days. Prejudice to the appellant could also have been minimized by providing the jury with excerpts of the evidence given by the witnesses at the preliminary hearing, rather than oral evidence at trial.

The court held at paragraph 26

The determination of whether the evidence was unnecessary and whether it carried an unacceptable risk of moral and reasoning prejudice were discretionary decisions, entitled to defence. It was for the trial judge to decide whether the evidence was needed or whether it was needlessly repetitive: [see] R v. Candir ….The trial judge provided ample reasons for allowing the witnesses to testify. He noted in his reasons on the motion that the proposed witnesses would be testifying about different statements made at different times, and that this evidence would help the jury understand the unfolding narrative of the deterioration of the relationship. Eliminating the witnesses would sanitize the evidence of the relationship. The victim was not available to testify, the context of the text messages and the inferences to be drawn from them was disputed by the defence, and so the text messages could not stand by themselves. The witnesses were essential to understanding the text messages.

[ 49 ] In R v. M.G.T. , 2017 ONCA 736 , Justice Watt in considering an out-of-court statement made to a brother held as follows:

Paragraph 133

As an out-of-court statement of a deceased declarant tendered through it recipient to establish the truth of what is expressly said or impliedly asserted, J.C’s proposed evidence of what K.C. told him about the incident and his testimony at trial us hearsay and presumptively inadmissible.

Paragraph 134

To overcome the hearsay objection, which remains pertinent even though the party tendering the proposed evidence is the defence, the appellant must be able to satisfy the requirements of a listed or the principles exception to defeat the rule of presumptive inadmissibility.

Paragraph 135

J.C.’s evidence cannot be admitted under any listed or category exception to the hearsay rule. Although some aspects of K.C.’s alleged recantation might attract the penal interest exception, on balance, the claim would fall foul of the vulnerability requirements.

Paragraph 136

The specific hearsay danger raised by K.C.’s alleged statement is the inability of the trier of fact to assess whether K.C. lied at trial about the sounds he heard coming from the bedroom. Hearsay can be admitted in evidence, by exception to the presumptive rule of exclusion, if it is both necessary and sufficiently reliable. Where necessity is established by the death of the declarant, the hearsay dangers can be overcome and threshold reliability established by showing that there are:

i. adequate substitutes for testing truth and accuracy (procedural reliability); or

ii. sufficient circumstantial or evidentiary guarantees that the statement id inherently trustworthy (substantive reliability).

Paragraph 139

Turning to substantive reliability, a hearsay statement may also be admissible if the circumstances in which it was made and any evidence that corroborates or conflicts with it establish that the statement it inherently trustworthy. The standard for substantive reliability is high, captured in language like “made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”, or so reliable that it is “unlikely to change under cross-examination”:….

Paragraph 140

The circumstances in which the statement proposed for admission here is said to have been made simply cannot satisfy the requirements of substantive reliability. The report by the recipient sheds little light on the context in which the statement was made, apart from the fact that both the declarant and the recipient were drinking and the declarant may have taken drugs earlier. By his own admission in cross-examination, the recipient had a poor recollection of what was said. We cannot be sure we have the complete statement of the declarant.

[ 50 ] In R v. Starr , 2000 SCC 40, [2000] S.C.J. No. 40, the Supreme Court of Canada indicated as follows at paragraphs 172 and 173:

Paragraph 172

Second, there are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant. As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant’s assertion. When the statement is tendered to prove the intentions of a third party, this danger is multiplied. If a declarant makes a statement about the intentions of a third party, there are three possible bases for this statement: first, it could be based on a prior conversation with the accused; second, it could be based on a prior conversation with a fourth party, who indicated the third party’s intentions to the declarant. Under the first scenario, the statement is double hearsay. Since each level of double hearsay must fall within an exception, or be admissible under the principled approach, the mere fact that the declarant is making a statement of present intention is insufficient to render it admissible. The second level of hearsay must also be admissible.

Paragraph 173

The other two scenarios also clearly require exclusion. If the statement about joint acts is based on a conversation with a fourth party, then the statement is triple hearsay, or worse. If, on the other hand, it is based on pure speculation, then it clearly is unreliable and does not fit within the rationale underlying the present intentions exception.

The trial judge’s residual discretion to exclude evidence:

[ 51 ] Charron, J. in R v. Blackman , 2008 SCC 37 , held as follows at a variety of paragraphs:

Paragraph 42

There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission. It is important to keep in mind, however, that motive is but one factor to consider in the determining of…threshold reliability, albeit one which may be significant depending on the circumstances. The focus of the admissibility inquiry in all cases must be, not on the presence or absence of motive, but on the particular dangers arising from the hearsay nature of the evidence. In Czibulka , the question of motive, in the circumstances of that case, was a very significant factor. If the deceased had a motive to lie about the accused abusing her, the contents of her letter could not be relied on for their truth. In other cases, motive may not feature so prominently.

Paragraph 47. The Weaknesses in Ms. Freckleton’s Evidence:

One of the principal submissions advanced by Mr. Blackman in arguing against the admissibility of the statements at trial rested on the difficulties with Ms. Freckleton’s evidence…There was also evidence that Ms. Freckleton had received information from others about the stabbing incident. The trial judge held that these factors had “nothing to do with the admission through he of the deceased’s allegation [sic] declarations” because she could be cross-examined on the defects in her evidence. The majority of the Court of Appeal was of the view that “[t]his holding is unimpeachable”…Cronk J.A. in [sic] R v. Humaid …in support of the proposition that the quality of the mother’s evidence was not relevant to threshold admissibility [sic]. Simmons …was of the view that the trial judge placed too much emphasis on the fact that Ms. Freckleton was available for cross-examination…

Paragraph 50

However, the second reason given by Doherty J.A. for finding that issues concerning the recipient’s credibility did not go to the question of threshold reliability is based, not on an arbitrary categorization of factors, but on principle. The fact that the recipient is available to be cross-examined does address “the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them.” Therefore, I conclude that the trial judge was correct in finding that the difficulties with Ms. Freckleton’s evidence were matters properly left to the ultimate…trier of fact, as the Court of Appeal did in Humaid , because Ms. Freckleton was available to be cross-examined at trial. The triers of fact were therefore in a position to fully assess the truthfulness and accuracy of her testimony.

The court then goes on to refer to the one caveat in Humaid . And it indicates at Paragraph 51,

…Doherty J.A. added an important caveat to the principle in Humaid , with which I agree. He stated as follows:

There is one caveat to what I have said. A…judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence:…There may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable of the evidence based on the exercise of his or her residual discretion. If the evidence was tendered by the defence, the discretion could [only] be exercised…where the potential prejudice substantially outweighed the potential probative value to the defence of the out-of-court statement….

[ 52 ] R v. Humaid , (which was referred to in the previous case), [2006] 210 O.A.C. 68. The Court of Appeal held as follows:

Paragraph 47

The trial judge undertook the necessity and reliability inquires dictated by the now well recognized principled approach to the admissibility of hearsay evidence….

Paragraph 49

In excluding Ms. Stevenson’s evidence of the statements made by Aysar, the trial judge described Ms. Stevenson’s evidence as “fraught with inconsistency and contradictions” and as “utterly untrustworthy”. The cross-examination of Ms. Stevenson supported the trial judge’s assessment, although it must be said that a more benign interpretation of some of the inconsistencies in her evidence could well have been taken.

Paragraph 50

The trial judge erred in law in holding that the credibility of Ms. Stevenson was relevant to a determination of whether Aysar’s statements were sufficiently reliable to justify their admission under the principled approach to the admissibility of hearsay evidence. Where, as here, the declarant of the out-of-court statement is not available for cross-examination at trial, the inquiry into the threshold reliability of the out-of-court statement looks for circumstantial guarantees of trustworthiness arising out of the circumstances in which the out-of-court statement was made. These circumstantial guarantees of trustworthiness must be sufficiently supportive of the reliability of the out-of-court statement to permit its admission despite the absence of an opportunity to cross-examine the declarant. If the threshold reliability hurdle is cleared, the ultimate reliability of the out-of-court statement is….the trier of fact:…

[ 53 ] R v. Cote , the final case I will refer to and it is recorded at [2018] ONCA 870. The Court of Appeal indicated as follows, at paragraphs 29 and 30:

Paragraph 29

The appellant argued that, in the circumstances of this case, there were important indicia of unreliability that should nonetheless have prevented Starr from offering McQuhae’s statements. He focused specifically on Starr’s unreliability as a witness. The appellant urged that the evidence showed Starr to be biased against the appellant, and that he may have fabricated his testimony to prevent the appellant from relying on self-defence.

Paragraph 30

This argument is misdirected. The credibility and reliability of a hearsay witness such as Starr is not relevant to the threshold reliability inquiry because the threshold reliability inquiry is meant to serve as a substitute for cross-examination of the declarant, and because the hearsay witness is fully available to be cross-examined at trial:…The jury in this case was in a position to test fully the truthfulness and accuracy of Starr’s claim that the hearsay statements were made and what was said. The threshold reliability inquiry focuses on the reliability of the hearsay statements themselves based on the circumstances in which the statements were made. As indicated, in this case the indicia of reliability were sufficient.

[ 54 ] So having reviewed all those principles, I have now applied those to the facts in this case. First of all, dealing with the text messages.

[ 55 ] The Crown in its factum at paragraph 38, (pages B-1899 and B-1900), lists the messages and voice messages retrieved from cell phones as follows. And I will not read all of the details, but basically, the recipients of the statements are listed as:

Alessandro Giammichele, WhatsApp messages; Alessandro Giammichele, Facebook messages; Alessandro Giammichele and Roza Bakir, WhatsApp messages on November 11 th ; Alessandro Giammichele and Roza Bakir, WhatsApp messages left by Mark Bakir on November 11 th ; Roza Bakir, WhatsApp messages; Roza Bakir, iMessage on November 22, 2018; Ian Pickering, WhatsApp messages from November 17, 2018, to November 22, 2018; and Rawand Bakir, WhatsApp messages from November 10 th , 20218, to November 22, 2018.

The admissibility of the hearsay statements

[ 56 ] Hearsay statements adduced for the truth of their contents are presumptively inadmissible. Hearsay statements may be admissible generally, either through:

1. A traditional exception to the hearsay rule, or
2. Under a principled approach exception where the evidence is relevant to an issue and satisfies the criteria of reasonable necessity and threshold reliability.

[ 57 ] In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

[ 58 ] Even it the two criteria are met, a trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by prejudicial effect. See Khelawon at paragraphs 42 and 49 and Starr at paragraph 212 .

Dealing with the traditional exception: state of mind of the deceased

[ 59 ] Ante-mortem hearsay statements can be admissible when relevant to show the deceased’s state of mind or intention to follow a particular course of action. Ante-mortem statements may be admissible under this exception when the declarant’s statement of mind is made in a natural manner and not under circumstances of suspicion.

[ 60 ] With regard to the present case, I find that the deceased state of mind is relevant to three main issues:

1. Motive, affording evidence of the accused animus or intention to act against the victim;
2. Issue of identification; and
3. To rebut the third suspect, or other suspect defence.

See Griffin at paragraph 60 through 66, Candir at paragraphs 51, 52, 71, 72 , and Carroll at paragraphs 104 and 105.

[ 61 ] An examination of the text messages indicate the deceased’s texts were made in a natural manner and not under circumstances of suspicion. The statements are contemporaneous with the declarant’s belief, perception, emotion, or intention. See Starr at paragraphs 6, 168, 212 and Nurse at paragraph 7 .

[ 62 ] The texts listed by the Crown are admissible under the traditional exception state of mind of the deceased.

[ 63 ] Moving on to the principled approach. Under the principled exception, hearsay can exceptionally be admitted where the party tendering it on a balance of probabilities demonstrates:

1. Necessity; and
2. Threshold reliability.

See Bradshaw at paragraph 21 and Khelawon at paragraph 47 .

Necessity:

Mr. Bakir, Mark is deceased and unable to testify. Accordingly the criteria of necessity is met. See Khelawon at paragraph 25 and M.G.T. at paragraph 136 .

Threshold reliability:

The court in Bradshaw held:

Substantive reliability…”is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”…where “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” – See Bradshaw at para 31

Regarding corroborative evidence, the court in Bradshaw held:

A trial judge can only rely on corroborative evidence…if it shows, when considered as a whole and in the circumstances of the case,…the only likely explanation for the hearsay evidence is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. – See Bradshaw at para 44 .

[ 64 ] The circumstances under which the texts are made and the corroborative evidence in the material before me includes:

1. A contract between the accused and Mr. Bakir dated September 6 th , 2018, confirming a loan of $100,000 and interest payments of $17,500 due on October 6 th and November 7, 2018.
2. Bank records of Mark Bakir show a withdrawal of $100,000 on September 6 th , 2018, leaving a small amount of money in his main account.
3. No payments, deposits, approaching $17,500 ever appear in the bank records.
4. By the end of October and November of 2018, there was little money in Mr. Mark Bakir’s accounts. And by November 17 th , 2018, onwards, the main account showed negative amounts.
5. The text messages are written or recordings made spontaneously by the authors involved and therefore accurate.
6. The accused in his written text statements to Mr. Bakir acknowledged his debt and acknowledged not making payments as required by the contract, and further, repeatedly promised to make payments in the near future.

[ 65 ] These acknowledgements would generally be admissible as admissions by the accused. They are received as an exception to the hearsay rules as evidence of truth of their contents. See R v. S.G.T. 2010 SCC 20, [2010] 1 S.C.R. 688, R v. Evans , [1993] 3 S.C.R. 653, and Watt’s Manual of Criminal Evidence 2021 at pages 437, 438, and 684.

[ 66 ] The ongoing responses by Mark Bakir provide context when considering these admissions and are intended for the truth of their entire conversations between the accused and Mark Bakir. The material aspect of the text confirms the debt owed, the ongoing non-payments, and the frustration of the deceased by the ongoing promises to pay and the ongoing delays and non-payments. The hearsay danger is that Mark Bakir’s texts might be untruthful. However considering all the circumstances, including the corroboration details outlined above, I find that the only realistic explanation is the deceased loaned $100,000 to the accused and the accused did not pay as specified by the contract.

[ 67 ] The bank records indicate that by late November 2018, Mr. Bakir had no money in his main account, and this would increase Mark Bakir’s frustration and anger.

[ 68 ] The corroborative evidence confirms the declarant was both truthful and accurate in his text messages. Accordingly, the requirements outlined at paragraph 57 of Bradshaw are met.

[ 69 ] I find that the probative value of the text evidence exceeds any prejudicial effect. Accordingly, I find that the text evidence outlined above fits both within the:

1. Traditional exception; the state of mind of the deceased exception to the hearsay rule, and
2. The principled approach.

[ 70 ] Defence counsel concedes that the list of text messages are admissible as evidence in this trial.

Conversations with Mark Bakir

[ 71 ] I am going to start with Roza Bakir. Roza Bakir and Mark Bakir are sister and brother. Roza provided a statement to the police on November 23, 2018. The gist of Roza’s evidence is that she communicated daily with Mark Bakir. Mark had told her he invested $100,000 with Gino, his name for the accused. Mark booked a vacation and used Roza’s credit card in the amount of $1,378. Mark promised to pay by Halloween, that is 2018, but did not.

[ 72 ] Mark told Roza that he could not pay because Gino was not paying him. Roza indicates at page 8 of her statement that “So I got involved.” “Mark tagged me to a WhatsApp convo.” There are a series of texts between the accused, Mark, and Roza on November 11 th , 20218, where Mark is very angry and the accused indicates he will get “You, your sister, her money.” The accused tells Roza directly, “Roza, I’m getting you, your $1,320 today no matter what.” There had been $500 paid already that day. “And the rest is between Mark and me when I get back.” That was what the accused said.

[ 73 ] At pages B-2296 to B-2298 is a transcript of Mark’s remarks made on November 11 th , apparently, during this three-way conversation. It is clear from reviewing that transcript that Mark is wildly upset and is in a rage about not receiving his money and is only receiving $500 that day. Mark says he wants his money back. The accused promises to send the extra $1,320 owed by Mark to his sister in addition to that $500 right away that day. Roza indicates her Visa is overdue and further discusses payment problems with the accused regarding Marko not getting paid, i.e., the $17,500 per month that was to be paid.

[ 74 ] I note Mark’s main bank account record shows that from November 9 through 12, Mark had $2.73in his main bank account. In light of the corroboration evidence available as summarized earlier in the text discussions and the accused admissions of money owing to Roza, and Roza getting directly involved in the dispute between the accused and her brother, substantial reliability is established due to Mark’s statements being made in the circumstances, which substantially negates the possibility that the declarant was untruthful or mistaken. See Khelawon at paragraph 62, M.G.T. at paragraph 139, and Bradshaw at paragraphs 31 and 44 .

[ 75 ] The recording of Mark’s frustration and rants is an accurate and complete record of the material aspects of the statement. See Bradshaw at paragraph 44 , M.G.T. at paragraphs 139 and 140 .

[ 76 ] There were no leading questions put to the declarant and no motive for Mark to lie. See R v. Moo at paragraphs 104 and 105 .

[ 77 ] Mark’s statements were made to a close relative, Roza, who had no motive to lie herself. See Pasqualino at paragraphs 42 and 43 , and Blackman at paragraph 42 .

[ 78 ] Roza’s evidence regarding Mark’s statements and state of mind would help the jury understand the unfolding narrative of the deteriorating relationship between the accused and Mark. See Faria at paragraph 26 .

[ 79 ] I find that the probative value of this evidence greatly exceeds any prejudicial effect.

[ 80 ] The defence concedes that the statements made to Roza, or in her presence, by Mark, are admissible as a narrative with two exceptions. Firstly, in paragraphs 9, 26 and 28 of Roza’s statement, Roza indicates she did not know Mark to have problems with anyone else or to have enemies. I agree with the defence that this is opinion evidence. Since Mark’s ante-mortem statements are admissible, the Crown should be limited to ask if Mark made any complaints about anyone else.

[ 81 ] Similarly, at page 26, Roza indicates that Roza told Mark that the accused could kill him, and he does not have to pay his money back. Mark responded by showing her his contract and told her not to worry. Roza’s statement about the accused killing Mark is not based on any evidentiary foundation that I can find in the materials, and accordingly, is pure speculation. See Starr at paragraphs 172 and 173 , Khelawon at paragraph 42, and Bradshaw at paragraph 24 .

[ 82 ] Further, Roza’s speculation is highly prejudicial and has no probative value. I will exercise my residual jurisdiction to exclude Roza’s speculation as its probative value, if any, is far exceeded by its prejudicial effect. See Humaid at paragraph 57 and Blackman at paragraph 51 .

[ 83 ] The Crown will be limited to Roza indicating if she had concerns and then the Crown can introduce Mark’s response, “Not to worry, he had a contract.”

Rawand Bakir (Rawand):

[ 84 ] Rawand is Mark’s brother and they were close. Rawand made two statements to the police; November 23, 2018, and December 8, 2018. The gist of these two statements is that Mark told Rawand about the $100,000 contract, and that he was not getting paid, and he did not know what to do. The Crown indicates that Rawand had over a thousand pages of text messages. However, the first text regarding Mark’s dispute with the accused appears on November 20 th , 2018.

[ 85 ] Rawand got involved in the dispute between the accused and Mark. As previously discussed, Rawand basically becomes a mediator between the accused and Mark from November 20 th , 2018, to November 22, 2018, and is involved in texting and conversing with the accused and Mark about payments to Mark. The conversations between Rawand and Mark provide context from the texts and fills in the gaps in evidence when the texts started to dry up around November 19, 2018. The last text sent by the accused is on November 21, wherein the accused tells Mark to pick up $5,000 with his brother present.

[ 86 ] On November 22 nd , Rawand and Mark were supposed to pick up $5,000, but the accused cancelled and said it had to be tomorrow. Rawand told the accused that Mark was going to contact a lawyer. The accused hung up when Rawand told him this, and was very angry.

[ 87 ] In hid December statement, Rawand indicates at page 7 that the accused came to Rawand’s house on either the 19 th or 20 th , and indicated he owed Mark $100,000 and was going to try to get it for him. Rawand indicates in his December statement that on November 22 nd , just a couple of hours before the shooting, Gino, that’s the accused, was in his car and the accused phoned Rawand and Rawand told the accused that, “We’re going to see each other in court.” Rawand heard someone in the background tell the accused to tell Rawand to “Fuck off,” and shut off the phone. The accused then said, according to Rawand, “Yeah. Stop wasting my time. Fuck out of here.” The accused then hung up. See page 15 of Rawand’s December statement.

[ 88 ] These details indicate that, as the Crown submits, the conversations involving the accused, Rawand and Mark, especially those in the last few days leading to the murder, are highly relevant and fill in the gaps between and around the text messages, especially in and around November 20 to 22.

[ 89 ] In November 20 to 22, the accused’s bank account was in a negative balance, and legal action was now being discussed.

[ 90 ] Similar to the considerations discussed regarding Roza Bakir’s evidence i.e.,:

1. The corroboration as summarized in the text discussion;
2. The accused’s admissions and statements to Rawand; and
3. Rawand getting directly involved in the dispute between the accused and Mark right up to two hours before the shotting of Mark.

[ 91 ] Substantive reliability is established due to Mark’s statements being made in circumstances which substantially negate the possibility that Mark was either lying or mistaken. There was no motive for Mark to lie, and Mark’s statements are made to a close relative actively involved in trying to settle the dispute between the accused and Mark.

[ 92 ] Again, Rawand’s evidence of Mark’s statements and state of mind would help the jury to understand the further unfolding narrative of the deteriorating relationship between the accused and Mark right up to the day of the murder and, in fact, a couple of hours before the murder. The probative value of this evidence greatly exceeds any prejudicial effect.

[ 93 ] Again, the defence in her able submission, conceded that admissibility of this evidence with two exemptions. In his November statement, Rawand, at pages 9, 18 and 42, indicates Mark never had any problems with anyone. Again, this is opinion evidence. Given that Rawand is providing evidence in Mark’s ante-mortem statements, the Crown is limited to asking Rawand if Mark made any complaints about anyone else.

[ 94 ] At page 42 of the November statement, Rawand indicates that Mark told Rawand that the accused told Mark the accused has guns. The defence objects to the admissibility of this evidence as it is being double hearsay. Just because it is double hearsay does not make it inadmissible as indicated in R v. Starr , at paragraph 172 . And again, I quote, the court said,

Under the first scenario, the statement is double hearsay. Since each level of double hearsay must fall within an exception, or be admissible under the principled approach, the mere fact that the declarant is making a statement of present intention is insufficient to render it admissible. The second level of hearsay must also be admissible.

[ 95 ] Accordingly, both levels of hearsay must be admissible under the principled approach. Dealing with that, there’s corroboration that I can resort to.

[ 96 ] At page 160 of the text between the accused and Mark on November 7, 2018, Mark states, “You think your gun scared me brother?” the accused responds at page 161 of that brief, “I have never once threatened you with my gun.” Those texts have been ruled admissible. That admission by the accused provides substantive reliability about the truth of Mark’s statement that the accused told him he has guns. The fact that it is double hearsay, does not exclude that statement, given the corroboration that I have alluded to. And again, I rely on paragraph 172 of the Starr decision.

[ 97 ] Accordingly, I find the statement to Rawand by Mark, that the accused told Mark that the accused had guns to be admissible, subject to any possible revision after the prior discreditable conduct pre-trial motion.

Kamila Baranska:

[ 98 ] Kamila Baranska’s evidence consists mainly of:

1. November 22, 2018, when she overheard an argument between the accused and Mark over money owed to Mark. This is the day of the murder.
2. Two weeks before November 22, 2018, when she overheard another argument between the accused and Mark over money.

[ 99 ] The defence does not contest the admissibility of this evidence. I would find this evidence admissible both on the state of mind exception to the hearsay rule and on the principled approach. The probative value of this evidence exceeds any prejudicial effect.

Ian Pickering (Ian):

[ 100 ] The defence objects to most of his evidence. And I am almost done. Ian is a close friend of Mark. The gist of Ian’s evidence is:

1. Mark told him that Gino, that is the accused, owed him $80,000 and Mark was having trouble getting the money back.
2. Ian overheard Mark yelling at Gino getting his money back. That was over the phone. The defence does not object to that evidence.
3. Gino did not follow through on payments. Gino went to Italy and never paid Mark as he was supposed to. There was a blow-up, and Mark’s sister was involved. And Gino was supposed to pay yesterday, Thursday, which would be November 22 nd ad Ian’s statement is dated November 23 rd .
4. Mark talked to Ian and Ryan Ramjeawan about it, “Actually, just two days ago. And he was, like, pissed, pissed, pissed because he was getting the runaround.”
5. Mark was stressing because Thursday, yesterday, was his first mortgage payment, and he did not think he could make it.

[ 101 ] Regarding corroboration of Ian’s evidence, consideration can be given to the following evidence:

1. There was a contract signed on September 6 th , 2018, for $100,000 loan, not $80,000.
2. The text messages, especially the text of November 11 th involving Roza, Mark and the accused, record Mark being very upset with swearing and calling the accused names like, “Fucking idiot.” See pages B-2295 to B-2298.
3. Roza’s evidence clearly demonstrates she got involved in the dispute between the accused and Mark when Mark was unable to reimburse her for he Visa charge.
4. Ian gives a statement on November 23, 2018. That is the Friday. On November 23 rd , in his statement, Ryan says he called Mark on Tuesday. That is November 20 th . Ian says the call was two days before, but two days before Friday is Wednesday, November 21. Defence counsel indicates there were no calls by either Ian or Ryan made to Mark on that Tuesday, November 20 th , but there is a ten-minute call on the Wednesday by one of them; that is Ryan.
5. The text in evidence from Rawand indicates that the accused made many promises to pay but always provided excuses instead of payments. And further, Mark was upset and threatened to get a lawyer.
6. Mark’s main bank account was showing a negative balance by November 17 th , onwards. And obviously, there was insufficient funds available for a mortgage payment of any kind.

[ 102 ] Prima facie , there appears to be sufficient substantive reliability to allow the ante-mortem statements made to Ian to satisfy the principled approach.

[ 103 ] Putting it all together, I find that these ante-mortem statements made by Mark to Ian Pickering fit in the traditional exception state of mind of the declarant exception. Regarding the principled approach, the defence points at:

1. Ian, along with Ryan and Frank Kalanyos all know each other and all three put the loan amount of $80,000. And it appeared that all three went to the police station together, although Frank’s statement is a different date. This raises the possibility of collusion. Further, Ryan in his statement, places the call between Ian, Ryan, and Mark on Tuesday. That is November 20 th . Call records show that neither Ian nor Ryan made any calls to Mark on that Tuesday, but there is a ten-minute call on Wednesday. The credibility and reliability of Ian’s and Ryan’s, as well, narration of Mark’s out-of-court statements are not circumstances surrounding the making of those statements and cannot enhance or detract from the threshold reliability. See Humaid at paragraphs 50 and 51 , Blackman at paragraphs 47 through 50, and Cote at paragraphs 29 and 30.

[ 104 ] Given the corroboration referred to, I find that there is threshold reliability of Mark’s statements, and that there are circumstantial guarantees of trustworthiness arising out of the circumstances in which the out-of-court statements are made. See Humaid , paragraph 50 and Faria at paragraphs 23 to 26 .

[ 105 ] I find that the only likely explanation is that Mark’s statements, made to Ian, are Mark is telling the truth and is accurately telling what is going on with him and the accused. Any contradictions do not go to the threshold reliability but can be cross-examined before the jury.

Ryan Ramjeawan:

[ 106 ] The gist of Ryan’s testimony is:

1. Three weeks prior to Ryan’s statement on November 23 rd , Mark came to Ryan’s office and told him that Mark invested $80,000 with a guy, Gino, who would not give him his money back.
2. On Tuesday, November 20 th , Ian was at Ryan’s office, and Ian and Ryan called Mark. And Mark was upset because Gino owed him money and Mark needed to pay his mortgage, and tonight was the deadline for the money.

[ 107 ] In my opinion, the discussion relating to Ian Pickering applies equally to Ryan Ramjeawan, and I do not need to repeat it.

[ 108 ] In addition, regarding substantive reliability for both Ian and Ryan, the timing of the ante-mortem statements by Mark are reasonably close to his death and were not made as a result of any improper influence by Ian or Ryan. Also there was no motive for Mark to lie to his close friends. See Moo at paragraph 104 .

[ 109 ] Further, Ian and Ryan are close friends, who could be expected to be in Mark’s confidence. See Pasqualino at paragraphs 35 and 43 .

[ 110 ] Accordingly, I find that Ryan’s evidence is admissible both on the basis of the traditional exception, state of mind of the deceased and the principled approach to hearsay.

[ 111 ] Similar to the other witnesses, Ryan and Ian are not permitted to give opinion evidence regarding Mark having any problems with other people, but are permitted to indicate Mark made no complaints regarding other people.

Finally, Frank Kalanyos (Frank):

[ 112 ] Frank. The gist of Frank’s December 18 th , 2018, statement is:

1. “All I know is he met the Gino guy at the gym.” See page 4.
2. “The only thing I know is that he lent Gino a lot of money, apparently, to start a business. And Mark said he wasn’t paying it back, and that’s pretty much all I know.” See page 5.
3. “Mark said Gino said he was in a tight situation. He had a good opportunity to open a business or something, and Gino asked him if he could help out with this much money.” Page 8.
4. Frank does not know what kind of business was being discussed. Page 8.
5. The loan was for $80,000.
6. Mark got the money from a settlement. See pages 5, 7, 20, and 21. The loan is for $80,000 is at page 8.

[ 113 ] There is very little detail in this statement. From what I can see, there is no detail as to when or where those conversations took place. There is already overwhelming evidence, aside from Frank, that Mark received a settlement, loaned $100,000 to Gino, and never got paid. In my view, this evidence has very little probative value and adds nothing to the Crown’s case. Frank’s evidence is not evidence regarding different statements made at different times as in Faria . See paragraph 26.

[ 114 ] Given the limited probative value of Frank’s evidence, I find that his evidence adds nothing to the Crown’s case that is not already there in abundance already. The line between enough and too much is crossed by Frank’s evidence. Frank’s evidence is an example of the needless presentation of cumulative evidence that may be prejudicial. I exercise my discretion to exclude Frank’s evidence. See Candir at paragraphs 84 and 85 .

Conclusion

[ 115 ] The following ante-mortem statements are admissible pursuant to both the judicial exception state of mind of the deceased and the principled approach:

1. The messages, voice messages, text transcripts as listed at pages 11 through 12, that’s B-1899 and B-1900 of the Crown’s factum are admissible. See the attached excerpts at Appendix A. I will give counsel a copy of the endorsement.
2. Also, admissible are the conversations between Mark Bakir with Rawand Bakir, Roza Bakir, Kamila Baranska, Ian Pickering, and Ryan Ramjeawan with the exception of: a) Roza’s statement to Mark Bakir that Mr. Giammichele could just come up and kill him because then he does not have to pay the money back. And, b) The opinion evidence by all witnesses that they do not know Mark Bakir to have problems with anyone else, to have enemies. The witnesses are permitted only to indicate Mark Bakir did not make any complaints about anyone else.
3. The evidence of Frank Kalanyos is excluded from this trial.

Skarica J. Released: June 27, 2025

COURT FILE NO.: CR-24-915 DATE: 2025-06-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Applicant - and – ALESSANDRO GIAMMICHELE Respondent RULING ON ANTE-MORTEM STATEMENT SKARICA, J.

Released: June 27, 2025