Reasons for Ruling – Crown Application to Admit Hearsay Statements of the Deceased (Carl Delphin)

COURT FILE NO.: CR-23-00000107-0000
DATE: 2025-03-26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King – and – Gregory Anthony Beasley

Appearances:
J. Cavanagh and C. Moreno, for the Crown
R. MacDonald and E. Willschick, for the Respondent

Heard: March 18, 2025
Justice: Laurie Lacelle

Introduction and Positions of the Parties

[1] The accused, Gregory Beasley, is charged with two counts of first-degree murder. On October 16, 2021, he is alleged to have shot two men, Nico Soubliere and Carl Delphin, in a secluded parking lot in Kingston. The Crown’s theory is that this was an execution ordered from jail.

[2] The Crown brings an application to admit utterances made by the deceased, Carl Delphin, to his girlfriend Ruth Anne Villeneuve into the evidence at trial. It abandons its application to admit utterances made by the deceased Nico Soubliere to his girlfriend.

[3] The Crown proposes to lead evidence from Ms. Villeneuve that she and Mr. Delphin were supposed to have breakfast together at her home in Gatineau, Quebec, on the day of his murder. However, Mr. Delphin got a call from Nico Soubliere, asking him to come to Kingston as back up for a meeting Soubliere had “with a big black guy” that Soubliere was worried about. Mr. Delphin is reported to have said that Nico knew this man from jail.

[4] The defence consents to what it describes as the “non-inflammatory” portion of this evidence, which relates to Mr. Delphin’s intention to accompany Mr. Soubliere to Kingston. It objects to the admissibility of the remainder of the utterances attributed to Mr. Delphin because they are “double hearsay” and speak less of Mr. Delphin’s present intentions than those of Mr. Soubliere and the accused.

[5] As I understand the Crown’s position in oral argument, it seeks to adduce Mr. Delphin’s utterances to the effect that he was going to Kingston as “backup” because Mr. Soubliere was worried about the meeting as evidence of Mr. Delphin’s present intention, but it does not rely on the utterances for any inferences about Mr. Soubliere’s state of mind. It proposes that the jury could be cautioned about so using Mr. Delphin’s utterances, if they were admitted.

[6] During the trial, the parties were advised that I had determined that the hearsay statements objected to by the defence were inadmissible. These are my reasons for that ruling.

The Utterances at Issue and the Circumstances in Which They Were Made

[7] Ms. Villeneuve provided a statement to the police where she described her interactions with Mr. Delphin the morning of his murder. She explained that while they had known each other since they were 15, and had dated in the past, they had just rekindled their relationship in the past month.

[8] She described that Mr. Delphin was at her house in Gatineau that morning and they were planning on picking up breakfast and returning to her house to eat it. Then, Mr. Delphin got a call from Nico.

[9] Following the call, Mr. Delphin told her that they were going to have to hold off, and that he had to go to Kingston “real quick”. She said she did not have a good feeling about this and asked if he was sure he didn’t want to stay home with her. He said no, that he had to go.

[10] Ms. Villeneuve asked Mr. Delphin why he needed to go, and he told her that Nico needed him to be there. She asked why. He replied, “you know, just in case”. She asked, “in case what”? At this point in her police statement, Ms. Villeneuve said that Mr. Delphin “was surfacing everything, and I hate when he does that. And he doesn’t like to tell me details much”. Then he said “oh, you know, like there might be like some sketchy people”. When she asked who, he said “well, I don’t know”. Ms. Villeneuve continued to press Mr. Delphin, and he said he thought it was a friend of Nico’s that he used to know from prison.

[11] Mr. Delphin reiterated that Nico wanted to go see this friend, and Ms. Villeneuve asked, “but for what?” In response, she said Mr. Delphin “was just like, you know, he just – leaving it more in the air, and, you know, like he needs to go see him … and he doesn’t know if he can completely trust him”. She then said, “what that implies … I don’t know … I didn’t get much out of him”. She reported that Mr. Delphin also said “he just wants me there just in case”.

[12] Ms. Villeneuve was asked about what Mr. Delphin said about the person Nico was meeting. She said: “He didn’t say anything, he – he just said … big black guy. I don’t – I don’t know, I think he – I can’t remember. And you know what, I could be getting it confused.” She said: “I guess Nico wanted to see his friend. That’s what he told me … at the same time because he hasn’t seen him in a while, he doesn’t know if he could trust him, so it’s just better if he has somebody else there for him”.

[13] Later, Ms. Villeneuve said this about Mr. Delphin: “And the thing with him is like he – it’s like there’s so much that I didn’t know, and he only tells me bits and pieces.”

[14] Ms. Villeneuve also described how Mr. Delphin had told her about how he had been kidnapped the summer before, and how there were some people after him and who wanted to kill him, though he never said who.

[15] As for Mr. Delphin’s lifestyle, she said she had only the week before learned that he was selling fentanyl. She said when he told her “this stuff that he’s doing”, she “didn’t realize how deep he was in it”. While she knew he was selling weed, “finding out the fentanyl thing was like a shock” to her. She was aware that he was using drugs, including weed and Percocets “a lot of the time”.

[16] Mr. Delphin had spoken to Ms. Villeneuve about carrying a gun. She thought one of his friends had given it to him for his protection after the kidnapping. At one point she told him that “if you live by the sword, you die by the sword”, and asked him to promise her he would not use the gun to hurt anybody. She said he replied “okay, baby. He was brushing me off.”

The Legal Principles

The Admissibility of Hearsay

[17] Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible. This is because allowing a trier of fact to consider hearsay may compromise trial fairness and the truth-seeking process. As noted by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35 at para. 20, hearsay “may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity.” Generally, a hearsay statement is not taken under oath, the trier-of-fact cannot observe the declarant’s demeanor as they make the statement, and the hearsay statement cannot be tested through cross-examination.

[18] However, as re-iterated in Bradshaw at para. 22, “some hearsay evidence ‘presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding’” [emphasis in original]. Accordingly, exceptions to the hearsay rule have developed over time.

[19] Under our law, hearsay may be admitted under one of the traditional exceptions to the hearsay rule at common law, or under the principled exception to the rule, which has been developed by the Supreme Court of Canada in its jurisprudence.

The State of Mind Exception to the Hearsay Rule

[20] The state of mind exception to the hearsay rule is one of the traditional exceptions at common law. It refers to circumstances when “the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”: R. v. Starr, 2000 SCC 40 at para. 63. Since Starr, the party seeking to introduce the statement must show that the statement is of “a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion”: Starr, at para. 168; R. v. Cote, 2018 ONCA 870 at para. 22; R. v. Griffin, 2009 SCC 28.

[21] The declarant’s state of mind may be inferred from a statement. For instance, in Griffin, the Supreme Court accepted that the statement “[i]f anything happens to me it’s your cousin’s family” permitted the inference that the declarant feared the accused. The statement was admissible for proof of the fact that the declarant feared the accused under the state of mind exception to the hearsay rule.

[22] On the other hand, as noted in Starr, statements admitted under this rule do not permit inferences respecting the state of mind of persons other than the declarant, or that another person acted in accordance with the stated intention, unless a hearsay exception can be established for each level of hearsay: Starr at paras. 169-174, cited in R. v. Buecken, 2024 ABKB 726 at para. 42.

Circumstances of Suspicion

[23] As indicated above, statements may only be admitted under the state of mind exception to the hearsay rule where they are made in a natural manner and not under “circumstances of suspicion”. The meaning of “circumstances of suspicion” has not received great attention in the jurisprudence since this criterion was confirmed to be part of the test in Starr. While the court revisited the exception in Griffin, there was no argument on the facts of that case that the statement was made under circumstances of suspicion.

[24] In R. v. Brooks, 2015 ONSC 7350, the court held at para. 25 that “[s]uspicious circumstances are circumstances that call into question the reliability of the out-of-court utterance or conduct”.

[25] The case law provides some examples of “circumstances of suspicion”. In Starr, the court held that the declarant’s statement (that he intended to go meet the accused) was inadmissible because it was made under circumstances of suspicion. The surrounding facts allowed for the possibility that the declarant was lying to the recipient. In the earlier case of R. v. Smith, the Supreme Court similarly concluded that the deceased declarant may have had a motive to lie to the recipient of the statement and held that two of the four statements at issue were not admissible under the state of mind exception.

[26] In R. v. J.(T.), 2014 ONCA 321, the court was considering the admissibility of a hearsay statement made by the mother of the complainant in a sexual assault trial. The court held at para. 33:

Although S.C.'s knowledge of the alleged relationship between M.C. and the appellant may have been relevant, her statement was not made in circumstances free of suspicion. We do not know the foundation for her statement. It was made just a few months before S.C. and the appellant separated, at a time when their relationship was already strained. S.C. could have misperceived the relationship between her daughter and the appellant, or could even have impliedly lied about the relationship. In these circumstances, her statement was made under "circumstances of suspicion" and was not admissible under the state of mind exception.

The Principled Exception to the Hearsay Rule

[27] Where a party seeks to have hearsay admitted under the principled exception to the hearsay rule, that party must prove, on a balance of probabilities, the criteria of necessity and reliability: R. v. Youvarajah, 2013 SCC 41 at para. 21. Necessity is made out in this case because the declarant is deceased. Consequently, I review the law only as it pertains to reliability.

[28] The issue for a judge ruling on admissibility is the threshold reliability of the statements and not its ultimate reliability. Threshold reliability will be established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in its testing. The dangers relate to assessing the declarant’s perception, memory, narration, or sincerity: Bradshaw at para. 26.

[29] These dangers may be overcome where “(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)”: Bradshaw at para 27; see also Khelawon at paras. 61-63. A useful summary of this law was provided in R. v. Srun, 2019 ONCA 453 by Watt J.A. as follows at paras. 124-127:

The reliability requirement may be established in either or both of two ways.

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, 2006 SCC 57 at para. 63. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: Bradshaw at para. 28; R. v. Couture, 2007 SCC 28 at paras. 92-95.

Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process: Khelawon, at paras. 49, 62, 107; Bradshaw, at para. 31.

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: Fredericks v. R., 2018 NBCA 56 at para. 77; Bradshaw, at para. 32.

Substantive Reliability

[30] The standard for substantive reliability is high, but it does not require that reliability be established with absolute certainty. The trial judge must, however, “be satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”: Bradshaw at para. 31, citing Khelawon at para. 49.

[31] Corroborative evidence may be considered in assessing the substantive reliability of hearsay. Bradshaw directs how this should be done, and why courts must limit what evidence is used as corroborative evidence for the purposes of admitting hearsay.

[32] There has been some commentary in the jurisprudence and in legal commentary to the effect that Bradshaw “prescribes what is arguably a more exacting analysis of reliability” than was set out in Khelawon: Nurse at para. 98. It is important to note, however, that while it does provide further guidance on how to analyze any extrinsic evidence tending to confirm or conflict with the material issue in the hearsay utterance, Bradshaw does not modify the overall structure of the analysis to be performed when analyzing substantive reliability under the principled exception: R. v. McGenn, 2018 BCSC 753 at para. 24; R. v. Larue, 2018 YKCA 9 at para. 98, aff’d 2019 SCC 25. Accordingly, where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability.

[33] If the analysis of the admissibility of a hearsay utterance attracts consideration of extrinsic evidence, following Bradshaw, a trial judge must take certain analytical steps in determining whether the evidence is of assistance in determining the substantive reliability of hearsay. As per para. 57 of Bradshaw, 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 the statement in the particular circumstances of the case;
3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
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. [Emphasis added]

[34] Regardless of whether extrinsic evidence is relied upon, substantive reliability is established when the statement is found to be so reliable that it is unlikely to change under cross-examination: R. v. Smith at p. 933; Khelawon at para. 72; R. v. M.G.T., 2017 ONCA 736 at para. 139; Bradshaw at para. 31.

Assessing Threshold Reliability

[35] Since Bradshaw, and as explained in Nurse at para. 102, substantive reliability is “gauged by the circumstances in which the statement was made, and any evidence that corroborates or conflicts with the statement” (see also Bradshaw at para. 30 and R. v. Blackman, 2008 SCC 37 at para. 55). Bradshaw directs at para. 40 that “substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”. The evidence must “substantially” negate the possibility raised in the alternative explanation: Bradshaw at para. 31.

[36] The case of R. v. McMorris, 2020 ONCA 844 highlights the direction in Bradshaw that alternative explanations for the statement must be plausible. Writing for the court, Lauwers J.A. explained, at paras. 33-34, the correct approach to assessing alternative explanations for the statement:

The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 [of Bradshaw] in order to warrant a role in the determination of threshold reliability:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, that is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities. [emphasis in original]

Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny must be rejected. Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”. In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible. I take this to have been the intention of Karaktsanis J. in Bradshaw.

[37] As for the circumstances in which a statement is made, there may be a number which are relevant to the assessment of substantive reliability, including:

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

See R. v. J.M., 2010 ONCA 117 at para. 54. See also R. v. McGenn, 2018 BCSC 753 at para. 22, citing R. v. Hindessa at para. 14.

The Use of Corroborative Evidence

[38] Bradshaw and other cases provide further guidance as to what evidence may be considered corroborative, and how corroborative evidence may be used in the analysis of threshold reliability. For instance, the cases direct that:

• “[N]ot 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 if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”: Bradshaw at para. 44 (emphasis added);
• “The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove”: Bradshaw at para. 45 (emphasis in original);
• Corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the hearsay statement. It must show that the material aspects of the statement are unlikely to change under cross-examination. It does so if its “combined effect, when considered in the circumstances of the case, shows 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… Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist”: Bradshaw at para. 47 (emphasis in original);
• Corroborative evidence must itself be trustworthy. Untrustworthy evidence is not relevant to the inquiry. “Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence”: Bradshaw at para. 50;
• The standard set out in Bradshaw “will not be met where the corroborative evidence is equally consistent with another explanation. The corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy of the material aspects of the statement”: Nurse at para. 103 citing R. v. Tsega, 2019 ONCA 111 at para. 26; see Bradshaw at para. 48.

[39] With respect to the standard of proof, the Court in Bradshaw cautioned at para. 49:

While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

The Analysis Where a Hearsay Statement is Said to Be Admissible Under a Common-Law Exception to the Hearsay Rule

[40] In Nurse at para. 59, Trotter J.A. re-iterated the direction given by Charron J. in Khelawon at para. 60 that if a trial judge determines that evidence falls within one of the common law exceptions to the hearsay rule, this finding is “conclusive”, and the evidence is admissible.

[41] The party challenging admissibility may displace the conclusion that the evidence is admissible by challenging the exception itself: Nurse at para. 60, citing R. v. Mapara, 2005 SCC 23 at para. 15. Alternatively, 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”: Nurse at para. 61. In those instances, the onus will be on the party challenging the admissibility of evidence falling within a traditional exception to show that the evidence should nevertheless be inadmissible: Nurse at paras. 61 and 110; Mapara at paras. 15 and 60.

The Residual Discretion to Exclude Evidence

[42] Trial judges retain a residual discretion to exclude otherwise admissible evidence “where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit)”: R. v. Candir, 2009 ONCA 915 at para. 59 per Watt J.A. This will be the case where the prejudicial effect of the evidence exceeds its probative value.

[43] This discretion is not based on whether the court feels the Crown needs the evidence to prove its case: see R. v. Rowe, 2021 ONCA 684 at paras. 89-90. The issue is whether the statement is probative of an issue in dispute and whether the prejudicial impact of admitting the statement outweighs its probative value.

“Double Hearsay”

[44] Double hearsay is inadmissible “unless a hearsay exception can be established for each level of hearsay” - “each level of double hearsay must fall within an exception”: Starr at paras. 168-174, cited in R. v. Millard, [2017] O.J. No. 6891 at para. 22.

Analysis

The State of Mind Exception

[45] I begin the analysis with consideration of the admissibility of Mr. Delphin’s utterances under the traditional exception.

[46] The statement of Ms. Villeneuve indicates that Mr. Delphin expressed an intention to go to Kingston. The defence does not dispute the admissibility of this statement of Mr. Delphin’s intention.

[47] The Crown says Mr. Delphin also expressed an intention to act as “back up”. The utterances to this effect are the subject of dispute, and for good reason.

[48] It is worth noting that at no time did Mr. Delphin say he was going as “back up” to Ms. Villeneuve. That this was his intention is inferred from the larger conversation he reported having with Mr. Soubliere, which is itself another layer of hearsay. Mr. Delphin told Ms. Villeneuve that he had to go “just in case”, because there might be some sketchy people, that the concern related to a friend of Mr. Soubliere’s from prison, and that Mr. Soubliere wanted him there just in case. In each instance, these are not statements of Mr. Delphin’s intentions. They relate to Mr. Soubliere’s concerns and intentions.

[49] That it can be inferred that Mr. Delphin was willing to acquiesce to Mr. Soubliere’s concerns does suggest that he was willing to act as “back up”. But this is an inference that can only be drawn on the basis of evidence of Mr. Soubliere’s concerns, which the Crown concedes are not properly admissible for their truth.

[50] I have some trouble in finding that any of Mr. Delphin’s utterances in support of the conclusion that he was acting as “back up” amount to a statement of his own intention. If any of them are, I am not persuaded that they were not made in circumstances of suspicion. For the reasons I outline below in my analysis of admissibility under the principled exception, it is plausible that Mr. Delphin might have misled Ms. Villeneuve about the reasons he needed to go to Kingston.

[51] I find that the Crown has not met its onus. It has not demonstrated that Mr. Delphin’s utterances were not made in circumstances of suspicion. I agree with the court in Brooks that “[s]uspicious circumstances are circumstances that call into question the reliability of the out-of-court utterance or conduct”.

[52] Here, the global circumstances do not allay concerns about the reliability of Mr. Delphin’s utterances. He is a person who is seriously involved in the drug culture and involved in selling fentanyl to others. The evidence of his relationship with Ms. Villeneuve suggests that he did not share things with her: she described him as “surfacing” in answering her questions; that she didn’t get much out of Mr. Delphin; that he only tells her “bits and pieces”; that she did not realize how “deep he was” into the drug subculture; and that it came as a shock when she recently learned he was selling fentanyl. These circumstances do not give me comfort about the reliability of statements made by Mr. Delphin to Ms. Villeneuve.

[53] In these circumstances, it is completely plausible that Mr. Delphin might mislead Ms. Villeneuve about why he was going to Kingston. I find that as in Starr and Smith, the surrounding facts allow for the possibility that the hearsay declarant was lying to the recipient.

[54] In all the circumstances, I am not satisfied that the statements attributed to Mr. Delphin, beyond the statements to the effect that he intended to go to Kingston with Mr. Soubliere, are admissible as statements of present intention.

Admissibility Under the Principled Exception

[55] There are no markers of procedural reliability to the statements at issue here. Accordingly, the statements are only admissible if the Crown proves their substantive reliability on a balance of probabilities.

The Circumstances in Which the Utterances Were Made

[56] There is not a lot of evidence on this voir dire record regarding the circumstances in which Mr. Delphin’s utterances to Ms. Villeneuve were made.

[57] I consider that the statement was made to a person close to Mr. Delphin. Case law suggests that disclosure to a person with whom the declarant had a significant relationship is supportive of reliability. However, I also consider that the evidence shows that the declarant had the capacity to deceive the hearsay recipient. Ms. Villeneuve’s comments during her police interview demonstrate that in her view, Mr. Delphin often kept details from her.

[58] While he was known to be a frequent drug user, there is no evidence as to his condition at the time of the statement. There is also no evidence about the demeanor of the declarant at the time the statement was made.

[59] The detail in the statement, while not robust, is still specific. At the same time, there is reason to conclude that Mr. Delphin was being deliberately vague – for instance, Ms. Villeneuve said he was “surfacing” and she hated when he did that.

[60] As for how the utterances came to be made, they were not volunteered by Mr. Delphin, but were the product of persistent questioning by Ms. Villeneuve. Ms. Villeneuve described a conversation where Mr. Delphin was not being entirely forthcoming, hence her continued questioning of him.

[61] I also consider that Mr. Delphin was a participant in a criminal lifestyle. Ms. Villeneuve’s statement makes clear she had only recently become aware of the extent of his drug dealing and that it included selling fentanyl. The evidence supports the conclusion that Mr. Delphin did not disclose important information to Ms. Villeneuve, at least insofar as his criminal lifestyle was concerned.

[62] In all the circumstances, I am not persuaded that it is unlikely that Mr. Delphin would have misled Ms. Villeneuve about the details of his phone call with Mr. Soubliere. The circumstances in which the statements were made do not provide robust reassurances about their reliability.

There is No Corroborative Evidence for the Material Aspect of the Statement

[63] Nor am I persuaded that the evidence relied upon by the Crown is corroborative of the material aspect of the statements, as is required under the Bradshaw analysis.

[64] The Crown argues that the court can find corroboration for the statement that Mr. Delphin was going as “backup” for Mr. Soubliere in the fact that Mr. Delphin was found to have a loaded gun in his satchel, and surveillance photos showed him carrying his satchel earlier in the day when the men were with the accused on Princess Street.

[65] As required by Bradshaw, to determine whether this is corroborative evidence that is of assistance in the substantive reliability inquiry, I consider a number of issues.

[66] First, I find that the material aspect of the contentious portion of the statement that relates to Mr. Delphin’s intentions is that he was going to Kingston as “backup” for Mr. Soubliere.

[67] Second, I find that the specific hearsay danger raised by this aspect of the statement relates to Mr. Delphin’s sincerity.

[68] Third, I consider alternative or speculative explanations for the statement which are plausible: see McMorris at para. 33 citing Bradshaw at para. 49. For instance, it may be that Mr. Delphin wanted to accompany Mr. Soubliere to Kingston for his own reasons (for instance, to make more money dealing drugs in Kingston), but would have had a hard time convincing Ms. Villeneuve to accept that he was going if he wasn’t answering the call of a friend. He could have told Ms. Villeneuve he was helping his friend out to make it easier to cancel plans he had made with her. Ms. Villeneuve’s own statement refers to previous trips taken by Mr. Delphin to Kingston, and his history as a drug dealer. This evidentiary foundation makes this alternative explanation at least plausible.

[69] Fourth, I consider the corroborative evidence does not rule out this alternative explanation. As I have said, the Crown argues that the court can find corroboration in the fact that Mr. Delphin was found to have a loaded gun in his satchel, and surveillance photos showed him carrying his satchel earlier in the day. I disagree. As noted by the defence, Mr. Delphin had discussed carrying a gun with Ms. Villeneuve. To her knowledge, he carried it for his own protection. He could have had the gun with him for that reason, and not because he was playing “back up” for Mr. Soubliere.

[70] The Crown suggests that other evidence that corroborates some of the details in Mr. Delphin’s comments to Ms. Villeneuve should give the court confidence about the reliability of the statements. This is contrary to Bradshaw, which emphasizes that “[t]he function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove”: Bradshaw at para. 45 (emphasis in original).

[71] The Crown’s argument also runs afoul of the Supreme Court’s more recent direction in R. v. Charles, 2024 SCC 29 at paras. 55-56 that: “Evidence that is not connected with the material aspects of the statement is therefore not capable, even in combination with the circumstances of the case, of ruling out plausible alternative explanations for those aspects. It follows that evidence that confirms one material aspect of a statement is not necessarily admissible to establish the statement’s reliability with respect to its other material aspects”. Or, put another way, “it is not sufficient for evidence to support the declarant’s credibility generally, and such evidence cannot be used to assess the admissibility of other aspects of the statement”.

Conclusion

[72] I am not satisfied that the statements opposed by the defence are so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process: Bradshaw at para. 31, citing Khelawon at para. 49. In these circumstances, the Crown’s application must fail under the principled exception to the hearsay rule. Given my conclusion that the statements are not admissible under a traditional exception either, the proposed evidence is not admissible at trial.

Laurie Lacelle
Released orally: March 26, 2025
Released in writing for publication: June 25, 2025