R. v. Agwa and Ojulu, 2011 MBPC 21

CITATION: R. v. Agwa and Ojulu , 2011 MBPC 21 Date: 20110309 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) T. Chudy, ) for the Crown ) and ) ) Ojullo Agwa ) A. Libman and N. Fazenda, ) for the Accused Ojullo Agwa and ) ) Kworo Ojulu ) S. Simmonds and P. Edgett, Accused ) for the Accused Kworo Ojulu ) ) ) Reasons for Decision delivered: ) March 9, 2011 ) Elliott, P.J. NOTE : These proceedings are subject to a ban on publication pursuant to

section 539 of the Criminal Code of Canada . DECISION ON VOIR DIRE AT PRELIMINARY HEARING The Issue : [ 1 ] Both accused are charged with the first degree murder of Philip Mayur. [ 2 ] The issue is whether the gist of a comment overheard by the witness Josephine Lucier during a telephone conversation initiated by the victim Phillip Mayur (nicknamed “Mahjong”) and the accused Ojulu (nicknamed “Lomos”) is admissible evidence. [ 3 ] The words that the Crown wants admitted are to the effect of “I’m going to find you and kill you”, allegedly made shortly before the victim was in fact killed.

Other evidence implicates Ojulu as the person who killed Mayur by stabbing him once in the chest. Other evidence also indicates Agwa as being the one who led Ojulu to the victim’s residence where the stabbing took place. [ 4 ] The Crown argued that the evidence is admissible as “original evidence” that goes to Ojulu’s “intent” on the charge on which the Crown is proceeding, first degree, or premeditated, murder. He argued that Ms Lucier testified that she overheard such a remark, similar to a witness observing something by sight, smell or sound. It was a statement of Ojulu’s contemporaneous state of mind.

It started

a process of planning and deliberation, which led to Ojulu getting a knife and less than one-half hour later, stabbing and killing Mayur. [ 5 ] If it is not “original evidence”, but rather is “hearsay”, then, the Crown argued, the principled exception to the hearsay rule as set out by the Supreme Court of Canada in Khelawon applies.

It is necessary to the Crown’s case on first degree murder and is sufficiently reliable. [ 6 ] Thirdly, my research indicates that the comment may be admissible as an “admission.” [ 7 ] Counsel for the accused argued that the evidence is so “speculative, unreliable and prejudicial” it should not be admitted. The Evidence : Josephine Lucier: [ 8 ] On direct examination the Crown asked Ms Lucier, Q Okay. And after Lomos took over the phone, what if anything, did you overhear? A Well, Lomos, I don’t know, they were arguing and then Lomos said to him, like, I’m going to, like, find you and stuff like that.

Q And anything else? A Well, yeah, and then they were talking again in their language and then Lomos said to Mahjong, and like, I guess, like, he’s going to find him and, like, I guess, like, he said he’s going to find him and kill him, or in some extent like that.” (transcript, October 25, 2010, page 56) [ 9 ] And later, after being given an opportunity to refresh her memory from her statement to police: Q And so what did you overhear Annunja (the common name used to describe the co-accused Agwa) say?

A That---oh, Mahjong said something to Annunja that he was going to, like do his wife, like sleep with his wife….I think that’s what the argument started about. (transcript October 26, 2010, page 10 ) (It does not appear that the admissibility of this second piece of evidence is disputed - only the weight that can be attached to it - due to Ms Lucier’s degree of intoxication and other reliability factors.

It would be in a different category as it does not involve an utterance by either accused but, rather, the victim and would be hearsay for that reason.) [ 10 ] During cross-examination Ms Lucier testified that during his visit to Agwa’s residence earlier in the afternoon, the victim had been “really intoxicated” and “ignorant” and Agwa had asked him to leave “in a nice way” (transcript October 26, 2010, pages 22-23). [ 11 ] Upon being cross-examined by defence counsel about the later telephone conversation (transcript October 26, 2010, page 33): “So whatever comments are being made by the two of them, you really don’t know the context of that conversation; correct?”.

She responded, “Right.” [ 12 ] However, she later testified, that the conversation occurred after Agwa had “started saying you can’t, like you know, fuck my wife.” She said that after that, “Lomos took the phone.” (transcript October 26, 2010, page35). [ 13 ] Shortly afterward, when asked specifically about the contested comment, “The actual words, you can’t tell the court, correct?”, she responded, “Right. Okay, but I, if I remember, Mahjong was saying to Lomos on the phone, like, he was calling him out…Like he was saying to Lomos, well, if you - - I’m not really too sure, because, like, the conversation again.

But then Mahjong was, like, telling Lomos to come and fight him, is what he - - and something like that.” (transcript October 26, 2010, page 36). [ 14 ] Ms Lucier had earlier testified that she spoke some Arabic (transcript October 25 2010, page 25). She said that Annunja spoke Sudanese. She said that the victim Mahjong spoke English, Sudanese and some Arabic and Spanish (page 25). She later testified that although Annunja’s English was “broken” (page 56), Lomos’s was “good” (page 57). [ 15 ] Mayur, a friend of both accused, had visited Annunya’s apartment earlier that day.

He was already intoxicated and was selling bottles of perfume (other bottles labeled “tester - not for sale” were later found in his room in his rooming house). It appears that after he returned home he made a number of telephone calls back to the apartment of one of the accused on Kennedy Street. Ms Lucier testified that she only heard one end of the conversation, although she could hear shouting coming from Mayur’s end. She testified that much of the conversation was in “their” (Sudanese) language. [ 16 ] Ms.

Lucier had consumed large amounts of alcohol over the past 24 hours and was intoxicated. [ 17 ] As a result of what she believed was a fight with another individual, Apay, earlier, Ms Lucier had described a very bad injury to Agwa’s face - to the extent that a bone was visible on his cheek. Obng Agwa (“Jordan”): [ 18 ] The other witness who testified about the telephone calls was Obng Agwa, who referred to the co-accused Agwa as his “uncle”, even though it is unlikely that they are actually related. He was the person who also later witnessed the stabbing, which he referred to as an “accident”.

He confirmed a telephone conversation between the parties. He testified that he did not hear all that was said, as he was in the washroom part of the time. He also observed and overheard only one of three calls. It does appear that he witnessed the same telephone call however. He testified (transcript October 26, 2010, page 51), “Received phone call. Jenna (Ms Lucier) pick up phone and give to Annunya and Annunya to Lomos, (inaudible)”. He confirmed it was the victim who was calling and that he was

“mad” for some reason. However, in contrast to Ms Lucier, his girlfriend at the time, he testified that he could overhear both sides of the conversation, as Ojulu and the victim spoke while the phone was on the speaker phone setting. Also in contrast to Ms Lucier, he testified that the conversations were in English - “just English only”. Also, he, apparently coming from Sudan, as did the co-accused and victim, would have understood if any of the conversation took place in the Sudanese language. He testified that the victim “want to speak to Lomos, to Kworo, want to speak to Kworo.” (Ojulu).

Although much of Obng’s testimony after that does not make sense, perhaps partly because of his own difficulty with English, it appears the conversation may have been in regard to some issue in the past. When asked directly what he overheard Lomos say to the victim on the phone he said positively five times, “Lomos didn’t say anything wrong.” He also described Lomos as “sitting down, quiet drinking”. He said, “everybody drunk”. When he left the residence with Agwa and Ojulu, he heard no plan expressed to go and do anything to Mayur nor were either of the co-accused saying bad things about him.

He did say that Ojulu left the Agwa residence with a knife .He agreed with defence that they could have been going out for more beer - the Balmoral Hotel being very close to the victim’s residence - and that the reason for taking the knife could have been that people often get robbed for their beer in that neighbourhood. He then went on to describe walking with both co-accused to the victim’s home. His evidence was that only Agwa knew the way to the victim’s residence and that he led the other two there. Once there, Ojulu put out his hand to shake the hand of the victim.

The victim, instead of reciprocating, punched Ojulu in the face. He then appeared to be reaching for something, possibly or probably a knife. Ojulu then pulled out his knife and stabbed the victim once. Afterward, Ojulu did not appear to know what had happened. All three left the victim’s residence. [ 19 ] Obng was the only Crown witness who was directly able to implicate Ojulu in the stabbing. Olivia Everett: [ 20 ] Ms Everett was “living” at Agwa’s bachelor apartment at the time, as well as a “few other people” “off and on”.

She had lived there for about three months prior to the incident, along with “Apay, Stephanie and her sister Ashley”. There was no indication in the evidence that Ms Everett was Agwa’s girlfriend or “wife.” [ 21 ] Ms Everett was present during the time before Obng and the co-accused left. Even when asked directly by the Crown, she had no recollection of any telephone calls before they left. She, too, had been consuming significant amounts of alcohol. She testified that they were “talking in their language, so I didn’t understand exactly what they were saying” (transcript October 27, 2010, page 38).

They did not say where they were going, although she did say that they were “mad about something”. When they came back about one-half hour later Agwa “came back bloody and had a cut on his face”. [ 22 ] Ms Everett had earlier been at Shandilo’s where Agwa and Apay Oguok had argued. Apay was angry that Agwa had brought Ashley Land over to Shandilo’s while Apay was there with Ashley’s sister Stephanie. Apay had thrown Annunja down. She did not observe any injuries after that fight, although she agreed that she “couldn’t really tell”.

After being at Shandilo’s, Ms Everett, Marianne Roulette and Stephanie Land had gone to the vendor at the Balmoral Hotel to buy more beer. They met Mr. Hernandez, a friend of Mr. Mayur’s, and as they did not have a place to go to drink, he invited them to Mr. Mayur’s place nearby. They drank there. She then left with her friends and went back to Agwa’s. She did not have a key to get inside, so they buzzed up to be let in. Inside they found Ms Lucier and her boyfriend Obng. Agwa and then Ojulu returned.

After some more drinking she remembered that “Lomos”, “grabbed a knife from the kitchen and then left.” She remembered that they were “kinda drunk”. When Agwa returned the last time she asked him what had happened and he responded that “they just got into a fight”. He had a cut on his eyebrow and “maybe” blood on his hands (transcript October 2, 2010, page 42). The only one she had seen Agwa upset with that day was Apay. Marianne Roulette: [ 23 ] Ms Roulette was first at Agwa’s on Friday night, where she started a weekend of drinking.

Later on Saturday she went to Shandilo’s, where she confirmed that a fight had taken place between Apay and Agwa. She did not observe any injuries Agwa may have received as they had left through different doors. Then, after a stop at the vendor, they were invited to the victim’s residence by his friend. She drank there for a short time, along with Ms Everett and Stephanie Land. Stephanie Land telephoned Agwa’s apartment and then Ms Roulette, Stephanie and Olivia went to Agwa’s apartment, where everyone was drinking or intoxicated.

She did not recall any telephone calls whatsoever, although she remembered the co-accused and “OJ” leaving. Ojulu had a knife. They were mad, she believed at Apay. She testified that Agwa later returned with a cut on his forehead. Ashley Land: [ 24 ] Ashley Land was at the time the girlfriend of Apay Ogouk. She was at Agwa’s residence earlier in the afternoon when the victim visited. She later asked Agwa to take her to Shandilo’s because she was suspicious that her boyfriend was there with her sister Stephanie. At Shandilo’s Apay was angry that Agwa had brought her there and Apay and Agwa fought.

She did not observe any injuries to Agwa as he left through a different door. She did not return to Agwa’s apartment and therefore was not there during any telephone calls. Stephanie Land: [ 25 ] Ms Land was at Shandilo’s, the vendor, the victim’s and then Agwa’s apartment. At Shandilo’s she overheard a fight between Apay and Agwa, but did not see Agwa leave, so did not know if he was injured. Later, from the victim’s she went with her friends back to Agwa’s apartment.

She did not remember any telephone calls, just “O.J.” leaving and saying he would be “back in 10 minutes.” She testified that she was “really drunk” and that the “whole night was a blur”. (Telephone records in evidence indicate that at 6:57 p.m. (just two minutes before Mr. Mayur died), Stephanie Land phoned Agwa’s telephone number.) Apay Ogouk: [ 26 ] Mr. Ogouk was Ashley Land’s boyfriend at the time and had also been staying at Agwa’s studio apartment. He testified that he and Agwa fought twice that day - once at Shandilo’s, on Sargent and Kennedy, after Agwa came there with Ashley (apparently at her

request because she suspected Apay of being dishonest with her about doing something with her sister Stephanie). After the fightShandilo kicked them out. He went out the front door of Shandilo’s, Agwa went out the back door. Then they met each other back atAgwa’s “building” and fought again there. According to Mr. Ogouk, Agwa was bleeding from his forehead after fighting with him. Healso testified that after the fights, when he, having made up with his girlfriend Ashley, was back at her place, he and Agwa were stillangry with each other and that they had an angry phone conversation, yelling at each other.

During that call somebody else took thetelephone “for a bit”, that somebody being probably Lomos. The Law: Is the comment original evidence going to Ojulu’s state of mind or intent or admissible as a principled exception of the hearsayrule? [27] The Crown argued that the evidence should be admitted as either original evidence or as a principled exception to the hearsayrule. The Crown also provided me with excerpts from evidence textbooks. However, they were not the most recent versions and I havelooked at those.

One would appear to be from McWilliam’s Canadian Criminal Evidence, June 2010 edition at 7-81-82: Care should be taken to differentiate between those cases in which a statement is received as original evidence, that is to say where thefact of the statement itself is evidence without regard to the sincerity of the declarant, and those cases in which the statement is admittedwith a view to proving that what the declarant said is true. In the former case the statement is not hearsay; in the latter it is only admittedas an exception. In R. v.

R.P., Doherty, J distinguished the hearsay and original evidence avenues for the admission of such evidencethus: “If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statementspermit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantialevidence from which a state of mind can be inferred.

The result is the same whichever route is taken, although circumstantial evidenceof state of mind poses added problems rising out of the inference drawing process. [28] The editors, however, then go on to write: However, with the exception of statements where proof of knowledge is the relevant fact, it is difficult to imagine the case where theout-of-court evidence would be properly characterized as “original evidence” from which an inference of fact is being drawn withoutengaging the relevant hearsay concerns.

At footnote 379 at page 7-85, they state: Some authority suggests that the statement of intention (indeed all “state of mind” statements) is admitted as original evidence, ratherthan as hearsay. This approach, even if it were sustainable before Starr, would seem to be discredited by the principled approach todefining hearsay mandated in that case. [29] In this case the words are being put forward not to prove the truth that Mr. Agulu killed Mr. Mayur, but that he intended andplanned to do so, as part of the Crown’s case on the charge of premeditated murder.

However, given how important this evidence mightbe to the Crown’s case, surely some reliability issues arise. [30] Also according to editors of McWilliams (4th edition)at page 7-18: …Khelawon identifies the essential features of hearsay as: (1) the fact that the statement is adduced to prove the truth of its contents; and, (2) the absence of a contemporaneous opportunity to cross-examine the declarant. [31] Surely in this case, where the “threat” or words spoken are of questionable reliability, where the “declarant,” being theaccused, is not compellable for cross-examination, and yet the words are being offered to prove the mens rea of first degree murder, theonly possible way they could/should be admitted is through the principled exception to the hearsay rule. [32] Therefore, I believe I have to determine if the evidence has at least “threshold reliability”. [33] Defence, on the other hand, argues the evidence is so speculative, unreliable and prejudicial that it should not be admitted.

Is the evidence so “speculative, unreliable and prejudicial” it should not be admitted? [34] Defence cited R. v. Ferris from the Supreme Court of Canada, (SCC), [1994] 3 S.C.R. 756, dismissing anappeal from the Alberta Court of Appeal (1994), 1994 ABCA 20 , 149 A.R. 1. Defence has also provided R. v. Hunter, adecision of the Ontario Court of Appeal, (ON CA), [2001] O.J.

No. 2388, which cited Ferris. [35] Ferris concerned a fact situation where the accused was overheard, subsequent to his arrest for murder, to tell his father on thetelephone, “I killed David.” The officer who overheard that comment did not hear what the accused’s father had said or what was saidbefore or after those three words. The accused’s father was not called to testify as to the meaning of the utterance in question. Nor werethere any circumstances, facts or context within which the true meaning of the utterance could be inferred.

In the cross-examination ofthe officer who overheard the comment, he agreed with defence counsel that the three words, “I killed David”, could have been at thebeginning, middle or end of a sentence. He also, after a question by the trial judge, agreed they could have constituted the completesentence. The officer acknowledged that the words were “a snippet” of the conversation. The trial judge, in admitting the evidence, notedthat the words he had heard were unchallenged - that is, there was no issue about the accuracy of the words sought to be admitted.

In hischarge to the jury he dealt with the issues of whether the accused made the statement and the appropriate weight to be attached to it.Nothing was said, however, about the issue of the statement’s completeness or meaning. The Alberta Court of Appeal allowed theappeal, saying that the trial judge erred in ruling that the statement was admissible. Given that neither a trial judge nor a jury could

ascertain the meaning of the words, those words could not be relevant to any act in issue and, therefore, had no probative value. TheCrown did not discharge its onus to establish that the words were capable of being an admission. The trial judge’s error in admitting thestatement was not corrected in the trial judge’s charge, given his failure to address the issue of completeness or meaning.

Where wordswere admitted at a jury trial, jurors must be carefully instructed to determine whether the words constituted a complete thought andadmission and that determination was to be made from the facts and circumstances surrounding the utterance only. [36] In its analysis, the Alberta Court of Appeal set out the analysis under the following headings:

(1) Admissibilty (

a) Relevance (

b) Breach of the Hearsay Rule (

c) Onus

(2) Adequacy of Jury Charge [37] In regard to relevance, the Court said that the policy of the law is that is “primarily inclusionary” (at para. 12). However theCourt said (at para. 13): The threshold test of admissibility of all evidence is relevance. The threshold test for admissibility is relevance. Is the statementrelevant? If not, it is inadmissible. If so, it is admissible, unless some specific rule forbids. [38] The Court went on to say (at paras. 15 and 16): 15. …The onus rests on the party tendering the evidence to prove the connection between the evidence offered and the fact.

In thiscase the only possible relevance to these words is if they could be found to constitute an admission by the accused that he killed David.They are being tendered as proof of their contents. The issue here is not whether the officer is telling the truth that the accused utteredthese words, but whether any meaning can be put on the words. Are they an admission? Certainly if they are, they are relevant andhighly probative. 16.

The general rule for admissibility is that preliminary questions which are a condition of admissibility are for the trial judge in hisor her capacity as judge of the law rather than judge of the fact. If factual questions must be resolved a voir dire may be required. (SeeR. v. Evans, (SCC), [1993] 3 S.C.R. 653)… [39] The Court went on to give examples of ways the words could have been used which would not have constituted an admission ofguilt.

The Court of Appeal therefore concluded that, “Without meaning being ascertainable the words are not relevant to any fact in issueand they have no probative value.” (at para. 18) [40] The Court then cited Wigmore in regard to verbal utterances, “It follows that the thought as a whole, and as it actually existed,cannot be ascertained without taking the utterance as a whole and comparing the successive elements and their mutual relations. To lookat a part alone would be to obtain a false notion of the thought. The total - that is to say, the real - meaning can be got at only by going onto the end of the utterance.

One

part cannot be separated and taken by itself without doing injustice, by producing misrepresentation.”(emphasis is the Alberta Court of Appeal’s) [41] However, the Court later stated (at para. 25), “…In confession cases generally, the person to whom the accused speaksgenerally testifies as to the gist of the words spoken, notwithstanding the fact that the evidence may not be fully recorded, or that itcannot be repeated word for word.” [42] Conrad, J.A. stated (at para. 27): In my view, the trial judge, in his ruling following the voir dire, never directed his mind to the issue of completeness and whether or notwords incapable of definitive meaning could be relevant to anything.

He said in his ruling that all the circumstances could be brought outand the jury could assess the weight to be given to it. What circumstances? He had all the circumstances and it was his duty to determinewhether or not on the evidence before him a properly instructed jury could determine from the fragmented utterance the meaning of thewhole. He did not appear to direct his mind to that issue. This is not a question of weight. The question is whether or not this accusedmade a statement which is relevant. If it was an admission, I agree with McClung, J.A. that it is highly probative.

However, because theCrown case makes it clear words were spoken before and after, and the utterance was incomplete, it is impossible to ascertain themeaning of the words. Thus no weight can be given to it and the prejudice of its introduction is easy to contemplate. There is a realprejudice of forbidden reasoning here. There would be an enormous temptation for any trier of fact to look at the outside evidence thattends to implicate the accused in the murder, use those facts to conclude that the accused probably committed the murder, and thattherefore he admitted that he did.

That finding would then be used to raise the probability of guilt to a conclusion of guilt.

The dangerimplicit in that type of circuitous reasoning is obvious. [43] An appeal to the Supreme Court of Canada, (SCC), [1994] 3 S.C.R. 756, was dismissed by Sopinka, J. in twoparagraphs as follows: SOPINKA J. -- In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had anyrelevance, by reason of the circumstances fully outlined by Conrad J.A., its meaning was so speculative and its probative value sotenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value. The appeal is therefore dismissed.

[44] Hunter was a similar decision in that there was no context available. Defence and Crown both provided the 1992 decision ofthe Supreme Court of Canada in Smith, (SCC), [1992] 2 S.C.R. 915. Smith was decided early in the development of theprincipled exception to the hearsay rule, and looked at the admissibility of a number of telephone calls made by the victim shortly beforeher murder. It looked at the reliability of that evidence and the issue of prejudice. [45] Another case that provides some support for the defence argument is R. v.

K.P.H., 2007 ABQB 728, where the trial judgerefused to admit words allegedly spoken by the accused because the Crown had not proven on a balance of probabilities that they wereuttered. [46] In comparing the situation in Ferris and Hunter to the one before me, there are both similarities and differences. In favour ofexclusion is that the testimony of Ms Lucier contained only a fragment of a conversation, or three conversations. It contained not theexact words spoken, as in those cases, but rather the gist of the comment. However, unlike in those cases, there is context.

Not onlyMs Lucier, but others, testified about an angry exchange between the victim and accused. [47] R. v. Assign (2006), 2006 NSCA 47 , 207 C.C.C (3d) 372, is cited in McWilliams (8-20) as a decision where the NovaScotia Court of Appeal allowed in an incomplete utterance of the accused. In that case, not only were the words overheard not inquestion, there was sufficient context. [48] Paciocco and Stuesser in The Law of Evidence (4th Edition) discuss the issue of probative/prejudicial evidence in their sectionon The Exclusionary Discretion and Weighing “Probative Value”.

Even were I to see myself akin to a judge deciding whether towithdraw evidence from a jury, at page 39 they write, The Supreme Court of Canada has long battled with similar questions in applying the rule that requires the judge to withdraw a case fromthe jury where the Crown finishes its evidence without presenting a prima facie case.

In order to avoid confusing the function of the trierof law and trier of fact, the court has settled that the judge considering a motion to remove the case from the jury is not to assess thecredibility of Crown witnesses, but is to proceed on the assumption that the evidence they have related is true. Credibility is for the trierof fact, the jury, to decide. The judge might not believe a witness, but the jury might.

Moreover, although the authority is uneven, unlessthe evidence is so marginal as to be speculative, the judge is not to consider its reliability either. [49] Also, in regard to the issue of prejudice versus probative value, Justice Steel wrote in Korski, 2009 MBCA 37 (at para. 56): Third, Korski argued that the trial judge erred in not weighing the prejudicial value of the statements against their probative value.

It istrue that, even if out-of-court statements are considered to have passed the threshold reliability test, a trial judge still has residualdiscretion to exclude that evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence.However, as Doherty J.A. pointed out in Humaid (at para. 57), these will be rare cases, where the credibility or reliability of the narratorof the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value. [50] In this case, the evidence also adduced about raised voices and anger, and the evidence that Mr.

Ojulu also grabbed a knife,could be seen by the trier of fact to add some “context” to the words. Although problematic for a number of reasons, thecredibility/reliability of Ms Lucier is not “so deficient that it robs the out-of-court statement of any potential probative value. It is not sospeculative, unreliable and prejudicial that it should not be admitted.

Was the comment allegedly made by Ojulu an “admission”? [51] If it is admissible as an admission, is a reliability assessment necessary? [52] An “admission” is described in The Law of Evidence (4th Edition) (Paciocco and Stuesser) at page 138, “Admissions are actsor words of a party offered as evidence against that party.” Paciocco and Stuesser offer as an example R. v. Evans, (SCC), [1993] S.C.J.

No. 115. [53] However, the editors of the 4th edition of McWilliam’s have written (at page 7-124), “Evans has frequently been cited byappellate courts in support of the proposition that admissions are not hearsay or, alternatively, are not subject to assessment under thereliability prongs of the principled approach. Other courts have come to the opposite conclusion.” One of the courts that the authors cite as having come to the “opposite conclusion” is the Manitoba Court of Queen’s Bench in R. v.

Teerhuis-Moar (2009), 65 C.R.R (6th) 335. [54] The editors of McWilliams conclude at page7-124, “It would appear that courts have too quickly assumed that admissions arenot subject to hearsay analysis.” (See also their comments at page 7-19.) They quote Justice Charron (as she then was) in a decision ofthe Ontario Court of Appeal, R. v. Moore-McFarlane (2002), who in a confessions case dealt with concepts of reliability and fairness. [55] R. v. Edgar, 2010 ONCA 529 , [2010] O.J.

No. 3152, a recent decision of the Ontario Court of Appeal dealing with anaccused’s application to have his prior statement admitted, is also informative. It would appear to describe such statements as hearsay,but indicate that they may be admissible by way of a principled exception to the hearsay rule. [56] In regard to who should make the ultimate reliability assessment regarding admissions, Mr.

Justice David Watt, in the 2010edition of Watt’s Manual of Criminal Evidence at page 573, discussing the requirement of a voir dire for admissions made to persons inauthority, states: The statement may be received where there is: • some evidence that the statement was made by D; and • proof beyond a reasonable doubt that the statement was voluntary. The weight of a confession admitted in evidence is a matter forthe trier of fact.

And later on the same page, “…proof beyond a reasonable doubt that D made the statement is an issue…at the end of the trial (for the)trier of fact.” Reliability assessment: [57] As it is unnecessary to my ruling in this case to characterize what type of evidence this is, I have decided not to do so. [58] There is no doubt in my mind that the evidence is both relevant and material. As Joyal, ACJ stated in the Teerhuis case, supra(at para 25): For evidence to be admissible, it must be material, relevant and otherwise not subject to an exclusionary rule. See David M.

Paciocco &Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law Inc., 2005) at 25. As indicated at p. 28, “Evidence is relevant where ithas some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than thatproposition would appear to be in the absence of that evidence.” [59] I am satisfied that not only is it relevant, but it is sufficiently reliable to be admissible at this stage of the proceedings.

Whetherthe evidence is original evidence going to state of mind, hearsay evidence being adduced as a principled exception, or an admission, Iconclude that the safer course is for me to make some sort of reliability assessment. However, this assessment is only a preliminary one- to determine either “threshold reliability” as an exception to the hearsay rule or whether the statement was “probably made” to admit itas an admission. Although the tests are not the same, a number of the factors are.

I have concluded that either way, the evidence hassufficient reliability to be admissible at this stage of the proceedings. [60] As Justice Steel wrote in Korski (at paras. 39-41): 39 What factors should be considered in determining whether a hearsay statement is sufficiently reliable to be admissible? TheSupreme Court of Canada, in Khelawon, clarified and reconsidered its position on this point, as previously contained in R. v. Starr, 2000SCC 40 , 2000 SCC 40, [2000] 2 S.C.R. 144.

In Khelawon, Charron J. indicated (at para. 4): …. ... [A]ll 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 …. 40 However, there must be a distinction between the evidence that is considered on the voir dire to determine threshold reliabilityand the evidence that is considered in the main trial. The question is where to draw the line. See R. v.

R.(T.), 2007 ONCA 374 ,2007 ONCA 374, 220 C.C.C. (3d) 37 at para. 19. 41 So, the inquiry becomes quite contextual. The court must adopt a functional approach, focussing on the particular dangers raisedby the hearsay evidence sought to be introduced… [61] In discussing the principled exception to the hearsay rule, Paciocco and Stuesser make two statements, one right after the other(at page 19): ...in R. v.

U.(F.J.), the Supreme Court of Canada noted that, in applying the general hearsay exception allowing for the proof of“necessary” and “reliable” hearsay evidence, the party calling the evidence has to prove that the out-of- court statement is probablyreliable before it can be admitted. Similarly, in R. v.

Evans, the Court held that hearsay could not be proved as an admission by theaccused unless the Crown could establish that the statement was probably made by the accused. (Evans (1993), (SCC), 25 C.R. (4th) 46 (SCC)) [62] The factors that I believe give this evidence sufficient reliability for admission are as follows: • Ms Lucier is a friend of both accused and had no motive to fabricate. • There was nothing in her testimony to make me believe she was being anything but truthful. • There was some corroboration of an angry telephone conversation between the parties, and there was “context”, albeit the contextbeing drunken argument between the parties. • Ojulu left the apartment with a knife. • Ojulu did exactly what she testified he said he was going to do - found Mayur and killed him. • Ms Lucier is and should be available for cross-examination. [63] If I had to decide on a “beyond a reasonable doubt” level whether Ojulu made the comment in question, I would have foundthat it had not been proven that he did: • Ms Lucier testified that the conversation took place in another language while Obng Agwa was quite positive that theconversation all took place in English. • Ms Lucier testified that after Mayur asked to speak to Annunya, she heard only one side of the conversation.

Obng Agwa, on theother hand, was positive that the speaker phone was on. • Although Ms Lucier was certain that the caller was Mayur, there was also evidence that Apay Agouk, who had just fought withAgwa twice, phoned from his girlfriend Ashley Land’s apartment and had another angry conversation with Agwa. • Ms Lucier had been consuming alcohol for many hours.

• Ms Lucier only recalled the gist of one comment by either accused although there were apparently a number of telephone calls and conversations. • Many months had elapsed between the incident and her testimony. • The victim was a friend of the accused who had visited earlier in the day - there was no motive to “find him and kill him”. • According to the Crown’s best evidence neither accused were angry on their way to the victim’s and Ojulu, upon arrival at the victim’s residence, put his hand out to shake hands with the victim, as if he was attempting to make up. [ 64 ] However, after balancing all the competing reliability factors, I conclude that Ms Lucier’s recollection and testimony are “probably reliable” and have sufficient “ threshold reliability” to be admissible. [ 65 ] I therefore rule that the evidence is admissible.

Original signed by Judge J.A. Elliott P.J.