HER MAJESTY THE QUEEN, – v. –, 2022 NBKB 257

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Her Majesty the Queen v. Calvin Andrew Lewis 2022 NBKB 257 MCR/13/2020 BETWEEN: HER MAJESTY THE QUEEN, – and – CALVIN ANDREW LEWIS DECISION ON VOIR DIRE # 4 – Admissibility of Hearsay Evidence BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: April 20, 22, 27, 29, 2022 and May 2, 2022 DATE OF DECISION: May 13, 2022 APPEARANCES: Malika Levesque & Annie St-Jacques, for the Crown Nathan Gorham, Q.C. & Breana Vandebeek, for the Accused

DYSART, J. INTRODUCTION [ 1 ] Calvin Lewis is charged with first degree murder in the death of his girlfriend, Tina McAleer. Mr. Lewis admits that he killed Ms. McAleer in the apartment where they were living in Hillsborough, New Brunswick, on May 2, 2020. He admits that he stabbed her and that the stabbing caused her death, but he denies having the intent for murder and he maintains that he was in the throes of a drug- induced psychosis at the time of the killing. [ 2 ] Because there is no issue that Ms.

McAleer was killed by the accused, I will sometimes refer to her as the “victim.” My use of that term is not intended in any way to suggest or to imply that the Court has made any decisions or drawn any conclusions as to guilt. [ 3 ] Mr. Lewis is being tried by judge alone. Prior to the start of the trial, the Crown filed an application for a ruling on the admissibility of certain statements purportedly made by Ms. McAleer to other persons prior to her death, where she advised that Mr. Lewis had threatened to kill her or to harm her, or where she indicated that she was afraid.

The Crown argues that those antemortem statements fall within the exception to hearsay going to the victim’s state of mind, and in turn, the Crown seeks to rely upon those statements as being probative of Mr. Lewis’ animus or motive to kill Ms. McAleer, and whether he had the necessary intent for murder.

In the alternative, the Crown argues that the utterances are admissible under the principled approach to hearsay. [ 4 ] The Defence objects to the admission of those statements, arguing that they do not fall squarely within the common law exception relating to state of mind, and because the statements are not sufficiently reliable as to be admissible under the principled approach. Essentially, the Defence argues that Ms.

McAleer was a drug-user herself at around the time these statements were purportedly made, and that their reliability is therefore suspect due to the likelihood that her perception, memory or sincerity were impaired to the point that the utterances lack procedural and/or substantive safeguards that must be present in order to admit hearsay evidence. The Defence also argues that, with respect to one of those declarations, Ms.

McAleer wholly recanted those allegations, completely undermining their reliability. [ 5 ] The parties agreed to proceed by way of a blended voir dire and trial, such that the evidence given by the witnesses relating to the hearsay will also become, if deemed admissible, evidence for use in the trial proper. [ 6 ] I will begin by summarizing the evidence before the Court on the voir dire. SAMANTHA SANFORD [ 7 ] Samantha Sanford is the 30-year-old daughter of the victim, Tina McAleer. [ 8 ] Ms.

Sanford testified that in the early part of September 2019, she saw on social media that the house where Tina McAleer had been living in Riverview, New Brunswick, was on fire. Concerned for her mother’s safety, she called Ms. McAleer that morning. By the time she reached her mother, Ms. Sanford was in her car en route from Riverside-Albert towards Riverview. Ms. Sanford testified that Tina McAleer told her that she and Calvin Lewis had gotten into an argument and that Mr. Lewis had threatened to kill her. She therefore fled the Riverview home, and thus was not present when the fire started. [ 9 ] Ms.

Sanford testified that Ms. McAleer’s and Mr. Lewis’ relationship was sometimes happy, but that it often involved conflict and violence. She testified that it was not uncommon to receive calls from Tina McAleer reporting that she was afraid, and asking Ms. Sanford to come to their home. [ 10 ] Ms. Sanford testified that she was aware that her mother smoked marijuana, but she was not aware of any use of harder drugs.

LAURA TINGLEY [ 11 ] Laura Tingley is Tina McAleer’s sister. [ 12 ] Ms. Tingley testified that on the Tuesday prior to her death, Tina McAleer called her. She testified that it was night time, and that Tina McAleer told her that she and Mr. Lewis had been fighting, that he had threatened to kill her and that he would not leave her alone. She sounded panicked and she was crying. [ 13 ] Ms. Tingley testified that she asked her nephew, Daniel Tingley, and her then-boyfriend, Rodney Smith, to go to the apartment in Hillsborough to check on Tina McAleer.

The Court heard from Daniel Tingley, who testified only that when he arrived at the apartment, Ms. McAleer and Mr. Lewis were seated together in the kitchen, and that Ms. McAleer had a towel wrapped around her hand, which appeared to be bleeding. No evidence was elicited by the Crown’s witnesses as to how she came to be injured. [ 14 ] Ms. Tingley also described an event that had occurred about one month prior to the Ms. McAleer’s death, at Cook’s Convenience store and gas bar in Hillsborough. She testified that, as she was standing next to the gas pump, Ms. McAleer was speaking to Ms.

Tingley who was about 50 feet away. Mr. Lewis was apparently in Ms. McAleer’s vehicle. Ms. Tingley testified that Ms. McAleer said, “He’s doing it again. He’s threatening me.” Ms. Tingley then described her own observations of Mr. Lewis uttering threats to kill and beat Ms. McAleer. EVIDENCE OF TINA McALEER’S DRUG USE [ 15 ] The parties submitted an Agreed Statement of Facts prior to trial, which includes a number of attached documents which were admitted into evidence by consent. Among those documents is a toxicology report relating to blood drawn from Tina McAleer at the time of her autopsy on May 4, 2020.

According to that report, prepared by Daniel Isenschmid, Forensic Toxicologist, Tina McAleer was positive for THC, amphetamine and methamphetamine. No additional expert testimony was presented to explain those findings. [ 16 ] The Court received additional evidence relating to drug use by the victim. [ 17 ] Ms. Sanford testified that she was aware that her mother smoked pot, i.e. marijuana, but she had not observed her taking other drugs. Ms. Tingley also confirmed that Tina McAleer smoked marijuana, but she had no knowledge of other drug use. [ 18 ] Shane Brady also testified as to rug use. Mr. Brady, who is Mr.

Lewis’ son, was living with Ms. McAleer and Mr. Lewis at the Hillsborough apartment for a few months prior to May 2, 2020. Mr. Brady was asked on cross-examination about Tina McAleer’s drug use. Initially, Mr. Brady denied that she used drugs. He then acknowledged that she smoked marijuana. He was then asked about a statement which he gave to a police officer, a Constable Paynter, on the day of Tina McAleer’s death. An excerpt of that statement was admitted as evidence for use on the voir dire. The relevant portions read as follows: PAYNTER: Was there any drinking or- or drugs going on last night?

BRADY: Uh there's 30 PAYNTER: Does your dad or Tina ever us (sic). BRADY: He was definitely drugs. PAYNTER: Yeah BRADY: Yeah

PAYNTER: Would they have been using last night and what what would they what would they been on (sic)? Crack would it have been coke? BRADY: Woulda been speed . PAYNTER: Speed. Did they just where (sic) they using it all day yesterday and into the night or? BRADY: They use it every day. And later: PAYNTER: Now you mentioned that there was some possible use of speed last night, uhm did you see that at all? Do ya do ya, I mean was is, it was a Friday night.

Was is (sic) party night there at the? (sic) BRADY: No, but I know like for me I can’t say I know they did drugs but like from what I’ve experienced and seen them, they do drugs every day like. PAYNTER: Are they heavy drinkers? They just BRADY: No well Tina is kinda a heavy drinker, she drinks, well not heavy, like she drinks a lot of beer. PAYNTER: Ok BRADY: Or like, not heavy or hard shit or whatever like, maybe like 5-6 beer a 10 (sic) day or like whatever none my fucking business. She can do what she wants. (sniff) [ 19 ] On cross, it was suggested to Mr.

Brady that by using the word “they”, he told police that both Calvin Lewis and Tina McAleer were using speed. He acknowledged that the statement seems to say that, but he testified that he meant to say that Mr. Lewis was using speed on a daily basis, but that Ms. McAleer was using drugs, i.e. marijuana on a daily basis. [ 20 ] Again, it is undisputed that Tina McAleer had THC, amphetamine and methamphetamine in her system at the time of her death. That she “used speed” is not in issue – rather, the question is the frequency with which she used it and the amounts of the drug she ingested.

And on those questions, the evidence is not clear. AFFIDAVIT SWORN BY TINA McALEER [ 21 ] The Defence presented an affidavit sworn by Ms. McAleer on November 29, 2019. That affidavit was prepared in order that Ms. McAleer could retract or recant certain information she gave to police on the morning of September 27, 2019. The Court also admitted into evidence a recording of the statement Ms. McAleer gave to police on September 27, 2019. [ 22 ] Some context is necessary. On September 27, 2019, the house where Ms. McAleer was then living in Riverview, New Brunswick, caught fire and burned.

That, it seems, is the scenario described by Samantha Sanford in her testimony. Police were obviously called to investigate the fire, and, in the course of that investigation, they obtained the recorded statement from Ms. McAleer.

[ 23 ] In her recorded statement to police, which the Court listened to during the voir dire, Ms. McAleer reported that, on the previous day, September 26, 2019, she and Calvin Lewis got into an argument and that he had threatened to kill her. She reported that he said, “I'm going to slit your throat. You're going to get killed from your own stupidity.” She told police that she therefore fled the home and went to stay with family members in Riverside-Albert. She also described other threats and assaults allegedly made to her by Mr.

Lewis. [ 24 ] It bears stating that this statement to police was admitted solely to provide context to the affidavit, which I will now summarize.

Neither the statement nor the affidavit are evidence admitted for use by the Court in the trial proper, and they will not be considered by the Court in the determination of whether the Crown has proven beyond a reasonable doubt that Calvin Lewis is guilty of the offence with which he is charged. [ 25 ] As a result of its investigation, and presumably based in part on the statement given by Tina McAleer, Calvin Lewis was charged with uttering threats to kill her and to burn her residence. Apparently in response to those charges, and after receiving a subpoena to appear as a witness at trial, Ms.

McAleer swore a 47- paragraph affidavit in which she completely recanted from what she had reported to police, indicating that she wished to provide a statement in order to exonerate Mr. Lewis. [ 26 ] In her affidavit, Ms. McAleer swore that on the evening of September 26, 2020, she had stayed with a friend in Riverside-Albert, and that she had consumed alcohol, marijuana and “five to six (5-6) pills of methamphetamine.” She stated that she “fell off the wagon that night.” [ 27 ] Regarding her statement to police, Ms.

McAleer swore that she had lied and that she had merely repeated rumors and allegations that she had heard from other people. She specifically stated in her affidavit that Calvin Lewis had never threatened to cause her death, that she had never been afraid of Calvin Lewis and that he had not threatened her in any way. [ 28 ] Thus, it would seem that, regarding the threat that was purportedly communicated by Tina McAleer to her daughter, Samantha Sanford, Ms. McAleer recanted and denied that any such threat was ever made.

ISSUES [ 29 ] The Court must determine whether the hearsay statements made by the victim, Tina McAleer, to her daughter Samantha Sanford and to her sister, Laura Tingley, regarding threats made by Calvin Lewis, are admissible for use at trial. THE LAW [ 30 ] As stated by S. N. Lederman, A.W. Bryant and M.K. Fuerst in The Law of Evidence in Canada, Fifth Edition (2018, LexisNexis Canada), at page 249: The rule against hearsay has been part of the bedrock of the law of evidence for centuries.

Over the last two decades, however, it has undergone significant judicial reform at the hands of the Supreme Court of Canada. Although not easy to define, a working definition of the rule can be stated as follows: Written or oral statements, or communicated conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

The usual hearsay circumstance covered by the rule is where the witness testifies as to what someone else, who is not before the court, said. [...] [ 31 ] Of course, while that is a general statement of the rule, the law relating to hearsay is neither absolute nor simple.

THE CROWN’S POSITION [32] At common law, there are a number of so-called exceptions, i.e. circumstances under which an out-of-court statement ispresumptively admissible for the truth of its content. One such exception relates to the “state of mind” of the declarant. It is thisexception upon which the Crown primarily seeks to rely in this case. The Crown argues, in the alternative, that the statements should beadmitted in accordance with the principled approach. [33] The Crown cites a line of jurisprudence including the Supreme Court of Canada’s decision in R. v.

Griffin, 2009 SCC 28, a decision written by Justice Charon. In that case, Mr. Griffin was charged with murder. The victim’s girlfriend testified thatshortly before his death, the victim said to her, “If anything happens to me it’s your cousin’s family.” She understood that he wasreferring to the accused and that the victim was afraid.

The trial judge ruled that the statement was admissible to show the state of mindof the victim. [34] In upholding the trial judge’s decision to admit the evidence, Justice Charon distinguished between a permitted use of “state ofmind” evidence and a non-permitted use, writing: [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. Noone questioned at trial, or in the court below, that the inference that Poirier feared Griffin could be drawn from the former’s statement toWilliams.

The statement was tendered and admitted for the truth of the fact that Poirier himself feared Griffin, a purpose that does notexceed the scope of the “state of mind” exception to the hearsay rule. As this Court stated in Starr, declarations of present state ofmind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant and thestatement is made in a natural manner and not under circumstances of suspicion (para. 168). In the present case, there was noargument that the statement was made under circumstances of suspicion.

Poirier’s fear of Griffin was a relevant fact — it was relevant tomotive and, in turn to the issue of identification. Although a declarant’s hearsay statement cannot constitute proof of a third party’s stateof 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. [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 directbearing on the resolution of the identity of his murderer, it is well established that a deceased’s mental state may be relevant to thequestion 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 tothat 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 ispurely circumstantial, is equally well established at law: Lewis v. The Queen, (SCC), [1979] 2 S.C.R. 821, at pp. 834-38. [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, 2006 NSCA 47, 244 N.S.R. (2d) 96, identity wasthe crucial issue at trial.

The trial judge admitted statements made by the deceased expressing fear of the accused on the basis thatsuch statements were probative of the issues of “malice, motive, [and] state of mind” (para. 104) which in turn were relevant toidentity. The Nova Scotia Court of Appeal agreed (at para. 133): [The deceased’s] state of mind and [the accused’s] state of mind are probative of the relationship between them at the time of [thedeceased’s] murder. Therefore, they are probative of motive, which is relevant to identity. [62] The conclusion in Assoun echoes that of the Ontario Court of Appeal in R. v.

Foreman (2002), (ON CA), 6 C.R.(6th) 201, where the court considered the relationship between a deceased’s state of mind and the issue of motive. Upholding the trialjudge’s admission of statements made by the deceased shortly before her death in which she expressed fear of the accused, the courtstated as follows (at para. 30): 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 afinding that the [accused] had a motive to kill [the deceased].

In that way, evidence of [the deceased’s] state of mind had an indirectconnection to the appellant’s state of mind.

[63] The connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationshipbetween the two; if a deceased and an accused are unknown to one another, this course of logic can find no application. That therelationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leadingup to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animusor intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31.

See also R. v. Lemky(1992), (BC CA), 17 B.C.A.C. 71, aff’d (SCC), [1996] 1 S.C.R. 757. This is not to say that adeceased’s state of mind alone is capable of proving motive.

Insofar as it affords evidence of the nature of the relationship between adeceased and an accused, however, a deceased’s state of mind is one piece of evidence that may be relevant to the issue of motive. [emphasis added] [35] In the present case, the Crown argues that Tina McAleer’s statements to Samantha Sanford and Laura Tingley that Calvin Lewishad threatened her falls within the exception and may be admitted for the truth of its content, i.e. that Calvin Lewis did, indeed, makethreats against Ms. McAleer, and that it has probative value going to whether Mr.

Lewis had animus or malice towards the victim andpotential motive for the killing, which is relevant to both the issue of intent required for murder and to whether the killing was plannedand deliberate. [36] The Crown also cites and relies on in R. v. Carroll, 2014 ONCA 2 ; leave to appeal denied at (SCC), a decision penned by Justice Watt. In that case, the accused was charged in the killings of his estranged wife and another man ata remote cabin.

One of the issues on appeal was the admissibility of statements made by the estranged wife to several witnesses aboutthe nature of her relationship with the accused and her fear of him. Justice Watt wrote: [99] The rule excluding hearsay is a well-established exception to the general rule or principle of the law of evidence that all relevantevidence is admissible: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2 and 34. When the hearsay objection ispertinent, we begin from a presumption of inadmissibility.

It falls to the proponent of the evidence to satisfy the trial judge that theproposed evidence satisfies the prerequisite of a listed exception or meets the twin criteria of necessity and reliability: Khelawon, atpara. 2. [100] The trial judge acts as a gate-keeper in determining whether hearsay, tendered for admission under a listed or the principledexception, qualifies for admission. Under the principled exception, the trial judge assesses the “threshold” reliability of the hearsaystatement.

The ultimate reliability, the ultimate determination of the worth of the statement as probative material, is for the trier of fact todetermine: Khelawon, at para. 2. The distinction between threshold and ultimate reliability is important and constitutes the differencebetween admissibility and reliance: Khelawon, at para. 3. [101] The central reason that accounts for the presumptive exclusion of hearsay statements is the general inability to test their reliability.

And so it is that under the principled exception the reliability requirement is aimed at identifying those cases where this difficulty issufficiently overcome to justify reception of the evidence as an exception to the general rule of exclusion: Khelawon, at para. 61. [102] The reliability threshold is usually met in two different ways: Khelawon, at para. 61. [103] One way[1] to satisfy the reliability requirement is to demonstrate that there is no real concern about the truth of this statementbecause of the circumstances in which the statement came about: Khelawon, at para. 62.

But the reliability inquiry is not limited to thecircumstances surrounding the making of the statement. In appropriate cases, it may extend beyond them and involve consideration ofconfirmatory evidence: Khelawon, at para. 4; R. v. Singh, 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34. The reliabilityrequirement involves the assessment of all relevant factors, not their subdivision into those that have to do only with either threshold orultimate reliability: Khelawon, at para. 4. [104] A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v.

Griffin, 2009 SCC 28, [2009] 2S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98. In a similar way, the state of the relationshipbetween an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive onthe 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: Griffin, at para. 61; Moo, at para. 98.

Statements of the deceased may afford evidence of the deceased’s state of mind and thus berelevant to prove a motive and animus: Griffin, at para. 61. [105] Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule asan 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 theapplication of a cost-benefit analysis: Khelawon, at para. 49; Moo, at para. 95; and R. v.

Mohan, (SCC), [1994] 2S.C.R. 9, at p. 14. [37] Justice Watt went on to consider whether the utterances had the hallmarks of reliability which underpin the exception: [108] The statements or remarks of Carolyn Carroll admitted in evidence through the testimony of those to whom she spokewere spontaneous disclosures, contemporaneous with the events reported, and, for the most part at least, contained sufficientdetail to permit a reasoned assessment of their probative worth by the trier of fact.

The circumstances in which they were madestamped them with sufficient reliability to warrant their admission. […] [111] Fourth, in large measure, the appellant’s complaints about the inadequate showing of reliability relate to ultimate rather thanthreshold reliability. As proponent of otherwise inadmissible hearsay, Crown counsel need not eliminate all possible sources ofdoubt about the perception, memory or sincerity of the declarant.

All that was required in this case was that the circumstancesin which the statements were made and any relevant extrinsic evidence provided the trier of fact with the means to criticallyevaluate the honesty and accuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, atpara. 50; R. v.

M.(J), 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54. [emphasis added] [38] The Crown submits that the statements purportedly made by Tina McAleer to her daughter and to her sister are spontaneousutterances made in natural circumstances and in the absence of suspicion, which therefore brings them within the criteria for admissionunder the “mental state” exception. The Crown argues that the statements are highly probative in that they provide context to therelationship between Calvin Lewis and Tina McAleer and because they demonstrate that Ms. McAleer was afraid of Mr. Lewis due tothreats he made towards her.

The evidence is probative of whether Mr. Lewis had animus or malice and motive to kill Ms. McAleer andwhether he had the necessary intention for murder. [39] In the alternative, the Crown argues that the evidence is nonetheless admissible under the principled approach to hearsayevidence, arguing that the statements were made under circumstances that provide a strong indicia of reliability. Of course, necessity ismade out given that Ms. McAleer is dead. The Crown cites and relies on another decision of Justice Watt in R. v. Moo, 2009 ONCA 645. In that case, the accused was charged with murdering his wife.

The Crown sought to lead evidence that the victim, in the timeleading to her death, had confided to clergy and to other friends that she and her husband had been arguing a lot and that he had assaultedher and had threatened to kill her if she ever left their marriage. Justice Watt, in upholding the trial judge’s decision to admit theevidence, wrote: [103] Although his ruling preceded the decisions in Khelawon, Couture and Blackman, the trial judge’s approach is faithful to theirmandate.

He examined the circumstances surrounding each statement to determine whether those circumstances provided sufficientcomfort in their truth and accuracy to warrant their admission. [104] The deceased’s statements to the two ministers of the church she attended were made for the purpose of obtainingadvice about how to resolve a family crisis. They, like the others, were spontaneous outpourings of the declarant, not answersgiven to leading questions or as a result of any improper influence by the recipient.

The statements were not made during or incontemplation of any legal proceedings and were confined by the trial judge to discussions within a reasonable time before thedeceased’s death. None were under oath or its equivalent nor recorded in whole or in part by the recipient. [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. [106] The deceased’s ante-mortem statements to others were relevant and material.

They tended to show the true nature ofthe relationship between the appellant and deceased, casting it in a different light than as described by the appellant. Thesestatements reveal animus and motive on the part of the appellant, thus bearing on the issue of whether his unlawful killing of thedeceased was murder or manslaughter. [emphasis added]

[ 40 ] The Crown argues that the circumstances of the present case likewise provide reasonable assurances that the statements attributed to Tina McAleer are of sufficient reliability to meet the test for threshold reliability. The Crown argues that she had no motive to lie to her daughter or to her sister; they argue that the statements were not made in the context of a legal proceeding and they were not elicited from Ms. McAleer by way of any prompting or leading questions. Ms. Sanford called Ms. McAleer to check on her safety. As for the call to Ms. Tingley, the Crown argues that Ms.

McAleer was afraid and that her call was made in a panic and was intended to elicit help, and so there are no reasons to doubt the truth of what was said. DEFENCE POSITION [ 41 ] The Defence opposes the admission of this hearsay evidence, arguing that it lacks the degree of reliability necessary for admission. [ 42 ] The Defence acknowledges the common law exception relating to “state of mind,” but argues that these utterances attributed to Ms.

McAleer do not fall squarely within the four corners of the exception and that, further, the evidence lacks the necessary safeguards that must be present in order for hearsay to be admitted under the principled approach. The Defence argues that the more recent pronouncements by the Supreme Court of Canada indicate that even in the case of common law exceptions, the twin pillars of necessity and reliability must be met in order for the out-of-court statement to be admissible.

This position has support from the authors of The Law of Evidence in Canada , supra, at pages 6 and 7: Multiple exceptions to the hearsay rule were created by the courts in circumstances where the declarant was dead or otherwise unavailable, and the statements were made in situations which by their nature provided some circumstantial guarantee of trustworthiness to them. The problem was that in some cases, there were other circumstances which did not strictly fit within an exception, and yet made the hearsay statement quite reliable.

In still others, although the facts may technically have fit within the preconditions of an exception, the statement nevertheless had questionable reliability. As stated by McLachlin CJC in R. v. Mapara [[2005] .C.J. No. 23]: Gradually, an exception emerged and became a fixed rule. Once fixed, however, the rule became rigid and could, in some cases, exclude evidence which should have been received having regard to the underlying criteria of necessity and reliability. It could also occasionally lead to the admission of evidence which should be excluded, judged by these criteria.

This in turn could impede the search for the truth or unfairly prejudice the accused person. Thus, courts are to address the hearsay dangers on a case-by-case basis and assess necessity and reliability contextually rather than looking at a hearsay statement strictly and exclusively through the prism of the exclusionary rule and numerous traditional exceptions. The Supreme Court in Starr and Mapara set up the following framework for considering the admissibility of hearsay evidence: (

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 it 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. The traditional exceptions still play a role but underlying this approach are the twin pillars of necessity and reliability. […] [ 43 ] In essence, while the traditional exceptions are presumptively in place, the Court cannot simply determine whether the criteria for the exception are strictly met and blindly admit the evidence without also considering necessity and reliability, just as the Court

cannot reject hearsay evidence which does not fit into an exception, but which meets the necessary indicia of reliability. [44] Principally, the Defence argues that the statements attributed to Ms. McAleer lack reliability because of evidence relating herdrug use. Recall that there is uncontroverted evidence that she had THC, amphetamine and methamphetamine in her system at the timeof her death, and Mr. Brady’s testimony was suggestive that Ms. McAleer and Mr.

Lewis did “drugs” every day – whether she tookspeed every day was challenged by the witness, and the other witnesses were not aware of harder drug use. [45] There is also Ms. McAleer’s affidavit sworn November 29, 2021, wherein she recanted from a previous allegation that Mr. Lewisthreatened her – the very threat that was apparently communicated to her daughter, Samantha Sanford, in September 2019.

She attributedher allegedly incorrect statement to police to lying and to the fact that she had been drinking and had taken drugs, includingmethamphetamine. [46] The Defence cites the more recent decision of the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35 , whereJustice Karakatsanis wrote the opinion for the majority. That case is one of the most recent pronouncements by the Supreme Court onthe application of the principled approach to hearsay, including the interplay between that approach and the longstanding common lawexceptions.

On behalf of the majority, Justice Karakatsanis wrote: [20] Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is oftendifficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannotobserve the declarant’s demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740, at p. 764).

Allowing a trier of fact to consider hearsay can thereforecompromise trial fairness and the trial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and thetrier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J.explains in R. v.

Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520: First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, therelevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionallymisleading manner; and finally, the declarant may have knowingly made a false assertion.

The opportunity to fully probe these potentialsources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.] [21] Given the dangers that hearsay evidence presents, “[t]he fear is that untested hearsay evidence may be afforded more weight thanit deserves” (Khelawon, at para. 35).

Therefore, while all relevant evidence is generally admissible, hearsay is presumptivelyinadmissible (Khelawon, at paras. 2-3). [22] However, some hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accuratefact finding” (Khelawon, at para. 2 (emphasis in original)). Thus, categorical exceptions to the rule excluding hearsay developed throughthe common law over time. These traditional exceptions are based on admitting types of hearsay statements that were considerednecessary and reliable, such as dying declarations (Khelawon, at para. 42; R. v.

Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para.20; J. H. Wigmore, Evidence in Trials at Common Law (2nd ed. 1923), vol. III, at p. 152). [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 necessityand threshold reliability are met on a balance of probabilities (Khelawon, at para. 47). [24] By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper.

She protectstrial fairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25). In criminal proceedings, the thresholdreliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to afair trial (Khelawon, at paras. 3 and 47).

Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, shehas discretion to exclude this evidence if its prejudicial effect outweighs its probative value (Khelawon, at para. 49). [emphasis added] [47] Distinguishing between threshold liability (which goes to admissibility) and ultimate reliability (which is the weight to be givento the evidence by the trier of fact), and citing its earlier decision in R. v.

Khelawon, 2006 SCC 57, the Supreme Court held that hearsayevidence can be admitted when it “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.” The Courtspecifically identified dangers related to the declarant’s “perception, memory, narration, or sincerity.”

[48] As specifically referred to by Justice Watt in Carroll, supra, two considerations or lines of inquiry have emerged to determinewhether those dangers are sufficiently mitigated: 1) a determination of procedural reliability; and 2) a determination of substantivereliability. [49] Procedural reliability involves substitutes for cross-examination of the declarant during the trial which provide a degree ofcomfort as to the truth of the utterances.

As noted by Justice Karakatsanis: “Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about theconsequences of lying […]” (paragraph 28). [50] Here, the declarations attributed to Ms. McAleer were not made under those types of circumstances, and so there are noprocedural safeguards in place in the present matter. [51] Justice Karakatsanis went on: [30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy(Youvarajah, at para. 30; R. v.

Smith, (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement isinherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates orconflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v.

Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55). [52] This notion of substantive reliability is what underpins the common law exceptions to hearsay – the idea that, due to the nature ofthe declarations and the circumstances under which they were made, there is an inherent reliability that is present and which satisfies thedangers commonly associated with hearsay.

As stated by the authors of The Law of Evidence in Canada, supra, at page 6, theexceptions apply to “statements [which] were made in situations which by their nature provided some circumstantial guarantee oftrustworthiness to them.” [53] As for the idea of a guarantee of trustworthiness, Justice Karakatsanis wrote: [31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee oftrustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930).

Rather, the trial judge must besatisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to theprocess” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’sjurisprudence.

Substantive reliability is established when the statement “is made under circumstances which substantially negate thepossibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical cautionwould look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is“unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whetherthe statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likelyexplanation is that the statement is true (U. (F.J.), at para. 40). [54] The exercise of determining threshold substantive reliability was explained by Justice Karakatsanis as follows: [48] In assessing substantive reliability, the trial judge must therefore identify alternative, even speculative, explanations for thehearsay statement (Smith, at pp. 936-37).

Corroborative evidence is of assistance in establishing substantive reliability if it shows thatthese alternative explanations are unavailable, if it “eliminate[s] the hypotheses that cause suspicion” (S. Akhtar, “Hearsay: The Denialof Confirmation” (2005), 26 C.R. (6th) 46, at p. 56 (emphasis deleted)). In contrast, corroborative evidence that is “equally consistent”with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), (SCC), [1996] 2 S.C.R. 291, at paras. 34-35).

Adding evidence that is supportive of the truth of the statement, but that is also consistentwith alternative explanations, does not add to the statement’s inherent trustworthiness. [49] While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is notsufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based onthe circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternativeexplanations on a balance of probabilities. [emphasis added]

ANALYSIS — THE SEPTEMBER 2019 UTTERANCES [55] As noted above, these utterances were purportedly made by Ms. McAleer to her daughter in the context of a fire at her residence. This is invariably the same circumstances which led Ms. McAleer to give a statement to police and which led to Mr. Lewis beingcharged with uttering threats. [56] The Crown argues that these utterances to Ms.

Sanford were spontaneous and were made in circumstances which provide thetraditional indicia of reliability which underpin the common law exception relating to “state of mind.” That is, they were not coaxedfrom her or the product of leading questioning and, as at that time, if would seem, there were no legal proceedings which might haveprovided a motive to Ms. McAleer. They were made contemporaneously and there is no obvious motive for Ms. McAleer to have beenuntruthful. In general, I agree that this is the kind of utterance that would usually meet threshold reliability. [57] The difficulty, however, is that Ms.

McAleer completely recanted or retracted those allegations of a threat and that she was afraidof Mr. Lewis in her affidavit of November 29, 2019. She stated under oath that her earlier reporting of a threat was false. She swore thathe never threatened her and that she was not afraid of him. [58] In light of that sworn evidence and appreciating that there may be a myriad of reasons why Ms. McAleer retracted thosecomments, the Court cannot ignore that they were, indeed, retracted. Also, the statement given by Ms. McAleer to police is not tenderedby the Crown as evidence on the trial.

Rather, it was tendered to provide context for the affidavit. The issue is the utterance purportedlymade to Samantha Sanford, and so while the utterance may have been spontaneous and may otherwise appear to meet the indicia ofreliability associated with such statements going to one’s state of mind, they cannot withstand the impact of the affidavit. [59] In these unusual circumstances, I am not satisfied that the statements purportedly made to Ms. Sanford in September 2019 aresufficiently reliable to meet the test of threshold reliability.

I am not convinced that, had she been available to be cross-examined on thepurported utterances that Tina McAleer would not have recanted, just as she did in her affidavit. [60] For those reasons, the September 2019 utterances described by Samantha Sanford are inadmissible and will not be considered bythis Court in the trial proper. ANALYSIS — THE APRIL UTTERANCES AT COOK’S CONVENIENCE [61] Again, Laura Tingley testified to being present for an argument between Ms. McAleer and the accused at Cook’s Conveniencestore / gas station in Hillsborough about one month prior to Ms. McAleer’s death. She described Ms.

McAleer standing outside hervehicle at the pump and stating, “He’s doing it again, he’s threatening me.” She also testified that she witnessed Mr. Lewis utter threatsto kill and beat Ms. McAleer. [62] It is worth restating that the purpose for which the Crown intends to introduce this evidence is to show the trier of fact the natureof the relationship between Ms. McAleer and the accused and to lead evidence which is probative as to any animus, motive or intent. Itmay also be probative as to whether the killing was planned and deliberate (see R. v.

Smeltzer, 2021 ONSC 4927 ). [63] The Defence argues that the evidence is not reliable due to Ms. McAleer’s drug use. [64] But before considering the reliability of those statements, the Court questions whether the evidence is necessary. Of course, Ms.McAleer cannot testify as to whether Mr. Lewis made those threats, and that is usually the basis for a claim of necessity. But Ms.Tingley testified that she was present and heard Mr. Lewis utter threats to kill and beat Ms. McAleer that day at Cook’s Conveniencestore.

The Defence has already conceded that that evidence – which comes from the very same witness – is admissible. So, whatadditional probative value do the hearsay utterances have? [65] In Watt’s Manual of Criminal Evidence, 2020 Edition, the author writes at page 447: Necessity implies that the reception of evidence untested by cross-examination is necessary, since otherwise the benefit of the evidenceto the determination of the litigation will be lost entirely.

[ 66 ] In this case, though, those utterances attributed to Tina McAleer do not provide the trier of fact with anything additional, in my view. All Ms. McAleer said was that Mr. Lewis was threatening her again. And Ms. Tingley testified that she then heard the threats. The utterances attributed to Ms. McAleer, if lost, do not deny the trier of fact the probative value of that evidence.

Those utterances therefore do not meet the first “pillar” relating to hearsay, i.e., necessity, since evidence of the same probative value from the same witness is admissible. [ 67 ] I should state that, had those utterances gone to whether Ms. McAleer was afraid, then my decision might well have been different. But the evidence is that Ms. McAleer stated, “He’s doing it again. He’s threatening me.” And evidence that Mr. Lewis made threats (which may or may not be ultimately relied upon by the Court on the trial proper) is already in evidence. [ 68 ] Those utterances are therefore inadmissible.

ANALYSIS — UTTERANCES MADE WITHIN DAYS OF MAY 2, 2020 [ 69 ] Laura Tingley testified that on the Tuesday prior to Tina McAleer’s death, she received a phone call from her sister. She said that Ms. McAleer was crying and panicked and that she told her that she and Mr. Lewis were fighting and that he had threatened to kill her. This prompted Ms. Tingley to send her nephew and her then-boyfriend to check on Ms. McAleer. [ 70 ] There is no genuine dispute that these utterances are necessary, in that the evidence cannot be introduced except through Ms.

Tingley. [ 71 ] The Defence argues that the utterance does not meet the test for threshold reliability because, again, there is evidence to suggest that Ms. McAleer was doing drugs at around the time of her death, and that her drug use raises suspicions as to the reliability of her perceptions, memories and sincerity, just as there were in relation to the September 2019 event.

The Defence argues that methamphetamine can result in the user experiencing drug-induced psychosis with the possibility of delusional thinking and hallucinations. [ 72 ] Of course, there is no expert evidence before the Court regarding the effects of drug consumption on Ms. McAleer. In fact, there is virtually no evidence as to the quantity of drugs she was consuming prior to her death, nor is the evidence surrounding the frequency with which she may have used methamphetamine established. Mr. Brady told police that Ms. McAleer and Mr.

Lewis were using “drugs” daily, but he testified that he had not seen her use methamphetamine. Nobody had seen her use methamphetamine, but the evidence clearly establishes that she did take that drug. [ 73 ] The Defence also relies on the affidavit from November 2019, in which Ms. McAleer swore that her statement to police was caused in part on her drug use and drinking at the time. But there is no evidence that Ms. McAleer’s drug use at the time of these utterances, sometime in late April, 2020, were in any way impacted by drug use.

Again, the only witness who testified about drug use by Tina McAleer other than marijuana was Mr. Brady, and he testified at trial that his reference that “They use it every day” was not intended to mean that Ms. McAleer used speed every day. [ 74 ] Effectively, the Defence is arguing that it is likely, on the balance of probabilities, that Ms. McAleer’s utterance to Ms. Tingley is unreliable due to her drug use; or that it is equally plausible that it is untrue.

They argue that the Court cannot be satisfied on a balance of probabilities that the utterance was truthful, and so the test for threshold reliability outlined by Justice Karakatsanis cannot be met. [ 75 ] I do not agree. I am of the view that the circumstances of the alleged call as described by Ms. Tingley – that her sister called her late at night, that she was crying and upset, that Mr. Lewis had made threats to kill her and that she asked for help – suggest that those utterances are, on the balance of probabilities, likely to be truthful.

They were made spontaneously and were contemporaneous to the events reported. They were intended to get help, and so I am satisfied that the utterance is likely to be truthful due to the indicia of substantive reliability. And I am not satisfied on the balance of probabilities that the alternative proposed by the Defence is met, i.e. that the utterances were likely the result of Ms. McAleer’s drug use. [ 76 ] The Defence argument that Ms. McAleer’s utterances that night were the product of her drug use is little more than a theory.

Not every individual who uses drugs, even methamphetamine, is going to have altered memory and perception to the point that they are incapable of giving reliable information.

[ 77 ] Of course, whether those statements were actually made and whether those statements are ultimately relied upon by the Court are not for this voir dire – those are issues of ultimate reliability for the trier of fact in the context of all the evidence at trial. [ 78 ] Threshold reliability is met, and the utterances attributed to Tina McAleer made to her sister Laura Tingley on the Tuesday before her death are admissible because they fall within the traditional exception related to her “state of mind” and because they are both necessary and reliable. [ 79 ] I am of the view that their probative value outweighs their prejudicial effect and that there is no reason for the court to rule them inadmissible in its gatekeeper function.

DISPOSITION [ 80 ] The utterances purported made by Tina McAleer to her daughter, Samantha Sanford, in September 2019 are not admissible; [ 81 ] The utterances purportedly made by Tina McAleer to her sister, Laura Tingley, outside the Cook’s Convenience store in Hillsborough, New Brunswick approximately one month prior to her death are inadmissible; and [ 82 ] The utterances purportedly made by Tina McAleer to her sister, Laura Tingley, on the Tuesday prior to her death are admissible and may be considered at trial.

DATED at Moncton, New Brunswick this 13 th day of May, 2022. _____________________________________ Robert M. Dysart, Judge of the Court of Queen's Bench of New Brunswick