HER MAJESTY THE QUEEN, – v. –, 2022 NBKB 258

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 258 MCR/13/2020 BETWEEN: HER MAJESTY THE QUEEN, – and – CALVIN ANDREW LEWIS DECISION ON VOIR DIRE # 5 – Admissibility of Hearsay Evidence BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: July 7, 2022 DATE OF DECISION: July 21, 2022 APPEARANCES: Malika Levesque & Annie St-Jacques, for the Crown Nathan Gorham, Q.C., 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 killedMs. McAleer in the apartment where they were living in Hillsborough, New Brunswick, on May 2, 2020. He admits that he stabbed herand 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] Mr. Lewis is being tried by judge alone. [3] Prior to closing its case, the Defence filed an Application, where Mr.

Lewis seeks to admit two pieces of evidence which amountto hearsay. These are: 1. An affidavit sworn by Ms. McAleer on November 29, 2019, some 5 months prior to her death; and 2. Excerpts from a KGB statement given by Shane Brady, son of the accused. Mr. Brady gave his statement to police on the morningof Ms. McAleer’s death, being May 2, 2020. Mr. Brady testified at trial but, during cross-examination, sought to distance himself fromwhat he told police, effectively altering his account related to drug use by Ms. McAleer prior to her death.

The Defence seeks tointroduce those excerpts for the truth of their content. [4] The Crown objects to the admission of the affidavit, arguing that it is neither relevant (and, hence, necessary) and that theaffidavit lacks the necessary reliability for admission under the principled approach. [5] The Crown does not object to the admission of the excerpts from Mr. Brady’s KGB statement, however, and so I will addressthat matter first, and in a somewhat

summary fashion. The KGB Statement of Shane Brady [6] As indicated, Mr. Brady met with police on the day of Ms. McAleer’s death. He gave a sworn, videotaped statement to OfficerPaynter, a police officer, commonly referred to as a “KGB statement,” taken from the decision by the Supreme Court of Canada, R. v. B.(K.G.), (SCC).

In that case, the Supreme Court altered the manner in which a prior inconsistent statement might beused at trial, broadening that use to include introducing the statement for the truth of its content and not merely in order to impeach thecredibility of the witness who has offered testimony on the stand that is different from the prior statement. [7] Writing for the majority, Chief Justice Lamer held that such a statement may be admitted for its truth where there are sufficientguarantees of reliability, e.g. (1) if the statement is made under oath, solemn affirmation or solemn declaration following an explicitwarning to the witness as to the existence of severe criminal sanctions for the making of a false statement; (2) if the statement isvideotaped in its entirety; and (3) if the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine thewitness at trial respecting the statement. [8] The excerpts which the Defence seeks to introduce for their truth are as follows: PAYNTER: Was there any drinking or- or drugs going on last night?

BRADY: Uh there's 30 (sic)

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. [ 9 ] 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) [ 10 ] During his cross-examination, Mr.

Brady contradicted what he told police, testifying that notwithstanding the use of the term “they,” he meant that the accused, Calvin Lewis, was using speed on a daily basis. He initially testified that he had never seen Ms. McAleer do drugs, but then acknowledged that she smoked pot, i.e. marijuana. He testified that, when he gave his KGB statement, he meant to say that Mr. Lewis took speed daily, while Ms. McAleer smoked pot daily.

[ 11 ] The Defence points out, however, that Ms. McAleer’s autopsy reveals that she was positive for amphetamine and methamphetamine, in addition to THC (the chemical agent in marijuana). Disposition regarding the KGB Statement [ 12 ] In the end, I am satisfied that there is an inconsistency between what Mr. Brady told police and his testimony at trial. The significance of that inconsistency – that is, its impact on Mr. Brady’s credibility and whether the KGB statement will ultimately be accepted as the truth – is a matter left for later. But I am satisfied that the excerpts from Mr.

Brady’s KGB statement are indeed admissible for their truth. [ 13 ] The pages containing those excerpts will therefore become Exhibit #4 at trial. The Affidavit of Tina McAleer, sworn on November 29, 2019 (the “Affidavit”) [ 14 ] The Defence seeks to admit the Affidavit, arguing that it has probative value with respect to a number of live issues in this trial, including: 1. Ms. McAleer’s drug use in the weeks prior to her death – the Defence says Ms. McAleer’s drug use is relevant because it goes to her behaviour on the morning of May 2, 2020 and the anticipated defence of provocation; 2.

Evidence led by the Crown relating to Mr. Lewis’ alleged animus towards Ms. McAleer – the Crown contends that Mr. Lewis threatened to kill Ms. McAleer and blamed her for his having been incarcerated on charges that he threatened her and assaulted her, and it is anticipated that that evidence will be used to establish animus, which can be relevant to whether Mr. Lewis had the necessary intent for murder and to whether the killing in this case was planned and deliberate; and 3. the credibility of the accused – during cross-examination, Mr. Lewis was asked about having pleaded guilty to uttering threats to kill Ms.

McAleer in September 2019 and to having assaulted her in 2020. He acknowledged pleading guilty but denied committing those acts. He testified that he only pleaded guilty as part of a plea agreement which allowed him to get out of jail on “time served,” rather than having to remain in detention awaiting his trial. [ 15 ] The evidence on the application with respect to the Affidavit included the Affidavit itself (VD#5, Exhibit #1) and a CD containing an audio recording of a statement given by Ms. McAleer to a police officer on September 27, 2019, the day following the alleged threat to Ms. McAleer (to which Mr.

Lewis pleaded guilty). [ 16 ] I will first summarize those two pieces of evidence, beginning with the statement to police (as it precedes the Affidavit chronologically and provides context). Recorded Statement of September 27, 2019 [ 17 ] The recording was made by the officer investigating a fire at Ms. McAleer’s residence at 645 Hillsborough Road in Riverview, New Brunswick. Ms.

McAleer describes that she rented a basement unit from the owner, “Mark” (who lived on the main level), and that her friend “Andrea” was the upstairs tenant. [ 18 ] The officer confirms that the statement, which was given at 8:48AM, was with respect to occurrence 2019-1476701, which was a house fire at that same address. Ms. McAleer apparently gave the statement while seated in the police cruiser. [ 19 ] The officer asks Ms. McAleer to explain what had occurred the previous evening. She says Calvin Lewis had come to her apartment for dinner. Mr.

Lewis, whom she describes as her boyfriend, was not living with her at that address. She reports that Mr. Lewis had come to believe that there were people watching him from inside the ceilings at her apartment. He believed that Ms. McAleer was somehow involved. [ 20 ] She tells police that, that evening, Mr. Lewis had threatened to slit her throat if she did not behave herself. They had not been arguing – she reported that she was folding laundry at the time. She says they did not need to be arguing about anything for Mr. Lewis to

make threats. [ 21 ] She tells the officer that she then left the apartment to buy gas for her car, as she thought she needed to pick up her son who had been fishing on a scallop boat in the Bay of Fundy. When she returned, she reports that Mr. Lewis once again threatened to slit her throat. He told her that he had plotted to kill her many times and that she was going to get herself killed from her own stupidity. [ 22 ] Ms. McAleer tells police that she decided to leave the residence. She went to Hillsborough to stay with family. She contacted her landlord, “Mark” by text to see how Mr. Lewis was doing.

He apparently reported that Mr. Lewis was outside, yelling and screaming. [ 23 ] When asked why she had not called police when Mr. Lewis threatened her, Ms. McAleer says that she had called the RCMP a couple of weeks earlier and that Mr. Lewis had kicked her door in before police arrived. When they did arrive, he gave them a false name. She says the police then released Mr. Lewis and told her she would need to go to court for a peace bond. She did not feel that would protect her. [ 24 ] Ms. McAleer also describes other threats and acts by Mr. Lewis, including stealing her car and breaking her wrist.

She tells police that, because she did not know Mr. Lewis’ whereabouts, she was worried that he would kill her. She describes playing “Russian roulette” for the past year. She describes him as being a “Jekyll and Hyde.” [ 25 ] Ms. McAleer’s voice sounded calm throughout the statement. Her thoughts appeared organized and there was nothing about her speech that would suggest any impairment, though it is difficult to arrive at such conclusions based solely on someone’s speech. The Affidavit [ 26 ] The Affidavit sets out the reasons for its preparation: Mr.

Lewis was charged with one count of uttering threats to kill Ms. McAleer on September 27, 2019; and with one count of uttering a threat to burn the real property of Mark Richard on September 27, 2019. Ms. McAleer, who was summoned by the Crown to testify at Mr.

Lewis’ trial scheduled for December 3, 2019, states in the Affidavit: “I make this affidavit out of necessity as I have attempted to contact the Moncton/Codiac R.C.M.P. at 1-506-857-2400 repeatedly (2-3 times a day) between September 27, 2019 and October 1, 2019 without anyone returning my call. … I wanted to provide the R.C.M.P. with a statement of exoneration for Calvin Lewis (hereinafter the (sic) “Calvin”), however it seems that no one wanted to hear my side of the story.” [ 27 ] Ms.

McAleer then goes on to state under oath that on the evening of September 26, 2019 (i.e. the night prior to her statement to police, and the evening on which she had said Mr. Lewis twice threatened to slit her throat) she had gone to visit a friend in Riverside Albert, New Brunswick. She states that she planned to stay the night, as she planned to drink and take drugs.

She states that between 7:00PM on September 26 th and 5:30AM on September 27 th , she consumed 6-9 light beer, 4-5 shots of hard liquor, a few joint of marijuana, 5-6 pills of methamphetamine and her prescription dose of Seraline (for depression). [ 28 ] Ms. McAleer states that she “fell off the wagon that night,” suggesting that it was not a typical night for her. She says that she passed out from 5:00AM to 5:30AM that morning. She then states that she received a call from Mark Richard, her landlord, sometime between 6:30AM and 6:40AM. He advised her that her home was on fire.

She states that she was initially “blurry” and that it took her a moment to realize what he was saying. [ 29 ] After the call, she got into her vehicle and drove towards her home in Riverview. [ 30 ] When she arrived, the home was “engulfed in flames,” she states. She sat in her vehicle for a period of time, “in shock,” before walking towards Mr. Richard. She states that she was panicked and started to cry.

[ 31 ] She states that she does not have any recollection of her discussions with anyone else until she was asked to speak with police. She recalls sitting in the police vehicle with a Cst. Wilson. She states that she was told that she had to give a statement to police. She then states: “I do not recall the exact words of the statement, however I do know that I lied to the RCMP and, instead of telling the truth, I simply repeated rumors and allegations that I had heard that day from, Bystanders, Police Officer (sic), Mark, Neighbors , etc.

The Police Officers never asked me about my state of mind, my consumption the night before or provide me with any assistance following my traumatic event. The RCMP did not replay my statement, did not get me to sign any forms or confirm any information that was asked of me.” [ 32 ] Ms. McAleer then goes on to state that, in fact, she had last spoken with Calvin Lewis at 4:00 PM on September 26, 2019, and that the conversation was “amicable”. She states that she had told Mr. Lewis that she was going to have a personal day, and that she was going out that evening. She says she has no knowledge as to where Mr.

Lewis went or what he did after 4:00 PM that day. She says the next time she saw Mr. Lewis was on October 1, 2019 at the courthouse. [ 33 ] Ms. McAleer then states: “I have been in a Relationship with Calvin since August 2018. Calvin has never Threatened to cause me death. Calvin has never uttered a Threat to burn my home or any property owned by Mark Richard. I have never been afraid of Calvin and he has never spoken, conveyed, uttered or in any way threatened me in general.” [ 34 ] The Affidavit completely contradicts Ms. McAleer’s statement to police. DEFENCE POSITION [ 35 ] Counsel for Mr.

Lewis argues the Affidavit should be admitted because, first and foremost, it is relevant, in that it has probative value with respect to live issues before the Court in this case. Firstly, the Defence argues that the Affidavit contains circumstantial evidence related to Ms. McAleer’s drug use, which goes to the reliability of certain statements attributed to Ms. McAleer in the days before her death (and which were deemed admissible hearsay on a previous voir dire). [ 36 ] Second, the Defence argues that it is relevant to certain of the evidence elicited by the Crown during the cross-examination of the accused.

Mr. Lewis was asked whether he had pleaded guilty in or about late March 2020 to charges of uttering a threat to kill Ms. McAleer in September 2019, and to assaulting her in January 2020. He acknowledged having pleaded guilty to those charges, but testified that he had not committed those acts, and only agreed to plead guilty as part of a plea agreement in order to get out of jail. He testified that by pleading guilty, he was able to get out of jail with “time served” as opposed to having to wait several more months for his trial. The Defence contends that Mr.

Lewis’ credibility is now in issue, and that he should be able to lead evidence which tends to support his testimony at trial that he did not threaten Ms. McAleer. [ 37 ] Third, the Defence argues that, because the Crown split its case, i.e. because it elicited this evidence of Mr. Lewis’ convictions

for uttering a threat and for assault during its cross-examination of the accused, it would be unfair for the Defence not to level the playing field, so-to-speak, by having a chance to explain Mr. Lewis’ evidence. This is based on the notion that the Crown will attempt to establish that Mr. Lewis had malice/animus towards Ms. McAleer, and hence had the necessary intent for murder in this case. It may also go to whether the killing was planning and deliberate, an essential element for first degree murder. The Defence argues Mr.

Lewis should be able to lead evidence which undermines that theory, and argues that the Affidavit clearly demonstrates that Mr. Lewis never threatened Ms. McAleer. [ 38 ] Counsel for the accused argues that many of the hallmarks of reliability are present with respect to the Affidavit – both procedural and substantive. For example, the Affidavit is written down (i.e. recorded) and it was sworn by Ms. McAleer for use in a legal proceeding. It therefore has strong procedural guarantees, counsel argues. [ 39 ] As well, the Defence argues that because Ms.

McAleer attributes what she told police to being under the influence of drugs and alcohol, the reason for the change in her story is fully explained, affording an additional degree of substantive reliability. CROWN POSITION [ 40 ] Firstly, and significantly, the Crown states that Mr. Lewis’ testimony regarding his convictions for uttering a threat and for assault is only relevant to his credibility. That is, the Crown states that its questioning of Mr. Lewis on his criminal convictions was done in accordance with

Section 12 of the Canada Evidence Act , and that his answers are only relevant to his credibility – in that he has been convicted of criminal offences in the past. 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 681, “Evidence of previous convictions admitted under s. 12 goes only to the accused’s credibility as a witness.” [ 41 ] The Crown expressly stated that it will not ask the Court to consider those convictions as evidence upon which the Court could make a finding of malice or animus towards Ms. McAleer.

The Crown expressly stated that it does not seek to rely on the underlying facts associated with those convictions as evidence which could support motive, intent for murder or that the killing was planned and deliberate. [ 42 ] That said, the Crown acknowledged that, by answering the question as he did, the accused exacerbated any impact on his credibility by denying that he actually threatened or assaulted Tian McAleer. But, argues the Crown, that is no different that any accused who might deny his or her guilt for a past conviction. [ 43 ] As for any relevance to Ms.

McAleer’s drug use at the time of her death, the Court noted during the hearing that there is already evidence of that drug use – testimony from the accused and toxicology evidence which confirms the presence of THC, amphetamine and methamphetamine in Ms. McAleer’s system at the time of her death. The Crown argues the Affidavit does nothing to supplement that evidence, as it was sworn more than 5 months before Tina McAleer’s death. [ 44 ] Ultimately, the Crown argues that the Affidavit is not sufficiently reliable to be admitted at trial.

The Crown maintains that the statement given to police on the morning of September 27, 2019, which is completely contrary to the content of the Affidavit, also has a number of hallmarks of reliability, including: the statement was recorded; it was given to a police officer in the context of a criminal investigation; the statement was given contemporaneously to the events in question; and the statement contains significant detail which relates to matters other than the events of September 26 and 27, 2019 which are corroborated by other evidence, giving it substantive reliability. [ 45 ] As for the reliability of the Affidavit, the Crown argues that Ms.

McAleer’s relationship with Mr. Lewis was, according to all the evidence in this matter, volatile and that Ms. McAleer was similar to other witnesses – typically women – who have recanted in the context of a claim of domestic abuse. The Crown cites, for example, R. v. Ginter , 2018 MBPC 52 and R. v. Brame, 2004 YKCA 13 . [ 46 ] Ultimately, the Crown argues that the police statement is at least as reliable as the Affidavit, and that it is impossible for the Court to conclude that Ms. McAleer, had she been alive to testify at trial in this matter, would not have adopted what she told police as being the truth.

That, in the end, is the crux of the Crown’s objection to the admission of the Affidavit – that it is no more credible than the police statement and so the reliability of the Affidavit does not meet the threshold for admissibility because one cannot say that Ms. McAleer, had she been cross-examined, might not have adopted what she told police. THE LAW

[47] The leading decision with respect to hearsay evidence remains the Supreme Court of Canada’s reasons in R. v. Bradshaw, 2017SCC 35 , where Justice Karakatsanis wrote the opinion for the majority. Outlining the concerns related to the admission ofhearsay, 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 cannot observethe 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 therefore compromise trial fairness and thetrial’s truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate thedeclarant’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. [48] She then went on to discuss the principled approach to hearsay evidence, as had been expressed in the Supreme Court’s earlierdecision of R. v. Khelawon, 2006 SCC 57: [23] Eventually, a more flexible approach to hearsay developed through the jurisprudence.

Under the principled exception, hearsaycan exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and thresholdreliability 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 protects trialfairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25).

In criminal proceedings, the threshold reliabilityanalysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused’s right to a fair trial(Khelawon, at paras. 3 and 47).

Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she hasdiscretion to exclude this evidence if its prejudicial effect outweighs its probative value (Khelawon, at para. 49). [49] 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 Khelawon, supra, the Supreme Court held that hearsay evidence canbe admitted when it “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.” The Court specificallyidentified dangers related to the declarant’s “perception, memory, narration, or sincerity.” [26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability.

Thresholdreliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”(Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarantbefore the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specifichearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, (SCC), [1996] 3 S.C.R. 1043, at para. 75).

The dangers relate to the difficulties of assessing the declarant’s perception,memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have beenovercome. [50] 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). [51] As for substantive reliability, the question is one of “inherent reliability.” That is, are the circumstances in which the hearsayevidence was made such that it is likely to be true? In assessing this second pillar of the principled approach, the Court may considerother evidence to see whether it corroborates or conflicts with the hearsay statement (see Bradshaw, paragraph 30).

[52] 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). […] [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 not sufficient.Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances andany evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.

ANALYSIS [53] As for the question of procedural reliability, there is little doubt that many of the usual procedural guarantees of trustworthinessare present with respect to the Affidavit. It is written, and so there is no doubt as to what was stated. Also, the Affidavit is swornevidence given in the context of an anticipated criminal trial. The affiant, Ms. McAleer, would therefore have appreciated theimportance of being truthful and the risk of perjuring herself. Those are traditionally strong indicators of reliability. [54] That said, the Affidavit directly contradicts Ms.

McAleer’s statement to police, which also enjoys certain traditional guarantees oftrustworthiness – the statement was recorded; it was given to police, in a police vehicle and in the context of a criminal investigation; inthe recorded statement, Ms. McAleer’s thoughts appear to be clear and organized, and she provides a significant amount of detail relatingto not only what transpired the evening prior, but also other information which is consistent with evidence that has been provided byother witnesses, e.g. evidence that Mr.

Lewis believed there were people watching him from the walls. [55] Also, while the Affidavit is corroborated by the accused’s testimony at trial that he did not commit the criminal acts to which hepleaded guilty, the police statement is corroborated by Mr. Lewis’ guilty plea to the charge of uttering a threat. That plea, which is moreconsistent with what Ms. McAleer told police than it is with what Ms.

McAleer swore to in the Affidavit, lends some additionalreliability to the police statement, especially where the plea was offered after the Affidavit had been sworn. [56] As per the directives of the Supreme Court in Bradshaw, supra, this Court should identify any specific dangers and anyalternative explanations for the hearsay statement and consider whether those alternatives are eliminated when assessed in the context ofthe whole of the evidence. In this case, the danger is that Ms. McAleer recanted from her statement to police because she wanted to helpMr.

Lewis, whom she had been dating for two years, avoid a conviction. That is, it would go to Ms. McAleer’s sincerity. That is thespecific hearsay danger with respect to the Affidavit. It is not unheard of for a girlfriend or wife to recant from an allegation of threats orassault against her spouse, as pointed out by the Crown. [57] In this case, Ms. McAleer’s statement to police is, in my view, just as reliable, just as reasonable and just as strongly supported bythe totality of the evidence as the Affidavit. It has numerous procedural and substantive guarantees.

It cannot be eliminated as analternative explanation, therefore, that Ms. McAleer’s statement to police was the truth, and that her Affidavit is fabricated.

[58] While the Affidavit contains a number of the traditional guarantees of reliability – both procedural and substantive – and while,were it examined in isolation, it would seem to meet the test for admissibility, it simply does not meet that threshold when the Courtconsiders the content of the police statement.

The Court is unable to say that the reliability of the Affidavit is higher than that of thepolice statement. [59] I am also of the view that the probative value of the Affidavit is now far more limited, given that the Crown has expressly statedthat it will not rely on the guilty plea to establish motive or animus in this case. The only probative value relates, arguably, to Ms.McAleer’s drug use and to Mr. Lewis’ credibility in relation to his answer on cross-examination with respect to his past convictions. [60] As for Ms.

McAleer’s drug use at around the time of her death, the Court already has evidence related to that drug use in the formof a toxicology report, as well as the evidence of the accused and now Mr. Brady’s KGB statement. What is the probative value to thetrier of fact in knowing that Ms. McAleer had “fallen off the wagon” and used methamphetamine some 7 months earlier? That timespanreduces its probative value. [61] As for Mr. Lewis’ credibility, Mr.

Lewis was asked on cross-examination whether he had, in fact, pleaded guilty in or about lateMarch 2020 to uttering a threat in September 2019, and to assault in January 2020. Rather than answering in the affirmative, he wentfurther and stated that he only pleaded guilty to get out of jail. That was his choice. But that answer was not prompted by the Crown’sline of questions; it was spontaneously made by the witness. [62] Counsel for Mr.

Lewis argues that his client’s denial of guilt, in the face of a guilty plea, has placed his credibility in jeopardyand that he should be entitled to lead evidence that tends to prove the truth of what he said on the stand – that he wasn’t guilty of utteringa threat. The Affidavit would tend to support that assertion. [63] But the Court queries whether this is permissible, or whether it effectively amounts to a collateral attack on Mr. Lewis’conviction – a conviction which is based on a guilty plea. [64] Yes, Mr.

Lewis’ denial of guilt for those offences goes to his credibility, because he now denies the actus reus to offences towhich he pleaded guilty. But is this Court to re-litigate Mr. Lewis’ guilty plea? Based on what evidence? His testimony and theAffidavit? Is it open to the Court to conclude, in these proceedings, that it has not been proven beyond a reasonable doubt that Mr. Lewisthreatened Ms.

McAleer? [65] The Crown is not relying on the guilty plea for the purpose of establishing any of the essential elements in this case, includingthe intent necessary for murder and whether the killing was planned and deliberate. The conviction is only relevant to Mr. Lewis’credibility as a witness in this trial. [66] In R. v.

Gardiner, (SCC), the Supreme Court of Canada (per Justice Dickson) stated: “It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offenceadmitted by the plea, and no more.” [67] Of course, that case dealt with how Courts are expected to go about establishing facts for use on sentencing where there has beenno trial. But the principle – that the accused is deemed to have admitted the essential elements of the offence to which he or she haspleaded guilty – has broader application. [68] In Wilson v.

The Queen, (SCC), Justice McIntyre wrote as follows: In the Manitoba Court of Appeal, Monnin J.A. said:

The record of a superior court is to be treated as absolute verity so long as it stands unreversed. I agree with that statement. It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds for such a proceeding exist. Without attempting a complete list, such grounds would include fraud or the discovery of new evidence. [ 69 ] Here, one of the purposes for which Mr.

Lewis seeks to admit the Affidavit is that it would seem to support the truthfulness of his testimony at trial, i.e. that he is not guilty of the offence to which he pleaded guilty. But is that not a collateral attack against the validity of the guilty plea? In my view, to allow the accused to try and prove his innocence of this prior conviction would equally suggest that the Crown should have led (or should now be entitled to lead) evidence at this murder trial in order to prove that Mr. Lewis is also guilty of uttering a threat nearly 4 years ago.

Surely that would be an unreasonable burden upon the Crown and would amount to an abuse of this Court’s process. Mr. Lewis is not on trial for threats nor for assault. He is charged with murder. He had a right to a trial on those other charges and he waived that trial by pleading guilty, relieving the Crown from having to prove the essential elements of those offences. It would be nonsensical, in my view, were the Crown required to prove them in this case. [ 70 ] Ultimately, I am of the view that the Affidavit is not sufficiently reliable to be admitted at trial.

I do not think the issue of “collateral attack” needs to be resolved, as in my view, even if the accused’s purpose is not a violation of the collateral attack rule, or contrary to public policy and the principle of finality, the Affidavit does not have the necessary degree of threshold reliability to be admissible at trial. DISPOSITION [ 71 ] The accused’s Application to admit the Affidavit into evidence at trial is dismissed. DATED at Moncton, New Brunswick this 21 st day of July, 2022. _____________________________________ Robert M. Dysart, Judge of the Court of Queen's Bench of New Brunswick