R. v. Sparks and Ritch, 2020 NSSC 116

SUPREME COURT OF Nova Scotia Citation: R. v. Sparks and Ritch , 2020 NSSC 116 Date: 20200406 Docket: Halifax , No. CRH 482163 Registry: Halifax Between: Her Majesty the Queen v. Samanda Rose Ritch and Calvin Joel Malcolm Sparks Decision: Voir Dire 9 Crown Application: Seeking Admission of Ante Mortem Hearsay Judge: The Honourable Justice Christa M.

Brothers Heard: November 27, 2019, in Halifax, Nova Scotia Oral Decision: November 28, 2019, in Halifax, Nova Scotia Final Written: April 6, 2020, in Halifax Nova Scotia Counsel: Robert Kennedy and Steven Degen, for the Crown Peter Planetta and Hanna Garson, for Samanda Ritch Malcolm Jeffcock, Q.C. and Alexander McKinnon, for Calvin Sparks By the Court: Overview [ 1 ] On November 27, 2019, the Crown sought to admit ante mortem hearsay statements allegedly made by the deceased, Nadia Gonzales, on the day of her death, June 17, 2017.

I heard evidence on the voir dire and received oral and written submissions from counsel. In order to proceed with the matter expeditiously, I concluded that the ante mortem hearsay statements were inadmissible. I reached a bottom-line decision in keeping with R. v. Jordan , 2016 SCC 27 and R. v. Cody , 2017 SCC 13 and advised counsel I would be providing my written reasons. These are those reasons.

Background [ 2 ] The court scheduled the week of October 7, 2019, to hear voir dires in relation to several issues which included the Crown’s application for an advance ruling in relation to the admission of the deceased’s ante mortem hearsay statements. The Crown chose to abandon that voir dire despite Mr. Sparks advancing a third-party suspect defence. After 17 days of trial, after the Crown had called the majority of its witnesses, the Crown indicated it would be resuming this application seeking the admission of the ante mortem hearsay statements.

The Crown said this was necessitated by the cumulative effect of evidence from witnesses concerning third party suspects and the evidence that Ms. Gonzales feared or had worry in relation to certain individuals. Evidence [ 3 ] Mr. Nathan Austin provided viva voce evidence during this voir dire . The first time he met Nadia Gonzales was on June 16, 2017, after 7:08 p.m. Mr. Austin spent between two to three minutes with Ms. Gonzales purchasing drugs. Prior to that meeting, where the sole purpose was for Mr. Austin to purchase drugs, he had neither conversed in person with Ms.

Gonzales, nor met her beforehand. [ 4 ] The Crown wished to introduce three utterances Ms. Gonzales purportedly made while briefly in Mr. Austin’s car, whilst performing a drug transaction. They wished to admit this evidence, arguing it is proof that Ms. Gonzales was fearful of the accused, Calvin Sparks. In addition, the Crown wished to introduce text messages Mr. Austin engaged in with Ms. Gonzales on June 16, 2017. This was at a time when Mr. Austin did not even know it was Ms. Gonzales he was conversing with. Again, the text would be offered by the Crown as some evidence of Ms. Gonzales’ fear of Mr. Sparks.

[ 5 ] The utterances the Crown wishes to admit are the following: • Is Calvin setting me up? • Is he here? • He’s out to get me. [ 6 ] The texts the Crown seeks to admit are the following: 965 SMS Messages Incoming 2017-06-16 4:14:32 PM(UTC-3) From: +19022975135 Boy DA Nathan White Hey u with cj?

Source Extraction: Logical 968 SMS Messages Outgoing 2017-06-16 4:15:04 PM(UTC-3) To: (902) 297-5135 Boy DA Nathan White Lol quite the question there…CJ is plotting against me because he couldn’t take my business over lol Source Extraction: Logical 993 SMS Messages Outgoing 2017-06-16 4:20:55 PM (UTC-3) To: (902) 297-5135 Boy DA Nathan White But u can call me if u need cuz it was mine in the first place lol he was just pretending it was his shit Source Extraction: Logical 994 SMS Messages Outgoing 2017-06-16 4:21:13 PM (UTC-3) To: (902) 297-5135 Boy DA Nathan White Jane is the one with the bomb not CJ lol Source Extraction: Logical 1103 SMS Messages Incoming 2017-06-16 5:25:04 PM (UTC-3) From: +9022975135 Boy DA Nathan White Oh ok I need to meet up Source Extraction: Logical 1105 SMS Messages Outgoing 2017-06-16 5:25:37 PM (UTC-3) To: (902) 297-5135 Boy DA Nathan White I hope he not tryna use u to set me up… Source Extraction: Logical [ 7 ] Nathan Austin testified on this voir dire .

He is currently working as a mechanic and met the accused, Calvin Sparks, while enrolled in an automotive course at the NSCC, Akerley campus. They were friendly acquaintances for a short period of time in 2017. On occasion, Mr. Austin would purchase drugs from Mr. Sparks. [ 8 ] On the day of her death, Mr. Austin had contact with Ms. Gonzales initially by phone. He did not know her prior to June 16, 2017 but had a belief she was associated with Mr. Sparks in the sale of drugs. [ 9 ] Mr. Austin sent a text to a number which was associated with Ms. Gonzales on the day of her death. At the time, Mr.

Austin did not know who he was texting. His intention was to purchase cocaine and he was texting the number to set up a purchase. Mr. Austin testified to using that number before and obtaining the number from Mr. Sparks. [ 10 ] Through texts a meeting was arranged for the purchase of drugs. Mr. Austin met Ms. Gonzales after 7:08 p.m. on June 16, 2017, at a gas station next to Tim Horton’s on Robie Street. When Ms. Gonzales arrived in a Chevy pick-up truck with two other men, she exited her car and got into Mr. Austin’s car in the front passenger seat. [ 11 ] Mr. Austin testified that upon entering his car, Ms.

Gonzales was very frantic. She entered the car and started saying “… is Calvin setting me up, does he know I’m here, and he’s out to get me”. Mr. Austin said he did not know what she was referring to and he was there only for some cocaine. [ 12 ] Mr. Austin described Ms. Gonzales as very nervous. He testified: “When she got in his car, she just couldn’t stop talking”. Mr. Austin testified that all of these questions and statements “just flowed right out of her mouth”. He described her as being very nervous and she was starting to make him a little bit nervous. Mr.

Austin testified that upon entering his car, he did not have a chance to speak to Ms. Gonzales as she started talking immediately and was blurting out things about Mr. Sparks setting her up. [ 13 ] Having just met Ms. Gonzales the evening of June 16, 2017, Mr. Austin had no understanding of how she normally talks, acts or her facial expressions. [ 14 ] Mr. Austin did not make any notes of his meeting with Ms. Gonzales on June 16, 2017. He only met with her in person for two to three minutes.

Position of the Parties [15] The Crown say these utterances and the texts are not hearsay but admissible as an exception to the hearsay rule falling under thestate of mind exception. The Crown says if this argument is not accepted then the material is admissible as a principled exception to thehearsay rule. [16] The Crown argues that the evidence from Mr. Austin supports a stated fear of the accused, Calvin Sparks, close in time to herdeath. The Crown argues that the utterances to Mr. Austin fall within a recognized exception to the hearsay rule.

Secondly, if the Courtdoes not accept that argument, the Crown argues that the texts and utterances made are a principled exception to the hearsay rule. TheCrown argues that necessity is made out because the declarant, Ms. Gonzales is deceased. With regards to reliability, the statements arespontaneous and relate to her alleged present fear of the accused, Calvin Sparks. [17] In addition, the Crown argues the statements were made within a reasonable time before the deceased’s death.

The Crownargues that without the ante mortem hearsay being admitted the jury will be left without a clear picture of the relationship between Ms.Gonzales and Calvin Sparks in the time leading up to her death. The Crown argues that the evidence is probative as it is relevant to theissue of animus and motive which is relevant to the issue of identification. The utterances and texts are close in proximity to Ms.Gonzales’ death and provide a clearer picture of the relationship between Ms. Gonzales and Calvin Sparks close to her death. [18] The defence argues against the admission of the evidence.

First, the defence argues that the Crown, previously taking theposition that it was abandoning the pursuit of the admission of the ante mortem statements of Ms. Gonzales in advance of trial, is notpermitted now, in the fourth week of trial, to seek its admission. Secondly, given the late nature of this motion, the defence argues theaccused’s fair trial rights are in jeopardy.

If the ruling on this voir dire was given in advance of trial, the defence would have elicitedevidence from an expert in toxicology in relation to the paranoia that can flow from cocaine use and relate it to the state of mind of thedeceased who had cocaine in her system at the time of her death. At this point, the defence does not have the time to present suchevidence. [19] The defence argues that the utterances do not meet the present intention/state of mind exception to the hearsay rule. Lastly, thedefence says a remedy is to instruct the jury to disregard Mr. Bruce’s testimony of Ms.

Gonzales’ fear of Frankie Tynes, as this evidencewas the basis of the Crown’s application. [20] The defence argues this material neither falls within a stated exception and does not meet the test of necessity and reliability tobe admitted under the principled exception. Preliminary Issue [21] The defence argues the Crown should be estopped from raising this issue now, at this point in the trial, close to the end of theCrown’s case.

The defence argues allowing this evidence would affect trial fairness as cross-examination of many witnesses hasconcluded and other evidence, such as a toxicology opinion may have been called if the motion was made in a timely fashion. [22] In response, the Crown indicates that because of the way the evidence has developed, the Crown is now entitled to raise thisissue in response to the defence’s approach to and the evidence concerning third-party suspects. [23] In R. v. C(I), 2010 ONSC 32 (Ont. Sup. Ct. J.), the court discussed when the Crown can change its trial strategy.

The courtnoted for there to be an abuse of process the onus of demonstrating an abuse of process is on an accused, on a balance of probabilities (R.v. Mack, (SCC), [1988] 2 S.C.R. 903 (S.C.C.)). [24] While there are times the Crown will not be permitted to change its position when the defence has reasonably relied on thatposition, this is not such a case. Absence some quid pro quo, agreement or an undertaking that the Crown intends to be bound by, theCrown is entitled to change its strategy as the evidence unfolds. As stated in R. v. Jolievt, 2000 SCC 29 , 2000 S.C.C. 29: 21.

This is the stuff of everyday trial tactics and hardly rises to the level of an “oblique motive”. Crown counsel is entitled to have atrial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. Where anelement of prejudice results (as it did here), remedial action is appropriate. [25] Crown counsel can change its trial strategy unless prejudice would arise. Crown counsel clearly has broad discretion as to themanner in which they conduct their case.

The defence in this case did not raise any argument of an oblique motive but did raise the issueof prejudice. [26] I do not accept the defence’s argument that the Crown is estopped from raising these issues in this voir dire at this point in thetrial. It is not a question of whether the Crown is estopped from doing so but whether upon an assessment and an analysis, the accused’sright to a fair trial is jeopardized or affected thereby requiring this court to deny the application. In R. v.

Moo, 2009 ONCA 645, theCourt looked at the issue of trial fairness as a factor influencing the ultimate decision on admissibility. Consequently, the Court is notdetermining this voir dire based on the timing in which the Crown chose to bring the motion but, based on the substantive evidence andarguments advanced by counsel. State of Mind Exception [27] The first question is if there is a traditional exception to the hearsay rule. The Crown has the burden on a balance ofprobabilities. The Crown says the evidence is admissible and goes to the issue of identification and motive.

The Crown argues thatthese utterances and statements were made in a natural manner and not under the circumstances of suspicion. The Crown argues that thefact the relationship between Ms. Gonzales and Mr. Sparks was acrimonious and they were engaging in a dispute in the time leading upto Ms. Gonzales’ death is highly relevant to motive. Motive and animus are relevant to identity.

[ 28 ] The Crown also argued that these statements are relevant to rebut the defence or the suggestion by the defence that someone other than the accuseds’ killed Ms. Gonzales. [ 29 ] The Crown relies on the decision of Arnold, J. in R. v. Butcher , 2018 NSSC 74 , for the admission of Ms. Gonzales’ texts and oral utterances to Mr. Austin on the day of her death. Butcher specifically related to ante mortem hearsay statements being adduced in relation to a domestic homicide. In addition, the Crown relies on R. v.

Moo , supra which also relates to the admission of evidence as an exception to the hearsay rule in the context of a domestic homicide. [ 30 ] The law governing admissibility includes R. v. Starr , 2000 SCC 40 , where Iacobucci stated as follows: 153 The law of hearsay in Canada and throughout the common law world has long been governed by a strict exclusionary rule relaxed by a complex array of exceptions. Recently, as noted in Smith, supra, at p. 932, this Court has moved in a new direction by adopting a principled approach to hearsay “governed by the principles which underlie the rule and its exceptions alike”.

According to this approach, hearsay evidence may be admissible, notwithstanding the inapplicability of the categorical exceptions on the facts of the case, provided the criteria of necessity and reliability set out in Khan are met. 154 The majority in the Court of Appeal below was of the view that hearsay evidence should be admissible either where the evidence falls within a traditional hearsay exception, or where the evidence is admissible using the principled approach developed in Khan and Smith.

Twaddle J.A., dissenting, held that the principled approach must prevail in determining hearsay admissibility, and that the fact that the evidence in the particular case fell within a traditional hearsay exception was insufficient standing alone to determine its admissibility. 155 My approach in these reasons is as follows. First of all, and with respect for the contrary view, I am of the opinion that the Court of Appeal erred in finding that Cook’s statement to Giesbrecht fit within the present intentions exception to the hearsay rule.

I reach this conclusion for two reasons: the statement was made under circumstances of suspicion, and it was used to prove the intentions of someone other than the declarant. Having so concluded, it is necessary to ask whether the statement was admissible under the principled approach, as enunciated in Khan, supra, and Smith, supra. I conclude that it was not, much for the same reasons that it does not fall within the present intentions exception. Answering this question also raises issues respecting the interaction between the principled approach and the existing exceptions.

I conclude that in the event of a conflict between the two, it is the principled approach that must prevail. The governing principles for hearsay admissibility must be reliability and necessity. [ 31 ] In Starr , supra , the majority commented on the present intention exception as follows: 168 The Crown argued that the “state of mind” or “present intentions” exception to the hearsay rule applied to render Cook’s statement to Giesbrecht admissible.

This exception was most recently discussed in detail by this Court in Smith, supra, where it was recognized that an “exception to the hearsay rule arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made” (p. 925).

Wigmore has argued that the present intentions exception also includes a requirement that a statement “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion”: Wigmore on Evidence, vol. 6 (Chadbourn rev. 1976), at § 1725, p. 129 (emphasis in original). L’Heureux-Dubé J., at para. 63 of her reasons, denies that Wigmore’s suggestion has ever been adopted in our jurisprudence.

As I will discuss below, regardless of whether the present intentions requirement ever had such a requirement, the principled approach demands that it must have it now.

I will therefore examine the admissibility of Cook’s statement under the present intentions exception in light of that understanding. 169 In Smith, Lamer C.J. explained that the exception as it has developed in Canada permits the admission into evidence of statements of intent or of other mental states for the truth of their contents and also, in the case of statements of intention in particular, to support an inference that the declarant followed through on the intended course of action, provided it is reasonable on the evidence for the trier of fact to infer that the declarant did so.

At the same time, there are certain inferences that may not permissibly be drawn from hearsay evidence of the out-of-court declarant’s intentions.

On this point, Lamer C.J. cited with approval (at p. 927) from the judgment of Doherty J. in P. (R.), supra, at pp. 343-44, where the case law was summarized as follows: The evidence is not, however, admissible to show the state of mind of persons other than the deceased (unless they were aware of the statements), or to show that persons other than the deceased acted in accordance with the deceased’s stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person.

The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred. [ 32 ] In R. v. Griffin , 2009 SCC 28 , Charron, J. reviewed the state of mind exception to the hearsay rule: [59] In the case before us, however, the statement at issue was not admitted to prove the state of mind or intentions of a third party. No one questioned at trial, or in the court below, that the inference that Poirier feared Griffin could be drawn from the former’s statement to Williams.

The statement was tendered and admitted for the truth of the fact that Poirier himself feared Griffin, a purpose that does not exceed the scope of the “state of mind” exception to the hearsay rule. As this Court stated in Starr, declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion (para. 168). In the present case, there was no argument that the statement was made under circumstances of suspicion.

Poirier’s fear of Griffin was a relevant fact — it was relevant to motive and, in turn to the issue of identification. Although a declarant’s hearsay statement cannot constitute proof of a third party’s state of mind, this does not mean that the declarant’s state of mind can have no bearing on other issues in the case. I will explain. [60] As stated earlier, the sole issue at trial was the identity of Poirier’s killer.

Although Poirier’s state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased’s mental state may be relevant to the question of an accused’s motive. As Doherty J. explained in the oft approved judgment in P. (R.), at p. 339: . . . the deceased’s mental state may bear no direct relevance to the ultimate issue of identification but it will none the less be relevant to that issue if it is relevant to another fact (e.g., motive) which is directly relevant to the ultimate issue of identification.

In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence 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 beenrecognized as probative of the issue of motive. For example, in R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, identity was thecrucial issue at trial.

The trial judge admitted statements made by the deceased expressing fear of the accused on the basis that suchstatements were probative of the issues of “malice, motive, [and] state of mind” (para. 104) which in turn were relevant to identity. TheNova 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), 6C.R. (6th) 201, where the court considered the relationship between a deceased’s state of mind and the issue of motive. Upholding thetrial judge’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 relationship betweenthe two; if a deceased and an accused are unknown to one another, this course of logic can find no application.

That the relationshipbetween a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder arehighly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act againstthe victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), (BCCA), 17 B.C.A.C. 71, aff’d (SCC), [1996] 1 S.C.R. 757. This is not to say that a deceased’s state of mind alone iscapable of proving motive.

Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, adeceased’s state of mind is one piece of evidence that may be relevant to the issue of motive. [33] The analysis by Watt, J.A. in R. v. Carroll, 2014 ONCA 2, is of assistance. [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 theultimate 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] 2 S.C.R.9, at p.14. … [107] To begin, recall the context in which the statements were made. Carolyn Carroll had abandoned her marriage to the appellant.She left their home. She continued, more openly, a relationship she had begun with Tony Comeau as the Carrolls’ marriage began tounravel. The appellant was well aware of this new relationship and he did not like it.

He was angry and jealous. [108] The statements or remarks of Carolyn Carroll admitted in evidence through the testimony of those to whom she spoke werespontaneous disclosures, contemporaneous with the events reported, and, for the most part at least, contained sufficient detail to permit areasoned assessment of their probative worth by the trier of fact.

The circumstances in which they were made stamped them withsufficient reliability to warrant their admission. [109] Second, as noted above, it is well established that evidence of a deceased’s state of mind, as disclosed by his or her utterancesprior to death, may be relevant to an accused’s motive or animus towards the deceased: Griffin, at para. 60; Moo, at para. 98. And inturn, evidence of motive or animus is relevant to the identity of the deceased’s killer and the state of mind with which the deceased waskilled: Griffin, at paras. 61-63; R. v.

Pasqualino, 2008 ONCA 554, 223 C.C.C. (3d) 319, at para. 31; Moo, at para. 98. In this case,evidence of Page: 33 the appellant’s motive or animus was also relevant to rebut defence suggestions that someone else, a third party,killed the deceased or that Tony Comeau, not Carolyn Carroll, was the killer’s primary target. [110] Third, the statements of the deceased admitted here, as reported by the recipients at trial, were at once spontaneous andcontemporaneous with the events that were their genesis.

While not always expansive or brimming with the minutiae of a disintegratingrelationship, the statements provided sufficient detail to permit a properly instructed jury to assess their worth. [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 of doubtabout the perception, memory or sincerity of the declarant.

All that was required in this case was that the circumstances in which thestatements were made and any relevant extrinsic evidence provided the trier of fact with the means to critically evaluate the honesty andaccuracy of the declarant: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 56; Khelawon, at para. 50; R. v. M.(J), 2010ONCA 117, 251 C.C.C. (3d) 325, at para. 54.

[112] Finally, the decision said to be wrong involved two findings made by the trial judge. The first was that the circumstances inwhich the statement was Page: 34 made, supported by extrinsic evidence, satisfied the reliability requirement under the principledexception to the hearsay rule. The second involved the application of a cost-benefit analysis and a determination that the probative valueof the admissible hearsay exceeded its prejudicial effect. In the absence of demonstrated error, both decisions are entitled to substantialdeference at one remove in this court: R. v.

Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 81 and 132; Blackman, at para. 36;Moo, at para. 101; and R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 61. No error has been demonstrated here. [34] With regards to the exception referred to as state of mind or present intention of the deceased, I must consider if the statementswere made naturally and not under circumstances of suspicion. [35] I accept the evidence of Mr. Austin who testified in a forthright manner despite having to admit to drug use and purchasingcocaine. He testified that Ms.

Gonzales made comments and asked questions that were not prompted by him but arose immediately uponher entering his car and meeting him for the first time. Nothing elicited the oral statements or the statements in the text messages. Mr.Austin was a passive recipient of those oral utterances. [36] In R. v. Griffin, supra, the deceased said to his girlfriend that “if anything happens to me, it’s your cousin’s family”.

R. v.Griffin was not in the context of a domestic homicide but nevertheless the evidence was admitted as an exception to the hearsay rule. [63] The connection between a deceased’s state of mind and that of an accused arises by virtue of a pre-existing relationship betweenthe two; if a deceased and accused are unknown to one another, this course of logic can find no application.

That the relationshipbetween a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder arehighly relevant to the issue of motive because such information m ay afford evidence of the accused’s animus or intention to act againstthe victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), (BCCA), 17 B.C.A.C. 71, aff’d (SCC), [1996] 1 S.C.R. 757. This is not to say that a deceased’s state of mind alone iscapable of proving motive.

Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, adeceased’s state of mind is one piece of evidence that may be relevant to the issue of motive. [64] In the instant appeal, Poirier’s fearful state of mind is probative of the nature of the relationship between he and Griffin in thetime period immediately preceding the murder. The two were known to one another prior to the murder and had engage d in drug-relatedtransactions resulting in a sizeable debt owed to Griffin by Poirier.

Poirier sensed that Griffin’s animus towards him was increasingthroughout January 2003 and it is apparent that he acted accordingly: Poirier refused to meet with Griffin, he went into hiding at theClarion Hotel, and, by way of the statement now at issue before this Court, he told his girlfriend that he believed that Griffin intendedhim harm. All of these facts make it more likely that Griffin had the motive ascribe d to him by the Crown than would otherwise be thecase.

Indeed, quite apart from this statement, the evidence that Griffin had a motive to harm Poirier was overwhelming. [65] In addition to its broad relevance as one piece of a large puzzle of circumstantial evidence going to proof of motive, Poirier’sstate of mind took on an elevated importance in light of the defence argument advanced in this case. In admitting the impugnedstatement, the trial judge correctly observed that Poirier’s particularized fear of Griffin was evidence that tended to rebut the defenceproposition that someone other than Griffin might have had a motive to kill Poirier in January 2003.

While Poirier’s fear of Griffin wasnot conclusive on this issue, the evidence was highly relevant to the question of identity. That Poirier was driven into hiding and wasfearful for his safety in the weeks preceding his death because of his fear of Griffin, and not because of his fear of someone else assuggested by the defence, could be properly considered as one piece of circumstantial evidence refuting the defence theory that someoneother than Griffin may have killed Poirier. [37] In Griffin, the statements were neither equivocal nor ambiguous.

It was a statement made by the deceased to an individual whoknew him well, his girlfriend. It was direct. [38] The statements in the other cases are not ambiguous, they are assertions which describe clearly a state of mind. Here we havetexts and utterances which do not give a clear picture of the deceased’s state of mind. [39] It is clear such statements as those being sought to be introduced in this matter can not be introduced as evidence of the state ofmind of a third party.

Here the Crown is not seeking such admission but seeking to admit the evidence as evidence of motive and animuswhich the Crown argues relates to the identity of Ms. Gonzales’ killer. However, the content of the utterances and texts as well as whois reporting them is not clear evidence as to Ms. Gonzales’ state of mind. The use of the statements as evidence of animus between Mr.Sparks and Ms. Gonzales and then to the identity of her killer is a stretch. This is so particularly when the assertions are ambiguous andcould be about a plan to steal or usurp her drug business by setting her up to be arrested.

These texts and utterances were in suspiciouscircumstances, that is during and before a drug deal with a stranger. In addition, unlike R. v. Carroll, supra, the contents of the texts andutterances did not contain sufficient detail to permit a reasoned assessment of the probative value of the evidence by the trier of fact. Principled Exception Analysis [40] In engaging in the analysis, I am mindful that hearsay evidence is presumptively inadmissible. The declarant can not be testedthrough cross-examination to assess reliability and the declarant’s demeanor can not be assessed.

There are four concerns: thedeclarant’s perception, memory, narration and sincerity (R. v. Starr, supra). In R. v. Baldree 2013 SCC 35, the court commented onthese dangers as follows: First, the declarant may have been 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. [41] The Crown is seeking the admissibility of the statements for their assumed veracity. In assessing whether the evidence is

admissible under the principled exception rule, consideration of threshold reliability is necessary. Do the statements have sufficientindicia of reliability? Ultimate reliability is for the trier of fact. In particular, the discussion of Karkatsanis, J. in R. v. Bradshaw, 2017SCC 35 in paragraphs 39-41 are instructive: [39] The distinction between threshold and ultimate reliability, while “a source of confusion”, is crucial (Khelawon, at para. 50).Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3).

When thresholdreliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess thetrustworthiness of the hearsay statement. However, they do so for different purposes (Khelawon, at paras. 3 and 50). In assessingultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on todecide issues in the case (Khelawon, at para. 50; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36).

Thisdetermination is made “in the context of the entirety of the evidence” including evidence that corroborates the accused’s guilt or thedeclarant’s overall credibility (Khelawon, at para. 3). [40] In contrast, in assessing threshold reliability, the trial judge’s preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process (Khelawon, at para. 49; see also H. Stewart, “Khelawon:The Principled Approach to Hearsay Revisited” (2008), 12 Can. Crim. L.R. 95, at p. 106).

At the threshold stage, the trial judge mustdecide on the availability of competing explanations (substantive reliability) and whether the trier of fact will be in a position to choosebetween them by means of adequate substitutes for contemporaneous cross-examination (procedural reliability).

For this reason, whereprocedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability isconcerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations forthe statement, other than the declarant’s truthfulness or accuracy. [41] In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter ofdegree, because the trial judge’s inquiry serves a distinct purpose.

In assessing substantive reliability, the trial judge does not usurp thetrier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. [42] In addition, in Bradshaw the following comments in relation to threshold reliability are of assistance: [47] Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances toovercome the specific hearsay dangers raised by the tendered statement.

When assessing the admissibility of hearsay evidence, “thescope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiaryquestion of admissibility” (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability,corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon,at para. 107; Smith, at p. 937).

Corroborative evidence does so if its combined effect, when considered in the circumstances of the case,shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the materialaspects of the statement (see U. (F.J.), at para. 40).

Otherwise, alternative explanations for the statement that could have been elicited orprobed through cross-examination, and the hearsay dangers, persist. [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 on thecircumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on abalance of probabilities. [50] To be relied on for the purpose of rejecting alternative hypotheses for the statement, corroborative evidence must itself betrustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry (see Khelawon, atpara. 108).

Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence(see Lacelle, at p. 390). [43] The implied assertion that Ms. Gonzales was fearful of Mr. Sparks within an hour of her death is untested by cross-examination. There is no way to test this evidence. The comments of Justice Charron in R. v. Khelawon, 2006 SCC 57, demonstrates thevalue placed on live in-court testimony: 55 This part of the analysis in Starr therefore requires clarification and, in some respects, reconsideration.

I will explain how therelevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold or ultimatereliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of thestatement and the available means, if any, of overcoming them.

I will then return to the impugned passage in Starr, dealing morespecifically with the question of supporting evidence since that reference appears to have raised the most controversy. [44] With regards to the principled exception as the vehicle for admission, I am directed to consider alternative and even speculativeexplanations to the hearsay evidence. • Ms. Gonzales was under the influence of a substance and this had an impact on her sincerity. • In the time of sending texts to Mr. Austin she sent a text to Mike referring to “CJ friend” which contradicts Mr. Austin’s

evidence about her statements. • She was testing a new customer to see if he was trustworthy • She was not being truthful when she was texting or speaking to Mr. Austin • Not knowing her prior to a brief meeting in a car in a parking lot with the sole purpose of purchasing drugs, he wasmistaken about her demeanor and statements. [45] On the balance of probabilities, I find the criteria of necessity is made out. Ms. Gonzales died on June 16, 2017. The realquestion is reliability. To be admissible, hearsay evidence must demonstrate reliability – that is – threshold reliability before theevidence will be admitted.

I am cognizant of the direction that necessity and reliability can not be considered in isolation. [46] The reliability must be such that it overcomes hearsay dangers inherent in not being able to test the evidence at trial thoughcross examination. What are the circumstances in which the statements were made and do those circumstances provide a sufficientsurrogate for testing reliability (R. v. Khelawon, supra)? [47] In R. v.

Moo, supra, the court reviewed the consideration of necessity and reliability: [93] It should scarcely surprise that the principled approach to the exceptional admission of hearsay disavows any closed list offactors to be applied to determine whether the circumstances in which a hearsay statement came about meet the reliability requirement inan individual case.

While the inquiry in circumstances like those here has as its primary focus, the circumstances surrounding themaking of the statement, its borders are not so restrictive: Khelawon, at para. 100. [94] In the end, the inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules. In eachcase, the focus of the inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and onthose attributes or circumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v.

Blackman, 2008SCC 37 , [2008] 2 S.C.R. 298, at para. 54. [95] Satisfaction of the necessity and reliability requirements of the principled approach to hearsay removes the hearsay rule as abarrier to admissibility but does not guarantee that the hearsay statements will be admitted. Trial fairness may encompass factors beyondthe narrow inquiry into necessity and reliability mandated by the principled approach to the admissibility of hearsay.

Despite satisfactionof these two Page: 32 criteria, a trial judge has a discretion to exclude otherwise admissible hearsay evidence where its probative value isoutweighed by its prejudicial effect: Khelawon, at para. 49. [48] The circumstances in which Ms. Gonzales’ statements were made, and texts were authored do not provide sufficient alternativesfor the testing of reliability through cross examination. They were made in the circumstances of a drug deal with an unknown customerwho had never met her prior to the evening of June 16, 2017, just a short time before her death. Mr.

Austin could not speak to Ms.Gonzales’ demeanor and certainly had no context in which to evaluate the information he was receiving. Unlike other cases, Ms.Gonzales was not confiding in a spiritual advisor or a partner about how she felt, or her fear as was the case in R. v. Moo, supra, and R. v.Griffin, supra. [49] Here we have texts and statements which are ambiguous. The accused setting up Ms. Gonzales could relate to setting her up tobe caught by the police, which would not be probative at all in relation to the identity of the individual(

s) who killed her. This is analternative explanation for the statements under a Bradshaw analysis. Here the deceased is going to sell drugs to an individual (Mr.Austin) who she has never met and does not know at all. There is a plausible alternative explanation that she was suspicious of this newperson and thinking that the accused was setting her up for the police to arrest her. [50] When considering the statements “CJ’s setting me up”, “CJ’s out to get me”, there is another explanation which is that there isa concern “CJ” is providing information to the police about the drug business Ms.

Gonzales is involved in. [51] Consequently, threshold reliability is not met. In addition, Mr. Patterson spent a good portion of June 16, 2017 with Ms.Gonzales. At no time did he give any evidence of her being nervous or frantic about Mr. Sparks. [52] The evidence up to this point in the trial was that Ms. Gonzales had accused Mr. Sparks of being a “rat”, that is providinginformation to police. These accusations were mutual as there was some evidence that Mr. Sparks had accused Ms. Gonzales of this aswell.

In that context, it is not surprising that a person would be nervous about meeting a new “customer” who got in touch on theaccused’s phone and there being worry that perhaps it was a set up in relation to the police. [53] The statements of Ms. Gonzales are relevant and material, but threshold reliability has not been made out. The concern is thatthe declarant may have meant something different, may not believe what they are saying, or she may be mistaken or insincere. It is notwhether Mr. Austin’s is the best evidence but whether this is the best form.

Texts and a brief, less than five-minute conversation with astranger, in these circumstances is not enough. Prejudicial Effect versus Probative Value [54] The texts and the utterances are probative of the relationship between the deceased and the accused, Mr. Sparks. Whether theirrelationship was acrimonious is relevant. [55] However, their cumulative prejudicial effect outweighs their probative value. This circumstantial evidence is prejudicial andnot so probative as to overcome the prejudicial effect.

Again, the concern is that the declarant may have meant a number of things, shemay not believe what she is saying, or she may be mistaken or insincere. The evidence from Mr. Austin consists of a few texts and abrief, less than five minutes, conversation. A conversation with a stranger which is not enough in these circumstances.

[ 56 ] In addition, there is prejudice in the timing of this voir dire relative to the Crown being close to closing its case. This is so in light of the Crown’s decision to abandon this voir dire on October 7, 2019, when the court had previously set time aside that week for this very voir dire. In addition, there is the corollary inability of the defence to call evidence now to rebut some of the inferences the Crown will be seeking the jury to accept regarding this evidence.

The defence argues that the description of the deceased being frantic and nervous could equally be consistent with someone who is consuming cocaine and who is experiencing one of the effects of cocaine, that being paranoia. The defence argues they are prejudiced because they do not have any expert evidence developed to respond to this evidence at this late time. I agree this adds to the prejudice in this case. Conclusion The impugned texts and out of court statements must be excluded.

They fall within no traditional exception to the hearsay rule and lack the indicia of reliability, which must be present to render the statements admissible. In addition, the prejudicial effect of the evidence and the timing of its admission outweighs its probative value. Brothers, J.