R. v. Starr

R. v. Starr
Collection
Supreme Court Judgments
Date
2000-09-29
Neutral citation
2000 SCC 40
Report
[2000] 2 SCR 144
Case number
26514
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 26514
Decision Content
R. v. Starr, [2000] 2 S.C.R. 144
Robert Dennis Starr Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General for
Ontario and the Attorney General of British Columbia Interveners
Indexed as: R. v. Starr
Neutral citation: 2000 SCC 40.
File No.: 26514.
Hearing: December 3, 1998.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
Rehearing: February 24, 2000; September 29, 2000.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for manitoba
Criminal law -- Evidence -- Hearsay -- Admissibility -- Present intentions exception -- Accused convicted of first degree murder -- Trial judge admitting statement of intention made by deceased -- Whether statement admissible under “present intentions” exception to hearsay rule -- Whether statement admissible under principled approach to hearsay admissibility -- Whether exceptions to hearsay rule must conform to principled approach to hearsay admissibility -- Whether hearsay that fits within traditional exception may still be inadmissible if it is not sufficiently reliable and necessary.
Criminal law -- Evidence -- Hearsay -- Admissibility -- Prior identification exception -- Accused convicted of first degree murder -- Trial judge admitting police officers’ testimony regarding out‑of‑court identification by witness -- Witness not testifying at trial that she had made out‑of‑court identification -- Whether police evidence admissible under traditional exception to hearsay rule -- Whether police evidence admissible under principled approach to hearsay admissibility.
Criminal law -- Charge to jury -- Reasonable doubt -- Accused convicted of first degree murder -- Whether trial judge explained concept of reasonable doubt to jury in adequate manner.
The accused was convicted of two counts of first degree murder. He had been accused of shooting C and W by the side of a highway. C and W had been drinking with the accused in a hotel. Outside, C and W offered a couple a ride home in W’s station wagon. W drove, and the group first stopped at an adjacent gas station, where G, a sometime girlfriend of C, approached the station wagon and had a conversation with C. During the conversation, G observed a car beside the gas station, and saw the accused in the car. She became angry with C because he was out with W rather than her, and she walked away from the car. C got out of the car and followed her into a laneway, where they had a further conversation. G asked C why he would not come home with her. According to G, C replied that he had to “go and do an Autopac scam with Robert”. She understood “Robert” to be the accused. A day or two later, G saw a picture in the newspaper of what she believed was the car in which she had seen the accused. The car had been found at the scene of the murder. She phoned the police and told them she had seen the car on the night of the murders at the gas station, with the accused in it. The Crown’s theory was that the killing was a gang‑related execution perpetrated by the accused. W was an unfortunate witness who was killed simply because she was in the wrong place at the wrong time. The theory was that the accused had used an Autopac scam as a pretext to get C out into the countryside. The trial judge found that G’s anticipated testimony regarding the scam was admissible under the “present intentions” or “state of mind” exception to the hearsay rule.
Two police officers visited the couple who had been given a ride. One of the officers testified that the wife, B, had told them that she had seen a man talking to C at the gas station. The officer testified that B indicated that the man in one of the photographs she was shown looked like the man whom she had seen at the gas station talking to C and who was also “probably driving the other car”. The photograph was a photo of the accused. Following a voir dire the trial judge ruled that the officers’ anticipated testimony was admissible pursuant to the prior identification exception to the hearsay rule, notwithstanding the fact that B had not testified at trial as to having seen a man talking to C at the gas station, or as to having identified that man in one of the photographs presented to her by the police.
The Court of Appeal, in a majority decision, upheld the convictions. At issue here is whether the court erred in affirming the trial judge’s decision to admit G’s testimony regarding a statement of intention made by the deceased C, in affirming the trial judge’s decision to admit the testimony of the police officers regarding B’s out‑of‑court identification and in finding that the trial judge had explained the concept of reasonable doubt to the jury in an adequate manner.
Held (McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be allowed and a new trial ordered.
Per Iacobucci, Major, Binnie, Arbour and LeBel JJ.: Since C’s out‑of‑court statement to G that he had to “go and do an Autopac scam with Robert”, meaning the accused, is sought to be adduced in order to prove the truth of its contents, G’s testimony regarding C’s statement to her is hearsay and would generally be inadmissible as such. The “state of mind” or “present intentions” exception to the hearsay rule 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. A statement of intention cannot be admitted to prove the intentions of someone other than the declarant, unless a hearsay exception can be established for each level of hearsay. The trial judge erred in admitting C’s statement to G under the present intentions exception and, having admitted it, in not limiting its use by the jury. The statement contained no indicia of reliability since it was made under circumstances of suspicion. C may have had a motive to lie in order to make it seem that he was not romantically involved with W, and could easily point to the accused, who was sitting nearby in a car but out of earshot, as being the person with whom he was going to do an Autopac scam. Moreover, the trial judge failed to instruct the jury that the statement was only admissible as evidence regarding the intentions of C, not the accused. It is well‑established that when a piece of evidence may conceivably be put to both proper and improper uses, the trial judge in a criminal case must give the jury a limiting instruction regarding the permissible inferences that may be drawn from the evidence. In this case the trial judge did not instruct the jury on the proper uses of C’s statement; in fact, he did the opposite by expressly inviting the jury to use the evidence to infer the accused’s intentions. In so doing, he clearly committed an error of law warranting reversal. Finally, when properly limited, the evidence was more prejudicial than probative. The trial judge erred by not considering whether the prejudicial effect of the prohibited use of the evidence overbears its probative value on the permitted use. The impermissible inferences that the jury might well have drawn from C’s statement are that the accused was in the car that followed C, that the accused was alone in the car (since C referred only to the accused), and that the accused went with C as part of a plan to lure C to a secluded area and kill him. The prejudicial effect of the admission of C’s statement outweighed the statement’s probative value. The statement ought to have been excluded on this basis as well.
In Khan, Smith, and subsequent cases, this Court allowed the admission of hearsay not fitting within an established exception where it was sufficiently reliable and necessary to address the traditional hearsay dangers. This concern for reliability and necessity should be no less present when the hearsay is sought to be introduced under an established exception. This is particularly true in the criminal context given the fundamental principle of justice, protected by the Canadian Charter of Rights and Freedoms , that the innocent must not be convicted. It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception. In addition to improving trial fairness, bringing the hearsay exceptions into line with the principled approach will also improve the intellectual coherence of the law of hearsay. To the extent that the various exceptions may conflict with the requirements of a principled analysis, it is the principled analysis that should prevail. It is nevertheless important for a court to exercise a certain degree of caution when reconsidering the traditional exceptions, which continue to play an important role under the principled approach. In some rare cases, it may be possible under the particular circumstances of a case for evidence clearly falling within an otherwise valid exception nonetheless not to meet the principled approach’s requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, these cases will no doubt be unusual, and the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voir dire or otherwise) to determine admissibility under the principled approach’s requirements of reasonable necessity and reliability.
C’s statement to G was also inadmissible under the principled approach. Since it was made under “circumstances of suspicion”, the statement was not reliable. Nor are there any other circumstantial guarantees of trustworthiness that could render the statement reliable. Having found that the statement is unreliable, it is unnecessary to go on to ask whether it was necessary or not. Since it does not fall under an existing exception either, the courts below erred in admitting this evidence. There was no serious argument that the error was one that could be saved by the curative proviso.
The trial judge erred in admitting the police evidence regarding B’s out‑of‑court identification under a traditional exception to the hearsay rule. Under the “prior identification” exception, prior statements identifying or describing the accused are admissible where the identifying witness identifies the accused at trial, or where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. These requirements are not satisfied in the circumstances of this case. Since B did not identify the accused in court, only the second branch of the exception could possibly be applicable. However, B did not testify that she could not remember whether the accused was the person whom she identified. She was not asked to compare the accused with her recollections about the person she saw on the night of the murders. Accordingly, the underlying circumstances of necessity required to trigger the second branch of the traditional exception did not exist. Moreover, the police evidence went far beyond the scope of the “prior identification” exception. The officers’ testimony went beyond simply asserting that B had identified the accused, and provided almost the entirety of the narrative underlying the identification. The police testimony was equally inadmissible under the principled approach. The testimony was not necessary, since B was a witness at trial and could have provided first‑hand evidence, had the Crown chosen to question her on the point. Furthermore, there are strong indications that B’s identification was unreliable. The trial judge’s cautionary instruction to the jury was insufficient to remedy the harm caused by the admission of the evidence.
The reasonable doubt instruction given in this case falls prey to many of the same difficulties outlined in Lifchus, and likely misled the jury as to the content of the criminal standard of proof. The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the accused’s guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words “reasonable doubt” have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no “special connotation” and “no magic meaning that is peculiar to the law”. By asserting that absolute certainty was not required, and then linking the standard of proof to the “ordinary everyday” meaning of the words “reasonable doubt”, the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof. The trial judge did refer to the Crown’s onus and to the presumption of innocence, and he stated that the accused should receive the benefit of any reasonable doubt. The error in the charge is that the jury was not told how a reasonable doubt is to be defined. As was emphasized repeatedly in Lifchus and again in Bisson, a jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials. In this case the jury was not told that something more than probability was required in order to convict, and nearly all of the instructions they were given weakened the content of the reasonable doubt standard in such a manner as to suggest that probability was indeed the requisite standard of proof. The reasonable likelihood that the jury applied the wrong standard of proof raises a realistic possibility that the accused’s convictions constitute a miscarriage of justice.
Per L’Heureux‑Dubé and Gonthier JJ. (dissenting): The following framework of analysis should be adopted for hearsay statements. First, it must be determined whether the statement is hearsay. Second, the trial judge should determine whether the hearsay statement falls within an established exception to the hearsay rule. Third, if the evidence does not fall within an established exception, the trial judge should determine whether it would still be admissible under the principled approach. Fourth, the trial judge maintains the limited residual discretion to exclude evidence where the risk of undue prejudice substantially exceeds the evidence’s probative value. Finally, once the statements are found admissible, it is for the trier of fact to weigh the evidence and make a determination as to the ultimate reliability of the hearsay evidence at issue. The case‑by‑case application of the principled approach to statements falling within accepted exceptions to the rule against hearsay should not be countenanced. Individual cases may illuminate or illustrate the need to modify a particular traditional exception, but every piece of evidence that falls within a traditional exception should not be subjected to the principled approach and the concomitant voir dire that it may entail.
While it is the duty of the courts to review common law rules, this duty carries with it a corresponding responsibility to proceed prudently. The usurpation of the traditional hearsay exceptions by the principled approach is not warranted under the current state of our law. Our jurisprudence has recognized the need to relax the hearsay rule to keep it in step with our changing society, specifically our greater appreciation of jurors’ abilities. However, the existing common law exceptions should be retained. The principled necessity‑reliability analysis, while appropriate where hearsay evidence does not fall within an established exception to the hearsay rule, has not replaced and should not supplant the traditional exceptions to the hearsay rule.
The traditional exceptions are built upon a determination that a threshold of reliability is met in particular instances of hearsay statements. Reliability under the principled approach is similarly restricted to a threshold inquiry. In re‑evaluating a hearsay exception, the court must ask whether some reason exists to doubt that the rationale underlying the exception applies in certain circumstances. The scope of this inquiry is restricted; the court should not consider every possible permutation of indicators of reliability or unreliability. The only time a court should entertain a challenge to an existing exception is where there are facts, generally applicable to a class of persons, which weaken the theoretical justification for the exception. While in principle the trial judge’s residual discretion to exclude admissible evidence where its prejudicial effect substantially outweighs its probative value could, in appropriate circumstances, apply to evidence falling within an exception to the hearsay rule, this point was not addressed in the Court of Appeal and was not argued before this Court.
Since the Crown sought to use C’s statement to G as proof of the truth of its contents, it is hearsay. The statement falls squarely within the “present intentions” exception to the hearsay rule. 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. A requirement that the statement must appear to have been made in a natural manner and not under circumstances of suspicion should not be added. While statements of intention may be admissible despite the fact that they refer to a joint act, the “present intentions” exception may not be used to infer that a third party acted in accordance with the declarant’s stated intention. The trial judge did not err in leaving C’s statement of intention to the jury. Properly cautioned by the trial judge, juries are perfectly capable of determining what weight ought to be attached to such evidence, and of drawing reasonable inferences therefrom. The Crown did not ask the jury to draw an impermissible inference, and the trial judge did not err in instructing the jury on this issue.
With respect to B’s out‑of‑court identification, while the trial judge may have committed an error by allowing the police officers to testify as to the out‑of‑court identification, any harm that such evidence may have caused was effectively negated by the trial judge’s instructions to the jury. The harm caused by the introduction of the evidence was minimal given other testimony that placed the accused at the gas station before the murders. B’s statement that “he was probably driving the other car” could not have suggested that B identified the accused in the town where the murders took place, rather than at the gas station. Given the trial judge’s admonition to the jury and the accused’s admission of the marginal role that the identification evidence played, there is no reasonable possibility that the verdict would have been different if the alleged error had not been made.
While trial judges are now expected to follow the Lifchus model charge, failure to do so in cases tried before Lifchus does not constitute reversible error if the charge conveys to the jury the special meaning attached to reasonable doubt. Despite not having the benefit of this Court’s decision in Lifchus, the trial judge included most of the suggested elements in his charge to the jury. The charge instructed the jurors that a reasonable doubt must not be an imaginary or frivolous doubt; that it is a doubt based upon reason and common sense; that it must be based on the evidence that the jurors heard in the courtroom; and that the Crown is not required to prove its case to absolute certainty. The trial judge’s charge was not flawless, in that the trial judge erroneously stated that the words “reasonable doubt” are used in their everyday, ordinary sense and have no special legal meaning. The verdict ought not to be disturbed, however, because the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply. The charge communicated clearly to the jury that they could not find the accused guilty on a balance of probabilities. Moreover, the charge made it clear to them that the standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and that this burden never shifts to the accused. In light of the trial judge’s compliance with the bulk of the principles enunciated in Lifchus, the charge was not automatically vitiated by the failure to include a specific item mentioned in Lifchus or by the inclusion of an improper item.
Per McLachlin C.J. and Bastarache J. (dissenting): L’Heureux‑Dubé J.’s reasons on the issues of B’s out‑of‑court identification and the charge to the jury on reasonable doubt were agreed with, as were her findings that the victim C’s statement that he intended to do an Autopac scam with the accused later the night of the murder was admissible and that the trial judge’s charge to the jury adequately warned them of the dangers associated with this evidence.
The following principles govern the admissibility of hearsay evidence: (1) Hearsay evidence is admissible if it falls under an exception to the hearsay rule; (2) The exceptions can be interpreted and reviewed as required to conform to the values of necessity and reliability that justify exceptions to the hearsay rule; (3) Where the evidence is admissible under an exception to the hearsay rule, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value; (4) Where evidence is not admissible under an exception to the hearsay rule, the judge may admit it provided that necessity and reliability are established. C’s statement that he intended to do an Autopac scam with the accused later that night is a statement of present intention. Statements of present intention presented for the truth of their contents (i.e., to permit inferences as to what the person in fact did) are admissible, provided they were not made in circumstances of suspicion. There were no circumstances of suspicion here that precluded the trial judge from admitting C’s statement that he was doing an Autopac scam with the accused later that night. The statement should accordingly be admitted as evidence of what the deceased intended to do at the time he made the statement. While a statement of joint intention cannot support an inference as to the state of mind of the third party, in some circumstances it can be fairly considered along with other evidence in deciding what the third party did. C’s statement may thus be viewed as one piece of circumstantial evidence supporting the inference that the accused was with C later that night. It may be that where the only source of inference as to the third party’s conduct is the statement of joint intention, it would be unsafe to permit the jury to rely on it for that purpose. When this occurs, the jury should be so directed. This was not such a case; the statement was merely one of a matrix of circumstances that the jury could consider in determining whether the accused met C later that night as C stated was their common intention. Accordingly, the trial judge was not required to tell the jury that they could not consider the statement on the question of what the accused in fact did. While a more complete warning as to the danger of drawing inferences on actual conduct from statements of joint intention would have been preferable, the trial judge’s instruction to the jury that it was “for [them] to decide whether the evidence of [C’s] statement about the scam goes as far as the Crown would have [them] believe” could have left the jury in no doubt that they must not facilely jump from C’s statement to the conclusion that C and the accused actually met later that evening. The matter was fairly put to the jury and no new trial is required on this ground.
Cases Cited
By Iacobucci J.
Applied: R. v. Lifchus, [1997] 3 S.C.R. 320; referred to: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334; R. v. Tat (1997), 117 C.C.C. (3d) 481; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Sharp, [1988] 1 W.L.R. 7; Giles v. United States, 432 A.2d 739 (1981); United States v. Brown, 490 F.2d 758 (1973); People v. Madson, 638 P.2d 18 (1981); Shepard v. United States, 290 U.S. 96 (1933); R. v. Carter, [1982] 1 S.C.R. 938; R. v. D. (L.E.), [1989] 2 S.C.R. 111, rev’g (1987), 20 B.C.L.R. (2d) 384; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Kelly (1999), 213 N.B.R. (2d) 1; R. v. R. (D.) (1995), 98 C.C.C. (3d) 353; R. v. Grand‑Pierre (1998), 124 C.C.C. (3d) 236; R. v. Bisson (1997), 114 C.C.C. (3d) 154; R. v. Chahley (1992), 72 C.C.C. (3d) 193; Wepruk (Guardian ad litem of) v. McMillan Estate (1993), 77 B.C.L.R. (2d) 273; R. v. Crossley (1997), 117 C.C.C. (3d) 533; R. v. Collins (1997), 118 C.C.C. (3d) 514; R. v. Warner (1994), 94 C.C.C. (3d) 540; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Mills, [1999] 3 S.C.R. 668; R. v. L. (J.W.) (1994), 94 C.C.C. (3d) 263; R. v. Tam (1995), 100 C.C.C. (3d) 196; R. v. Rose (1998), 108 B.C.A.C. 221; R. v. C. (B.) (1993), 12 O.R. (3d) 608; Idaho v. Wright, 497 U.S. 805 (1990); R. v. Bisson, [1998] 1 S.C.R. 306; R. v. W. (D.), [1991] 1 S.C.R. 742.
By L’Heureux‑Dubé J. (dissenting)
R. v. Khan, [1990] 2 S.C.R. 531; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Seaboyer, [1991] 2 S.C.R. 577; Ares v. Venner, [1970] S.C.R. 608; Myers v. Director of Public Prosecutions, [1965] A.C. 1001; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Terry, [1996] 2 S.C.R. 207; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Chahley (1992), 72 C.C.C. (3d) 193; R. v. Collins (1997), 118 C.C.C. (3d) 514; R. v. McKenzie (1986), 32 C.C.C. (3d) 527; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334; R. v. Moore (1984), 15 C.C.C. (3d) 541, leave to appeal refused, [1985] 1 S.C.R. x; M. (L.N.) v. Green (1995), 14 B.C.L.R. (3d) 194; Neufeld v. Child and Family Services of Winnipeg (1993), 89 Man. R. (2d) 150; R. v. Jack (1992), 70 C.C.C. (3d) 67; R. v. McLeod (1991), 6 B.C.A.C. 223; R. v. Miller (1991), 5 O.R. (3d) 678; R. v. Carriere (1986), 40 Man. R. (2d) 150; R. v. Baron von Lindberg (1977), 66 B.C.L.R. 277; R. v. Flemming (1980), 43 N.S.R. (2d) 249; R. v. Jackson (1980), 57 C.C.C. (2d) 154; Hildebrand v. Butler (1979), 11 B.C.L.R. 234; R. v. Strongquil (1978), 43 C.C.C. (2d) 232; R. v. Baltzer (1974), 10 N.S.R. (2d) 561; R. v. Bencardino (1973), 2 O.R. (2d) 351; Re Grant Estate, [1971] 1 W.W.R. 555; Great West Uranium Mines Ltd. v. Rock Hill Uranium Ltd., [1955] 4 D.L.R. 307; Gray v. New Augarita Porcupine Mines Ltd., [1952] 3 D.L.R. 1; R. v. Wysochan (1930), 54 C.C.C. 172; R. v. Covlin, [1923] 3 W.W.R. 555; R. v. Ferry (1992), 18 C.R. (4th) 221; Re J.B. (1998), 166 Nfld. & P.E.I.R. 1; Collins v. Collins (1993), 114 Nfld. & P.E.I.R. 215; R. v. Mafi (1998), 21 C.R. (5th) 139; Home v. Corbeil, [1955] 4 D.L.R. 750; Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892); United States v. Pheaster, 544 F.2d 353 (1976); People v. Alcalde, 148 P.2d 627 (1944); R. v. Bisson, [1998] 1 S.C.R. 306; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Tombran (2000), 47 O.R. (3d) 182.
By McLachlin C.J. (dissenting)
Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892); R. v. Rockey, [1996] 3 S.C.R. 829.
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Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
Evidence Act 1995 (Austl.), 1995, No. 2, ss. 59‑75.
Federal Rules of Evidence, Rules 105, 801 et seq.
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APPEAL from a judgment of the Manitoba Court of Appeal (1998), 123 C.C.C. (3d) 145, 123 Man. R. (2d) 292, 159 W.A.C. 292, [1998] M.J. No. 80 (QL), dismissing the accused’s appeal from his conviction on two counts of first degree murder. Appeal allowed and new trial ordered, McLachlin C.J. and L’Heureux‑Dubé, Gonthier and Bastarache JJ. dissenting.
G. Greg Brodsky, Q.C., and Anthony H. Dalmyn, for the appellant.
Gregg Lawlor, for the respondent.
Bernard Laprade and Silvie Kovacevich, for the intervener the Attorney General of Canada.
Written submissions only by Jamie C. Klukach, for the intervener the Attorney General for Ontario.
Alexander Budlovsky and Marian K. Brown, for the intervener the Attorney General of British Columbia.
The reasons of McLachlin C.J. and Bastarache J. were delivered by
1 The Chief Justice (dissenting) – I agree with Justice L’Heureux-Dubé on the issues of Ms. Ball’s out-of-court identification and the charge to the jury on reasonable doubt. I also agree that the victim Cook’s statement that he intended to do an Autopac scam with the accused later the night of the murder was admissible and that the trial judge’s charge to the jury adequately warned them of the dangers associated with this evidence. Accordingly, I would dismiss the appeal. However, I would deal with the hearsay issue relating to the victim’s statement of intention somewhat differently than either of my colleagues.
2 In my view, the following principles govern the admissibility of hearsay evidence:
1. Hearsay evidence is admissible if it falls under an exception to the hearsay rule;
2. The exceptions can be interpreted and reviewed as required to conform to the values of necessity and reliability that justify exceptions to the hearsay rule;
3. Where the evidence is admissible under an exception to the hearsay rule, the judge may still refuse to admit the evidence if its prejudicial effect outweighs its probative value;
4. Where evidence is not admissible under an exception to the hearsay rule, the judge may admit it provided that necessity and reliability are established.
3 In short, the common law exceptions to the hearsay rule remain the law, as interpreted and updated to conform to the twin requirements of necessity and reliability. Additionally, evidence not falling within an exception may be admitted if the requirements of necessity and reliability are established. This retains the certainty and predictability associated with the common law exceptions to the hearsay rule and avoids the need to hold a voir dire when evidence falls within an established exception. At the same time, it permits the exceptions to evolve and evidence outside the exceptions to be admitted where necessity and circumstantial guarantees of reliability exist. As with all evidence, the trial judge has an overriding discretion to exclude the evidence if its prejudicial effect outweighs its probative value.
4 Applying these rules to this case, the first question is whether an established exception to the hearsay rule applies to the evidence at issue. The answer in this case is yes. The victim’s statement that he intended to do an Autopac scam with the accused later that night is a statement of present intention. Statements of present intention constitute a long-recognized exception to the rule against admitting hearsay evidence.
5 The next question concerns the ambit of the exception of statements of present intention. Here my colleagues differ. L’Heureux-Dubé J. holds that all statements of present intention are admissible. Iacobucci J., following Professor Wigmore’s formulation of the exception, holds that statements of present intention are admissible, unless made in circumstances of suspicion. Canadian law has not yet settled this question.
6 Interpreting the exception in light of the underlying requirements of necessity and reliability, I share Iacobucci J.’s view that statements of present intention presented for the truth of their contents (i.e., to permit inferences as to what the person in fact did) are admissible, provided they were not made in circumstances of suspicion. Contemporaneity is cited as providing a guarantee of trustworthiness for statements of present intention. In the normal course, the words are contemporaneous with a present intention to do that act. If a person as she heads out the door says, “I’m going to the store”, there is every reason to believe that is what she intends to do. This flows from the fact that in the great majority of cases, people making such statements actually intend to do the indicated act. The statement of intention is admitted as a statement of mental condition: inferences that may be drawn as to whether the intended act occurred are another matter: Wigmore on Evidence, vol. 6 (Chadbourn rev. 1976), at §1725, p. 139; R. J. Deslisle: “R. v. Smith: The Relevance of Hearsay” (1991), 2 C.R. (4th) 260, at p. 264.
7 The reason statements of present intention are generally reliable indicators of the speaker’s “present” or contemporaneous state of mind was captured by Gray J. in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892), at p. 299, quoting Beasley C.J. in Hunter v. State, 40 N.J.L.:
In the ordinary course of things, it was the usual information that a man about leaving home would communicate, for the convenience of his family, the information of his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously designed. . . . At the time the words were uttered. . . the reference to the companion who was to go with him was nothing more, as matters then stood, than an indication of an additional circumstance of his going.
8 Sometimes, however, statements of intention may not reflect the actual present intention of the speaker. The circumstances may suggest that the speaker had reason to lie about his or her intentions. In such cases, the circumstantial guarantee of trustworthiness that underlies the exception disappears. This is