Ontario Criminal


Evidence

Hearsay

Trial judge erred in admitting hearsay evidence

Accused and deceased lived next to each other in rooming house and regularly used crack cocaine, often together. Accused stabbed deceased several times with knife and chased her friend G down hall with knife. Accused was charged with first degree murder. Trial judge admitted hearsay statement allegedly made by deceased to G that accused had stalked and beaten her, and statement by another rooming house resident P to police that accused was possessive and jealous of deceased, under principled exception to rule against hearsay evidence. Jury acquitted accused of first degree murder but convicted him of included offence of second degree murder. Accused appealed conviction. Appeal allowed. Trial judge erred in admitting hearsay evidence in support of Crown’s contention that deceased’s murder was motivated by accused’s anger and jealousy over her relationship with G. Crown did not demonstrate that hearsay evidence on which it relied was sufficiently reliable to justify its admission under principled exception to rule against hearsay evidence. Improperly admitted hearsay evidence was important feature of Crown’s case as it related to accused’s alleged animus towards deceased. That animus was central to Crown’s case on issue of intent. It could not be said that verdict would necessarily have been same had evidence been excluded. There was no suggestion that deceased’s statement to G, offered by Crown for proof of its contents to show that accused had previously assaulted, stalked, and was obsessed with deceased, fell within any of traditional exceptions to rule against hearsay evidence. Trial judge materially misapprehended evidence that was central to his ultimate assessment of reliability of deceased’s hearsay statement. Similarly, P’s statement should not have been admitted. P’s opinion about nature of deceased’s relationship with accused was not admissible under principled exception against hearsay evidence. Improper admission of P’s statement exacerbated prejudice suffered by accused through improper admission of deceased’s statement to G. New trial ordered.

R. v. Dupe (Sep. 2, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C54443) 132 W.C.B. (2d) 472.

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