nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 263 Date: 20050608 Docket: Q.B.C. No. 21/2004 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and KEVIN CHARLES LENIUS Restriction on Publication: The publication of these reasons in any way is prohibited until after the trial and after the appeal period has expired and if there is an appeal, until the appeal process has been completed or until further order. Counsel: Alistair B. Johnston, Q.C. for the Crown Bobby (Bob) P. Hrycan and Robin Neufeld for the Kevin Lenius JUDGMENT BARCLAY J. June 8, 2005 [1] Michelle Lenius was killed in Regina, Saskatchewan, on November 4, 2003. Her husband, Kevin Lenius, is charged with second degree murder contrary to s. 235 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown tendered a number of statements that were made by the deceased to several Crown witnesses concerning two previous incidents. The first incident took place in August 2003, in which Michelle Lenius alleged that she was choked by Kevin Lenius after he confronted her as to where, and with whom, she had previously been. The second alleged incident occurred on October 17, 2003, when Michelle Lenius was again confronted by Kevin Lenius as to where she had been. On this occasion, he was waiting for her at her residence in the kitchen with the light outs and his car hidden from her view. Kevin Lenius beat and then choked Michelle Lenius until she thought she was going to die. He then sexually assaulted her. Kevin Lenius threatened to kill Michelle Lenius if she did not drop the assault and sexual assault charges. [2] The Crown seeks to admit the two previous incidents of choking as similar fact evidence to prove issues of motive, intent and modus operandi. The Crown also seeks to admit several hearsay statements concerning the previous incidents of assaults and threats for the truth of their contents as being relevant to the issues of motive, intent, and modus operandi. 1. Is s. 589 of the Criminal Code bar to the admissibility of Michelle Lenius’ statement to the police concerning the charges of October 17, 2003? 2. Are the two previous incidents of choking which occurred in August and October admissible as similar fact evidence? 3. Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? 1. Is s. 589 of the Criminal Code bar to the admissibility of Michelle Lenius’ statement to the police concerning the charges of October 17, 2003? [3] Counsel for Kevin Lenius has argued that s. 589 of the Criminal Code should be considered bar to the admissibility of statements made by Michelle Lenius to Constable Ryan Dureau of the Regina City Police which resulted in Kevin Lenius being charged with assault causing bodily harm contrary to s. 267(b) of the Criminal Code and sexual assault contrary to s. 271 of the Criminal Code. [4] Section 589 of the Criminal Code states the following: 589. Count for Murder—No count that charges an indictable offence other than murder shall be joined in an indictment to count that charges murder unless (a) the count that charges the offence other than murder arises out of the same transaction as count that charges murder; or (b) the accused signifies consent to the joinder of counts. This provision of the Criminal Code describes the procedure to be used when determining whether count charging an offence other than murder may be joined in an indictment to count charging murder. This has no bearing on the admissibility of statements, as those matters should be dealt with as evidentiary issues. Kevin Lenius is only charged with second degree murder. 2. Are the two previous incidents of choking which occurred in August and October admissible as similar fact evidence? [5] The Crown has argued that the August and October choking incidents are admissible as similar fact evidence to prove issues of motive, intent and modus operandi. It is a well established principle in Canadian law that similar acts and other discreditable conduct evidence is presumptively inadmissible. The admission of similar fact evidence is an exception to this rule. The “similar fact evidence rule” was clearly enunciated in v. Handy, 2002 SCC 56 (CanLII); [2002] S.C.R. 908, at para. 55 Similar fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to the particular issue outweighs its potential prejudice and thereby justifies its reception. [6] Handy, supra, and its companion case, v. Shearing, 2002 SCC 58 (CanLII); [2002] S.C.R. 33, are both highly instructive cases in which the Supreme Court of Canada has delineated framework for more consistent application of the principled approach to determine the admissibility of similar fact evidence. This framework can be divided into three categories which require examination and assessment: the probative value of the evidence; the assessment of the prejudice; and, weighing up the probative versus prejudicial value. (a) The Probative Value of the Evidence [7] The probative value of similar fact evidence is derived from the improbability of coincidence and whether this improbability supports the double inference that the accused has specific propensity by virtue of prior acts and this specific propensity has manifested itself on question in issue. When determining whether this standard has been met, the trial judge must encroach within the jury’s domain and weigh the evidence in limited manner: v. Arp, 1998 CanLII 769 (SCC), [1998] S.C.R. 339 (1998), 129 C.C.C. (3d) 321 (S.C.C.) at paras. [8] In Handy, supra, the Supreme Court of Canada has identified four non‑exhaustive criteria to be used to assess the probative value of the similar fact evidence. These factors will assist the trial judge in obtaining proper understanding of the principled approach. These criteria include: the issue(s) in question; the presence or absence of collusion, similarities and dissimilarities between the facts charged and the similar fact evidence; and, the strength of the evidence that the events occurred. (i) Identification of “The Issue(s) in Question” [9] In order to assess the probative value of the similar fact evidence, it is necessary to examine the issue for which the Crown seeks to adduce the evidence. The Supreme Court of Canada in Handy, supra, emphasized the importance of issue identification and held that the determination of whether the probative value exceeds the prejudice can only be determined in relation to the purpose for which the similar fact evidence is being tendered. By focussing on the issues to be proved, this ensures that the propensity evidence that is sought to be admitted goes beyond simply demonstrating the “bad character” of the accused. If the issues cease to be in dispute, then the evidence becomes irrelevant and should be excluded: Handy, supra, at para. 47. (ii) The Potential for Collusion [10] The admissibility of similar fact evidence is dependent upon the improbability of coincidence and, as result, collusion is crucial factor which must be addressed by the trial judge as part of their gatekeeper function. In Handy, supra, Justice Binnie stated at paragraph 112 that “where there is some evidence of actual collusion, or at least an ‘air of reality’ to the allegations, the Crown is required to satisfy the trial judge, on balance of probabilities, that the evidence of similar facts is not tainted with collusion.” [11] In Shearing, supra, the mere opportunity for collusion or discussion was insufficient to trigger the gatekeeper’s function. However, in Handy, supra, the issue of collusion was raised where the complainant and the similar fact witness had met previous to the alleged sexual assault and discussed the accused’s criminal record, the witness’ previous abuse suffered by the accused and the money the witness received from the Criminal Injuries Compensation Board for the sexual abuse. (iii) Similarities and Dissimilarities Between the Facts Charged and the Similar Facts [12] The principle of probative value is driven by the nexus between the similar fact evidence and the offences alleged. The court listed several non-exhaustive factors to determine whether nexus exists between the similar fact evidence and the charged facts: proximity in time of the similar acts; the extent to which other acts are similar in detail to the charged conduct; number of occurrences of the similar act; circumstances surrounding or relating to the similar acts; any distinctive feature(s) unifying the incident; and, intervening events. (iii) Strength of the Evidence that the Similar Acts Actually Occurred [13] The strength of the proffered evidence will be an important factor in assessing the probative value of the evidence. It was stated in Handy, supra, at para. 134: ... [W]here admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is factor that the trial judge, exercising his or her gatekeeper function is entitled to take into consideration. Where the truth of the evidence is contested, the cogency of the evidence will suffer. (b) Assessment of the Prejudice [14] In assessing the prejudice of the similar fact evidence, Justice Binnie in Handy, supra, drew distinction between moral and reasoning prejudice. Both of these forms of prejudice are relevant to the assessment of admissibility. Moral prejudice refers to the risk that the similar fact evidence will be used for “[t]he forbidden chain of reasoning to infer guilt from general disposition or propensity” (Handy, supra, at para. 139). Accordingly, morally reprehensible and socially repugnant act will be highly prejudicial and therefore require high degree of probative force to overcome the prejudice: see Shearing, supra, at para. [15] Reasoning prejudice is “the distraction of members of the jury from their proper focus on the charge itself” (Handy, supra, at para. 144). This distraction can take several forms which may include distraction from rational analysis by sentiments of condemnation and revulsion or preoccupation with similar acts to exclusion of the act charged. The danger of reasoning prejudice is the possibility of wrongful conviction. (c) Weighing up the Probative Versus Prejudice Value [16] In order to have the evidence admitted as an exception to the presumptive inadmissibility of similar fact evidence, the trial judge must be satisfied on balance of probabilities that probative value of the similar fact evidence outweighs the prejudice of its admittance. Justice Binnie cautions that there is no inverse relationship between the probative value of the evidence which goes to the proof on an issue and the prejudicial effect of the evidence which goes to trial fairness (Handy, supra, at paras. 148 and 149). Accordingly, when the probative value increases, it does not necessarily mean that the prejudicial value decreases. Justice Binnie concludes the judgment by stating at para. ... Justice is achieved when relevant evidence whose prejudice outweighs any probative value is excluded (R v. Marquard, 1993 CanLII 37 (SCC), [1993] S.C.R. 223, at p. 246) and where evidence whose probative value exceeds its prejudice (albeit in exceptional circumstance) is admitted. Justice includes society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in fair process. criminal justice system that has suffered some serious wrongful convictions in part because of misconceived notions of character and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence. [17] The Crown seeks to admit the two previous incidents of choking as similar fact evidence to prove issues of motive and intent and modus operandi. conviction for second degree murder pursuant to s. 235 of the Criminal Code requires proof beyond reasonable doubt that the accused committed the actus reus and had the requisite mens rea. The mens rea for murder is the subjective intention to kill or the closely related state of mind that combines elements of the intention to cause bodily harm, knowledge that bodily harm is likely to cause death and recklessness as to whether or not death ensues. [18] The similar fact evidence could be used to show hostile behaviour by the accused which would lead to motive to kill. It could also be used to show that the accused intentionally inflicted the fatal choking injury on Michelle Lenius, just as he had intentionally choked Michelle Lenius on the two previous occasions. The Crown’s argument is that Kevin Lenius has situational specific hostility and intention to harm Michelle Lenius by choking, and this propensity gives rise to the further inference that he had proceeded in that way, with the motive and intent to harm Michelle Lenius on November 4, 2003. [19] In the case of Sweitzer v. R., 1982 CanLII 23 (SCC), [1982] S.C.R. 949, the Supreme Court of Canada has held there must, at least, be some evidence capable of reasonably supporting finding that the appellant was implicated in the other similar acts. In this case, there is hearsay evidence from Michelle Lenius’ police report and statements that she made to others regarding the alleged choking incidents. There are also medical records which would attest to Michelle Lenius’ injuries on October 17, 2003. However, the strength of the evidence is substantially negated by the fact that there has been no admission of these facts by the accused and Michelle Lenius is not available for cross-examination. [20] There are number of factors which must be assessed when examining the nexus between similar fact evidence and the charged conduct. The second degree murder charge arose out of an incident that took place on November 4, 2003. The two prior incidents of domestic violence arose in August 2003 and October 2003 which are close in proximity. In this case, the similar fact evidence is quite situation specific. All of the incidents occurred between Kevin and Michelle Lenius after Michelle Lenius had described the marriage as being effectively over and after she had started to see Kelly Bruce. All three incidents occurred in private, within the confines of their residence, and involved heated exchange of words, followed by strangulation. In the October incident, Michelle Lenius had stated in her police report that she had scratched Kevin Lenius’ left arm and when she was found murdered, she also had skin under her finger nails. All three events occurred during time when Kevin Lenius was angry toward Michelle Lenius for dating Kelly Bruce and not being forthcoming as to the new relationship. Also, the Crown suggests that these incidents occurred when Michelle Lenius least expected. [21] In addition, there are important dissimilarities between the incidents. First, the other acts did not result in death, while the charged conduct did. Also, the October incident is distinguished by the fact that Kevin Lenius sexually assaulted Michelle Lenius after brutally attacking her. There were no signs of sexual assault in the August incident or when Michelle Lenius was found murdered. And, in August, Kevin Lenius and Michelle Lenius were living together while they had been separated in October. The October incident was far more serious and planned than the August incident. The three events are all similar, but these similarities are not highly distinctive. However, it was stated by David Paciocco and Lee Stuesser in The Law of Evidence, 3rd ed. (Toronto: Irwin Law, 2002) at p. 56 that: Occasionally, prior discreditable conduct by an accused person will have significant probative value in demonstrating the mental state of the accused, be it knowledge or intent. In such cases, the evidence can be sufficiently connected to the issue in question as matter of common sense, even in the absence of real similarity between the events in question.... The cogency of this evidence comes from the fact that it is unlikely that Kevin Lenius did not intend to harm Michelle Lenius after he intentionally choked her on two previous occasions. [22] When examining the prejudice involved in admitting the similar fact evidence, it is clear that the two previous incidents are extremely prejudicial in nature. There is a serious potential for moral prejudice. As noted in Handy, supra, at para. 140, spousal abuse is an aggravating factor for the purposes of sentencing under s. 718.2 of the Criminal Code and this illustrates the extent of society’s denunciation of this type of abuse. The reprehensible nature of the brutal assaults, even in the absence of the sexual assault, could lead the jury to rely on the prohibited inference that the accused is the type of person who could have committed the crime. There is also a great risk of reasoning prejudice by admitting the similar fact evidence as it may distract members of the jury from their proper focus which is the second degree murder charge. There is the possibility that the jury will equate the intention to harm with the mens rea required to be convicted of murder. Even though the similar fact evidence supports the inference that the accused intentionally inflicted the injury, just as he had intentionally choked his wife in the past, this does not satisfy the additional element that the accused knew the harm was likely to cause death, or was reckless whether death ensued or not. [23] Similar fact evidence is presumptively inadmissible and this creates very heavy onus. The prejudicial nature of the similar fact evidence has not been overcome by its probative value and it should not be admitted in order to ensure the possibility of a fair trial. 3. Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? (a) The Principled Approach [24] Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? The evidentiary rule against hearsay has been stated in the following manner by John Sopinka, Sidney N. Lederman and Alan W. Bryant, in The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 173: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein. The central motivation behind this rule is the inability to test the reliability of the declarant’s out of court assertion through cross-examination and an examination of demeanor. Historically, the Canadian courts have followed categorical approach in which the admissibility of hearsay depended on whether it could fit into one of the pre‑existing hearsay exceptions. This rigid application resulted in the loss of highly probative evidence which could not be included within any previously recognized hearsay exception. [25] The Supreme Court of Canada has now adopted flexible approach to the admissibility of hearsay evidence which is referred to as the “principled approach.” This doctrine, which governs the admissibility of hearsay evidence, has been established and refined in trilogy of Supreme Court of Canada cases which include v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531, R. v. Smith, 1992 CanLII 79 (SCC), [1992] S.C.R. 915, and R. v. Starr, 2000 SCC 40 (CanLII), [2000] S.C.R. 144. [26] R. v. Khan, supra, was sexual assault case in which three-year-old child complained of the incident to her mother shortly after she was assaulted by her family doctor. The child was held to be incompetent to testify and so the issue became whether to admit the mother’s out of court statement for the truth of its contents. In order to admit the mother’s statement, Madam Justice McLachlin, as she then was, writing for the court, held that it was open to the court to create new exceptions to the hearsay rule. The principles turned to were necessity and reliability. According to this new exception, the child’s statements to her mother should have been received. [27] Nearly two years later, in v. Smith, supra, the Supreme Court of Canada clearly stated that the principles identified in Khan, supra, were not to be confined to children’s evidence in sexual assault cases. Chief Justice Lamer wrote at p. 933: This Court’s decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on principled basis, the governing principles being the reliability of the evidence, and its necessity.... [28] In R. v. Starr, supra, the Supreme Court of Canada clarified the extent of the application of the principled approach and held that all existing traditional hearsay exceptions can be challenged under the twin requirements of necessity and reliability. Iacobucci J. outlined the approach to be taken in future cases for the admission of hearsay which preserves the traditional hearsay exceptions while avoiding any unnecessary arbitrariness of the exceptions that may apply in particular situation. The steps for the determination of hearsay issues have be summarized in the following manner (Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. Supplement (Markham: LexisNexis Canada Inc., 2004) at 30 and 31): (1) Hearsay evidence is presumptively admissible, without the need for voir dire, if it falls under an established exception to the hearsay rule because the exceptions all have certain inherent reliability. (2) hearing may be held to determine whether the hearsay exception complies with the requirement of the principled approach. The principled approach prevails. If the hearsay exception conflicts with the principled approach, it should be modified or interpreted in manner consistent with the requirements of the principled approach.... (3) In some rare and unusual cases, it may be possible under the particular circumstances of case for evidence clearly falling within an otherwise valid exception, nonetheless, not to meet the principled approach requirements of necessity and reliability. In such case, the evidence would have to be excluded. The burden lies on the party challenging the admissibility of evidence falling within traditional exception of showing that the evidence should nevertheless be excluded. It will be up to the trial judge to determine the procedure, whether by voir dire or otherwise, for the determination of admissibility. (4) If evidence does not fall within the hearsay exception then it still may be admitted if, on voir dire, the court is satisfied that it meets the requirements of necessity and reliability. (b) Necessity and Reliability [29] The purpose of voir dire is to determine whether the evidence is necessary to prove fact in issue and whether it is reliable. The first determination that must be made by trial judge is whether the evidence is necessary to prove the fact in issue. On the criterion of necessity, Chief Justice Lamer in v. Smith, supra, stated at pp. 933 and 934: ... [T]he criterion of necessity, must be given flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for variety of reasons available …Wigmore [John Henry Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2nd ed. (Boston: Little, Brown Co., 1923], while not attempting an exhaustive enumeration, suggested at §1421 the following categories: (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination].... (2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources…. The necessity is not so great; perhaps hardly necessity, only an expediency or convenience, can be predicated. But the principle is the same. Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of child’s statements when the child was not herself competent witness. We also suggested that such hearsay might become necessary when emotional trauma that would result to the child if forced to give viva voce testimony would be great. Whether necessity of this kind arises, however, is question of law for determination by the trial judge. [30] Smith, supra, has affirmed that the death of the declarant may be sufficient to establish the criterion of necessity as the declarant is permanently unavailable for cross-examination. However, if other hearsay from the same witness with the same content has already been admitted, then the hearsay may not be necessary. See v. G.N.D. (1993), 1993 CanLII 14712 (ON CA), 81 C.C.C. (3d) 65 (Ont. C.A.) leave to appeal to the S.C.C. refused (1993), 82 C.C.C. (3d) vi. [31] The condition of reliability requires that any hearsay statement which is offered for the truth of its contents must be made in circumstances which substantially negate the possibility of the declarant being untruthful or mistaken. The Court is only concerned with threshold reliability when determining the admissibility of hearsay statement. In Starr, supra, Iacobucci J. provided the following guidance on threshold reliability at pp. 254 and 255: ... Threshold reliability is concerned not with whether the statement is true or not; that is question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra Smith, supra), or because there were safeguards in place such that lie could be discovered (see Hawkins, supra; U.(F.J.), supra, B.(K.G.), supra). ... At the stage of hearsay admissibility the trial judge should not consider the delcarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, would not consider the presence of corroborating or conflicting evidence…. In summary, under the principled approach court must not invade the province of trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow finding of threshold reliability. [Underlining in original] [32] The Alberta Court of Appeal in R. v. Nguyen, 2001 ABCA 98 (CanLII); (2001), 153 C.C.C. (3d) 495 (Alta. C.A.) further expanded on the notion of threshold reliability and set out number of important factors to consider within this inquiry. These factors include: the declarant’s motive; the spontaneity of the statements, contemporaneity with the events set out; the demeanor of the declarant; and the declarant’s conduct at the time the statement was made. [33] In v. Czibulka, (2004) 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199; (2004) 24 C.R. (6th) 152 (Ont. C.A.) at para. 22, the court explored further branch of reliability which is concerned with reliability that is achieved by the substitution of procedural safeguards that the court has traditionally relied upon, such as the ability to cross-examine, the presence of an oath and the ability to observe the declarant’s demeanor. An example of this reliability would occur where declarant has made prior inconsistent statement but had the requisite procedural safeguards to ensure threshold reliability. (c) Residual Discretion to Exclude Hearsay Evidence [34] At the conclusion of the principled approach, the trial judge continues to have an overriding discretion to exclude the evidence if its prejudicial effect outweighs its probative value, even if the evidence has been found to meet the criteria of necessity and reliability. The basis for this discretion is in s.11(d) of the Canadian Charter of Rights and Freedoms which grants the right to fair trial (see v. Hawkins, 1996 CanLII 154 (SCC), [1996] S.C.R. 1043; (1996), 111 C.C.C. (3d) 129 at 161 (S.C.C.). [35] The Crown has argued that the hearsay statements are relevant circumstantial evidence which is material to the issues of intent, motive and modus operandi. According to the Crown, the previous assaults and accompanying threats give Kevin Lenius motive to murder and thereby assists in establishing his intention. They also prove that Kevin Lenius’ state of mind was jealous, suicidal and that he was afraid to go to jail. If the jury was satisfied that the threats and physical assaults were made, they could infer motive and intent. [36] The defence has argued, as per Handy, supra, that the hearsay statements are inadmissible as they are being sought to prove issues which are no longer in dispute. The basis for this submission is that the defence has stated within the voir dire that Kevin Lenius will testify that he killed Michelle Lenius. Currently, there have been no admissions of fact made by the defence to the Crown pursuant to s. 655 of the Criminal Code which would dispense with the requirements of proof that are incumbent upon the Crown. In addition, the Crown is attempting to admit the hearsay to prove the mens rea of the crime, which would still be contested, even if there was formal admission of the actus reus. [37] Initially, it should be noted that any of the statements that were made by the deceased to several Crown witnesses concerning threats made by Kevin Lenius to Michelle Lenius are forms of double hearsay. In Starr, supra, Iaccobucci J., for the majority, made the following statements explaining the protocol to be used in the admission of double hearsay at para. ... [T]here are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant. As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant’s assertion. When the statement is tendered to prove the intentions of third party, this danger is multiplied. If declarant makes statement about the intentions of third party, there are three possible bases for this statement: first, it could be based on prior conversation with the accused…. Under the first scenario, the statement is double hearsay. Since each level of hearsay must fall within an exception, or be admissible under principled approach, the mere fact that the declarant is making statement of present intention is insufficient to render it admissible, The second level of hearsay must also be admissible. [Underlining in original] Counsel for the defendant has suggested that both levels of hearsay require circumstantial guarantees of trustworthiness. However, this is an incorrect statement of the law. The threats made by Kevin Lenius to Michelle Lenius would have been admissible as admissions which are not subject to the twin requirements of necessity and reliability. [38] Admissions are any statements made by the litigant and tendered at trial by the opposing party. Sopinka J. expands on this in v. Evans, 1993 CanLII 86 (SCC), [1993] S.C.R. 653 at 664: The rational for admitting admissions has different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute as to whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against party. Its admissibility rests on the theory of the adversary system that what party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements.... Had Michelle Lenius been alive to testify, or if third party heard the threat, the evidence would have been admissible as an admission. As result, only the communications between Michelle Lenius and the Crown witnesses are subject to the requirements of necessity and reliability: see v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489 (Ont. C.A.) leave to appeal to the Supreme Court of Canada dismissed. [39] For the purpose of this analysis, the requirement of necessity is clearly established as Michelle Lenius is dead and there is no other way to derive the hearsay statements. The remainder of the analysis will focus on the reliability of the statements. Michelle Lenius’ Statement to Police [40] The contents of the police statement include Michelle Lenius’ account of the assault, sexual assault and threats which occurred on October 17, 2003 and reference to the previous assault in August 2003. The first part of this statement was written by Michelle Lenius and then the following questions were taken and recorded by Constable Dureau. Constable Dureau could not remember if the statement was written in his presence, at his desk, or at another desk. These events were recorded the same day that the incident occurred and would have been fresh in Michelle Lenius’ memory. She had no motive to fabricate the contents of the statement. This statement was documented by the police and Michelle Lenius could suffer legal consequences for making false allegations to the authorities if the contents of the statement were not true. Michelle Lenius would have had an appreciation that Kevin Lenius would be charged on the basis of the information being offered and that there would be the possibility that she could be cross-examined on the given facts. The fact that the statement was taken at the police station and made to person in authority is also indicative of reliability. See R. v. Fleet, 2001 NSCA 158 (CanLII); (2001) 163 C.C.C. (3d) 177 (N.S.C.A.), v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 182 C.C.C. (3d) 393; (2004), 70 O.R. (3d) (Ont. C.A.). However, here statement was not taken under oath nor was it videotaped. Anne Tourigny [41] Anne Tourigny is the mother of the deceased, Michelle Lenius. Anne Tourigny’s evidence consists of statements by Michelle Lenius regarding two separate incidents. In conversation in August 2003, Michelle Lenius complained to Anne Tourigny about sore throat because Kevin Lenius had “choked information out of her.” She showed Anne Tourigny her neck and did not know if she should go to the doctor because it hurt to swallow. Anne Tourigny did not know what that information was regarding. The second conversation occurred at 2:00 a.m., on October 17, 2003, when Michelle Lenius telephoned Anne Tourigny from her house, after Kevin Lenius had left, and stated to the effect that Kevin Lenius had been waiting in the dark for her and he beat, raped and choked her until she blacked out. Michelle Lenius stated to Anne Tourigny that she thought she was going to die. She said that Kevin Lenius then proceeded to threaten her and said if she told anyone there would be consequences and he would kill her and her mother and father. Michelle Lenius was crying during this conversation. The urgency and spontaneity of the phone call on October 17, 2003, combined with the contemporaneity of the events set out in the statement, may suggest reliability. Constable Ryan Dureau [42] Constable Ryan Dureau is police officer with the Regina City Police. He was on duty on October 17, 2003 when Michelle Lenius came to the police station to give report. She told Constable Dureau that she had been assaulted by Kevin Lenius with whom she had been separated from for one month. He stated that Michelle Lenius described an assault in the early morning hours of October 17, stating that she came home to her residence where the doors where locked and the lights were out. She entered inside, turned on the lights and she advised that Kevin Lenius came out of the kitchen. He was upset and asked her where she had been. Michelle Lenius said Kevin Lenius had access to her residence with her keys but she was surprised he was there. Kevin Lenius was angry and hit Michelle Lenius in the face, pushed her into the cupboards, and choked her. She said she was afraid for her life and could not breathe. Kevin Lenius then let Michelle Lenius up and advised that he wanted to have sex with her. She did not want to have sex with Kevin Lenius and did not resist although Kevin Lenius took Michelle Lenius to the room and had sex with her. After that was finished, Kevin Lenius advised Michelle Lenius that he was going to kill himself in the garage. Michelle Lenius asked him to leave and he did. She gave the Constable written statement to that effect. [43] Constable Dureau reported that Michelle Lenius was timid, sober and unsure of how to proceed and what would happen to Kevin Lenius. Denise Batters [44] Denise Batters is lawyer at Michelle Lenius’ place of employment. She and Michelle Lenius had professional relationship and occasionally talked about personal matters. The hearsay in question concerns statement made by Michelle Lenius to Denise Batters, on October 20, 2003, at 9:00 a.m., in which she indicated that on October 17, 2003, Kevin Lenius was waiting in her dark house, and had beat her and raped her. Michelle Lenius told Denise Batters that on the following Friday she went to get rape kit at the hospital and then to the police station but, the police said they could not arrest Kevin Lenius until Monday. Michelle Lenius stated that Kevin Lenius had threatened her and stated to the effect that she should not go to the police as they could not protect her twenty-four hours day. Denise Batters stated that Michelle Lenius was scared for her safety, calm, yet anxious when she described the October 17 incident. Kelly Bruce [45] Kelly Bruce had been seeing Michelle Lenius since June of 2003 and he knew that her marriage to Kevin Lenius was over. He was able to provide greater detail into the two incidents. Michelle Lenius told Kelly Bruce that in August 2003, Kevin Lenius had pinned Michelle Lenius against the wall by the neck and ordered her to tell him where she was and who she was with. She said she was scared and he was hurting her. Michelle Lenius told Kevin Lenius that she was seeing someone else and Kevin Lenius told her to stop because it was making him look bad. [46] The second hearsay statement occurred three-quarters of an hour after the October 17 incident. Michelle Lenius told Kelly Bruce that she had been beaten up. He said her clothes were ripped and she had bruises on her face, arms and legs. She said that Kevin Lenius was waiting for her to get home. After an argument ensued, Michelle Lenius said she wanted to leave. Kevin Lenius hit her across the face and pushed her up against the cupboards and had his hands around her neck. After leaving Michelle Lenius’ house, she told Kelly Bruce she had been raped. Kelly Bruce characterized Michelle Lenius’ state of mind as being horrible. [47] Also, on November 2, 2003, Michelle Lenius told Kelly Bruce that Kevin Lenius had ordered her to drop the charges from October 17, 2003 or she would have to live with the consequences. These statements were made in temporal proximity with the relevant events. Kelly Bruce stated that Michelle Lenius was sober on the night of October 17 and appeared to be defeated and depressed. Denise Grant [48] Denise Grant was friend of Michelle Lenius and they worked as secretaries at the same law firm. The statements sought to be admitted by the Crown are an account of both the August and October incidents. Denise Grant was told by Michelle Lenius in telephone conversation in August 2003, that Kevin Lenius pushed her and shoved her against the wall by the throat because she was seeing someone else. Michelle Lenius said she had bruises. On October 19, 2003, Michelle Lenius stated to Denise Grant in telephone conversation that on October 17, after she and Kelly Bruce had returned from movie, Kevin Lenius was waiting for her in her dark kitchen. She said that she had tried to reason with him. He pushed and choked her and she thought it would be the last time she would see her children. He then raped her. She also stated that there was knife on the counter that was not there previously. Michelle Lenius said she pressed charges and told her about the hospital visit. Denise Grant said that after this incident, Michelle Lenius was scared and always looking over her shoulder. She promised Denise Grant that she would not be alone again with Kevin Lenius. Mark Mulatz [49] Mark Mulatz was lawyer that Michelle Lenius worked for and he knew her well. The statements sought to be admitted involve telephone conversation on the morning of October 17, 2003, at 8:00 a.m., in which Michelle Lenius told Mark Mulatz that she would not be at work because she had been beaten by Kevin. Mark Mulatz said she sounded quiet on the phone and did not sound normal. She then spoke to Mark Mulatz on the following Friday, accompanied by her parents. She told Mr. Mulatz that she was assaulted by Kevin the night before and that he grabbed her by the throat. Mark Mulatz said she was frightened and inquired if she should go to the police. She was embarrassed and Mark Mulatz felt it was difficult for her to confide in him. He said she was frightened, distraught and appeared to have been crying. Finally, Michelle Lenius told Mr. Mulatz about telephone conversation in which Kevin Lenius tried to convince Michelle Lenius to drop the charges and stated that court order did not mean anything and that Michelle Lenius would not know what hit her. Michelle Lenius was crying when she relayed this conversation to Mark Mulatz. Yvonne Bachelu [50] Yvonne Bachelu and Michelle Lenius were friends and they worked at the same law office. Again, the hearsay statements surround the same two incidents. In August 2003, Michelle Lenius told Yvonne Bachelu that Kevin Lenius had choked Michelle Lenius and only stopped when their son interceded. Then, in October 2003, Michelle Lenius told Yvonne Bachelu that Kevin was in her house and frightened her when she returned home. She was unable to leave as she was pinned in the kitchen and there was knife in the kitchen that was not previously there. Michelle Lenius also told Yvonne Bachelu that Kevin Lenius told her that if she told anyone about the assault or sexual assault he would kill her. [51] Counsel for the defence has cited v. Ghosn, [1996] O.J. No. 4056 (QL) (Ont. Court (Gen. Div.)) as being blueprint for the type of analysis that should be engaged. In Ghosn, supra, voir dire was held to determine the admissibility of hearsay evidence which included statements regarding threats, assaults and abusive behaviour directed toward the deceased. The accused was charged with first degree murder in the death of his common law spouse, with whom he had been in tumultuous relationship for three years. The Crown sought to introduce hearsay evidence of specific acts of violence by the accused against the deceased. Some of these acts included punching the deceased, hanging her over the balcony, kicking her in the stomach while she was pregnant and threatening to kill her. Many of these incidents occurred months before the murder by the accused. The trial judge held that the probative value of the evidence was outweighed by its prejudice and, in para. 128, it was stated that “evidence of the disgraceful conduct of the accused over the term of the relationship could, in my view, very well distract the jurors from their duties, which again, are to determine whether at the very moment of the unfortunate death of Miss Guy on the evening of April 28th, 1995 the accused meant to kill her and had planned and deliberated to that end.” CONCLUSION [52] I am cognizant of the fact that the general exclusionary rule that similar fact evidence is presumptively inadmissible has been affirmed repeatedly and recognizes that the potential for prejudice distraction and time consumption associated with the evidence generally outweighs its probative value. Issues may arise however for which its probative value outweigh the potential for abuse. [53] It is critical to underscore that learned counsel for the Crown has agreed in complete fairness that the hearsay statements made by the deceased to her friends, family and colleagues concerning the threats cannot be separated from the incidents of choking and sexual assault. In other words, it would not be feasible to edit these statements to exclude any reference to the assaults as the remaining statements (the sanitized version) would be misleading to the jury. Therefore, it is not necessary to decide the principled approach to the hearsay evidence. Although a convincing argument may be made with respect to the reliability of the statements, I do have some concerns about this issue in all of the circumstances. The concerns would include the statement given to the police. There is nothing which would convincingly serve as indicia of reliability adequate to offset the absence of an oath, warning or videotape. [54] In any event, it is significant that even where hearsay statement satisfies the criteria for necessity and reliability, the trial judge has residual discretion to exclude the statement from admission into evidence where, in his or her opinion, “its probative value is slight and undue prejudice might result to the accused.” R. v. Johnson (2004), 2004 NSCA 91 (CanLII), 188 C.C.C. (3d) 214 (N.S.C.A.). [55] In my view the prejudicial effect of the statements outweigh any probative value it may have. There is high risk that the jury might conclude that man who previously had choked and sexually assaulted his wife would be disposed to wilfully kill her. It is significant that it is not in dispute that Kevin Lenius killed the deceased and that the only issue is intent. Therefore, by introducing evidence of previous aggravated assaults and sexual assault would be so prejudicial as to deprive him of fair trial on the real issues that the jury must decide. Evidence of the previous bad conduct of Kevin Lenius may distract the jurors from their responsibilities which is to determine whether Kevin Lenius intended to kill the deceased. In other words, the previous incidents that occurred in August and October 2003, are so morally and socially repugnant that this testimony would detract from the central issue of the case, that is, what occurred on November 4, 2003 and in particular did Kevin Lenius intend to kill Michelle Lenius. [56] In the Ghosn decision, supra, Mr. Justice Morin states as follows at para. 128: ¶128 My concern on this voir dire has been, having regard to the fact that there is no issue that the accused killed the deceased and that the only issues are intent and premeditation, that the bringing out before the jury of litany of specific assaults over the term of the relationship would be so prejudicial to the accused as to deprive him of fair trial on the real issues that the jury must decide, and that is whether the accused intended, on April the 28th, 1995, to kill Sherri‑Lee Guy and was her death planned and deliberate. Evidence of the disgraceful conduct of the accused over the term of the relationship could, in my view, very well distract the jurors from their duties, which in this case, again, are to determine whether at the very moment of the unfortunate death of Miss Guy on the evening of April 28th, 1995 the accused meant to kill her and had planned and deliberated to that end. That statement, except for the reference to planned and deliberate, is analogous to the case at bar. [57] For all the above reasons, the statements made by the deceased to her friends, family and colleagues concerning threats and assaults will not be admitted. [58] Notwithstanding the above, the jury is entitled to consider the general nature of the relationship from its inception and that on occasion it was tumultuous and that the deceased left the accused and that the relationship appeared to be over. J. R. L. Barclay
Accused is charged with second degree murder in the death of his estranged wife. The Crown sought to admit into evidence a number of statements that were made by the deceased to several crown witnesses concerning two previous incidents she had with the accused in the weeks prior to her death. In the first incident, the accused is alleged to have choked the victim after he confronted her about where she had been. In the second incident the accused confronted the victim and beat and choked her and then sexually assaulted and threatened to kill her. The Crown seeks to admit this similar fact evidence and several hearsay statements to prove the issues of motive, intent and modus operandi. HELD: The statements by the deceased are not admissible. The prejudicial nature of the similar fact evidence has not been overcome by its probative value. It is well established law that similar acts and other discreditable conduct evidence is presumptively inadmissible and that similar fact evidence is the exception to this. To determine its admissibility, three things need examination, 1) the probative weight of the evidence, 2) the assessment of the prejudice and 3) the weighing of the probative value versus prejudicial value. In examining the probative weight of the evidence, factors to be considered include the issues in question, the presence or absence of collusion, similarities and dissimilarities between the facts charged and the similar fact evidence and the strength of the evidence that the events occurred. The two previous incidents are extremely prejudicial in nature leading to potential moral prejudice. That is, reprehensible nature of the assaults could lead the jury to rely on the prohibited inference that the accused is the type of person who could have committed the crime. There is also a great risk of reasoning prejudice. That is, admitting the similar fact evidence may distract the jury from their proper focus which is the second degree murder charge. There is a possibility that the jury will equate the intention to harm with the mens rea required for a murder conviction. With respect to the hearsay evidence, the Court held that statements made by the deceased to her friends, family and colleagues concerning the threats and assaults will not be admitted. The test of necessity is clearly met by the fact that the person making the statements in now deceased and not able to testify. However, the Court was concerned about the reliability of the statements since there is nothing that would serve as convincing indicia of reliability adequate to offset the absence of an oath.