



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Dupe, 2016 ONCA 653

DATE: 20160902

DOCKET: C54443

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Dupe

Appellant

Philip Campbell, for the appellant

Roger A. Pinnock, for the respondent

Heard:  June 21, 2016

On appeal from the conviction entered by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting with a jury, on May 13,
    2011.

Doherty J.A.:


I



OVERVIEW

[1]

The appellant and Denna Smith lived next to each other in a rooming
    house in downtown Toronto.  Both regularly used crack cocaine, often together. 
    On June 29, 2007, the appellant stabbed Ms. Smith several times.  Two of the
    wounds pierced her heart and proved fatal.  The appellant, still armed with the
    knife, rushed toward Myles Groulx, a friend of Ms. Smith, and chased him down
    the hall towards Ms. Smiths room.  Mr. Groulx managed to get through the door
    and barricaded himself inside the room.  The appellant entered the room, but
    left without harming Mr. Groulx.  The police arrived shortly afterward.  They found
    the appellant on the roof with the knife.  He told the police, I lost it and stabbed
    her  I hope she will be okay.

[2]

The appellant was charged with the first degree murder of Ms. Smith and
    the attempted murder of Mr. Groulx.  At the outset of the trial, the appellant
    entered a guilty plea to the included offence of manslaughter.  The Crown refused
    to accept the plea and the trial proceeded.

[3]

The jury acquitted the appellant on the charge of first degree murder,
    but convicted him on the included offence of second degree murder.  The jury
    acquitted the appellant on the attempted murder charge.  The trial judge
    imposed a sentence of life imprisonment without eligibility for parole for 14
    years.

[4]

The appellant appeals his conviction only.  The Crown does not appeal
    the acquittals on the first degree murder charge and the attempted murder
    charge.

[5]

There are three grounds of appeal:
[1]

·

Did the trial judge err in admitting hearsay evidence in support
    of the Crowns contention that Ms. Smiths death was motivated by the
    appellants anger and jealousy?

·

Did the trial judge err in limiting the scope of the surrebuttal
    evidence called by the defence in answer to the Crowns reply evidence?

·

Did the trial judge err in failing to leave the defence of
    provocation with the jury?

[6]

I would allow the appeal on the first ground.  I would hold that the
    Crown did not demonstrate that some of the hearsay evidence relied on by the
    Crown was sufficiently reliable to justify its admission under the principled
    exception to the rule against the admissibility of hearsay evidence.  The
    improperly admitted hearsay evidence was an important feature of the Crowns
    case as it related to the appellants alleged animus toward Ms. Smith.  That
    animus was, in turn, central to the Crowns case on the issue of intent.  It
    cannot be said that the verdict would necessarily have been the same had the
    evidence been excluded.  The appellant is entitled to a new trial on the charge
    of second degree murder.


II



The Positions at Trial

[7]

The appellant testified at trial and admitted that he stabbed and killed
    Ms. Smith, although he professed to have no recollection of doing so.  The defence
    argued that the Crown had failed to prove that the appellant had the intent
    required for murder under s. 229 of the
Criminal Code
, R.S.C., 1985,
    c. C-46, or alternatively that if the Crown had proved murder, the Crown had
    not proved that the murder was planned and deliberate.  The defence also argued
    that the trial judge should put the defence of provocation to the jury.  He
    declined to do so.

[8]

The Crowns case in support of the murder allegation included the
    following:

·

evidence of Mr. Groulx, who testified that he saw the appellant
    stab Ms. Smith;

·

evidence of the interactions of the appellant with Ms. Smith and
    Mr. Groulx on the day of and shortly before the homicide;

·

evidence that the appellant and Ms. Smith often argued primarily
    because the appellant believed that Ms. Smith would use the appellants money
    to purchase cocaine and not give the appellant his share of the cocaine;

·

evidence that the appellant had a sexual/romantic interest in Ms.
    Smith, but that she wanted no part of that kind of relationship with the
    appellant; and

·

evidence that the appellant became jealous when Ms. Smith partied
    with other men and that he was angry and jealous when Ms. Smith was partying
    with Mr. Groulx on the day she died.

[9]

The defence relied on the following:

·

evidence that the appellant consumed a great deal of alcohol and
    cocaine on the day of the homicide;

·

the appellants history of mental disorder, drug addiction and
    alcoholism;

·

evidence that the appellant was not taking his prescribed
    medication;

·

evidence that the appellant suffered from a sleep disorder;

·

evidence that the appellant was aroused suddenly from a deep
    sleep immediately before he attacked Ms. Smith; and

·

the psychiatric evidence of Dr. Julian Gojer.

[10]

The
    Crown also led evidence in reply from Dr. Lisa Ramshaw to refute the opinion
    that had been advanced for the defence by Dr. Gojer.


III



The Relationship between the
    Appellant and Ms. Smith

[11]

The
    Crown argued that on the evening of Ms. Smiths death, the appellant was angry
    with her and jealous because she had rejected him in favour of Mr. Groulx.  On
    the Crowns theory, the appellants anger grew during the evening and finally,
    around midnight, he attacked and murdered Ms. Smith in the hallway between
    their rooms.  He then chased Mr. Groulx, attempting to kill him as well.  The
    Crown sought to lead evidence of the nature of the relationship between the
    appellant and Ms. Smith to support its theory of the case.  Although the
    defence did not challenge the admissibility of much of that evidence, it did
    maintain that some of the evidence proffered by the Crown was inadmissible
    hearsay.  Before turning to the contested hearsay evidence, I will briefly
    review the other evidence relevant to the Crowns theory that the appellants
    anger and jealousy led him to murder Ms. Smith.

[12]

The
    appellant and Ms. Smith lived in the same rooming house for about two years. 
    They were both crack cocaine addicts.  They often drank and smoked cocaine
    together.  The appellant considered Ms. Smith a friend.  They helped and
    supported each other.

[13]

Several
    witnesses testified that although the appellant and Ms. Smith were friendly and
    spent time together, they often argued, sometimes very loudly.  The arguments
    followed a typical pattern.  The appellant would show up at Ms. Smiths door
    angry because he believed Ms. Smith had cheated him.  He had given her money to
    purchase cocaine for the two of them, but she had either not given him his fair
    share of the cocaine, or had not given him any of the cocaine, but instead had
    shared it with others.  The arguments would get very loud with Ms. Smith
    insisting that the appellant could not come into her room and the appellant
    crying and banging on Ms. Smiths door.  The same pattern would recur the next month
    when the appellant received his monthly disability cheque and had money to buy
    cocaine.

[14]

The
    landlord of the rooming house the appellant and Ms. Smith lived in testified
    that Ms. Smith complained about the appellant constantly yelling at her door
    and kicking it.  The landlord spoke to the appellant, who promised that he
    would stop bothering Ms. Smith.  Inevitably, however, the appellant would end
    up back at Ms. Smiths door arguing loudly with her.

[15]

In
    his evidence, the appellant agreed that he would give money to Ms. Smith to
    purchase cocaine and sometimes end up receiving less cocaine than he should
    have from Ms. Smith.  He would complain to Ms. Smith and they would argue,
    usually at her door.  Nonetheless, the appellant testified that he continued to
    give Ms. Smith money for cocaine.  He also testified that he sometimes ended up
    crying at her door.  According to the appellant, he was crying because he was drunk
    and when he was drunk he sometimes became sad.

[16]

Donna
    Farmer lived with Ms. Smith for a time.  She described the appellant and Ms.
    Smith as friends who saw each other almost every day.  She said they often
    argued.  Ms. Farmer believed that the appellant had a sexual or romantic
    interest in Ms. Smith.  Ms. Smith made it clear to Ms. Farmer that she had no
    such interest in the appellant.  Ms. Smith told Ms. Farmer that the appellant
    was always bothering her and that he wanted to get laid.  Ms. Smith also
    described the appellant as harmless.

[17]

The
    appellant testified that at one time he had a sexual interest in Ms. Smith.  He
    insisted, however, that when she told him she was not interested in having sex
    with him, he no longer had a sexual interest in Ms. Smith but remained her
    friend.

[18]

The
    appellant sometimes complained to the landlord about Ms. Smith having men in
    her room.  He testified that he complained not out of any sense of jealousy,
    but because of the noise.  Other residents in the rooming house also complained
    for the same reason.

[19]

The
    appellant testified that on one occasion, he learned that Ms. Smith and
    Elsworth Pointer, another resident in the rooming house, had sex in the
    appellants room without his permission.  The appellant became very angry when
    he found them.  He grabbed each by the shirt.  He testified that he became
    angry with Mr. Pointer and Ms. Smith because they were sneaking around on him
    and using his room without his permission.  He was not angry because Ms. Smith
    was having sex with Mr. Pointer.  The appellant testified that Ms. Smith had
    sex with many men.

[20]

Mr.
    Groulx met Ms. Smith two or three weeks before her death.  They were partying
    and smoking cocaine together on June 28 and June 29.  Mr. Groulx first met the
    appellant outside of the rooming house on June 29.  He saw the appellant on
    three occasions during the evening of the 29
th
, once in the
    appellants apartment, and twice in Ms. Smiths apartment.

[21]

On
    one of the appellants visits to Ms. Smiths apartment, he asked Mr. Groulx who
    he was and why he was in the apartment.  Mr. Groulx told him that he was a
    friend of Ms. Smith and that they were partying.  Ms. Smith became angry and
    told the appellant it was none of his business why Mr. Groulx was in the
    apartment.  Ms. Smith gave the appellant a piece of cocaine, but would not allow
    him to smoke the cocaine in her apartment with her and Mr. Groulx.  The
    appellant left.  He was upset.

[22]

Mr.
    Groulx testified that the appellant returned to Ms. Smiths apartment about
    one-half an hour before her death.  Ms. Smith would not let the appellant into
    her room.  He could see Mr. Groulx standing in Ms. Smiths room.  The appellant
    left.  He was angry.

[23]

The
    appellant also described encounters with Ms. Smith and Mr. Groulx on the
    evening of her death.  He testified that he was angry with Mr. Groulx because
    Mr. Groulx took something from his apartment.  He also agreed that he was very
    upset later in the evening, but claimed that it was because of his cocaine
    consumption and mental state and not because he was angry or jealous that Ms.
    Smith was partying with Mr. Groulx and wanted no part of the appellant.

[24]

Mr.
    Groulx testified that about one-half an hour after the appellants last visit
    to Ms. Smiths room, she left to feed another residents cat.  About 15 seconds
    later, Mr. Groulx heard a scream.  He ran to the door and looked out.  Ms.
    Smith was lying on the floor in the hall and the appellant was standing almost
    on top of her holding a knife.  Mr. Groulx could see a great deal of blood.  He
    screamed at the appellant.  The appellant looked at Mr. Groulx, smirked, said
    nothing and plunged the knife into Ms. Smiths chest.

[25]

The
    appellant testified that sometime after he went to bed, he awoke to see a
    shadow passing back and forth in the hall in front of his door.  The appellant
    was nervous and agitated.  He thought someone was trying to get into his room
    to rob him.  He got up and armed himself with a knife.  He opened the door.  He
    saw a lady in a long black gown with dark hair and he saw Mr. Groulx with a
    board in his hand.  He chased Mr. Groulx into Ms. Smiths apartment.  The
    appellant was standing over Mr. Groulx with a knife when he suddenly thought
    what the fuck am I doing?  He turned and walked out of the apartment.  As the
    appellant left Ms. Smiths apartment, he saw a great deal of blood in the
    hallway.  He did not recall stabbing Ms. Smith.


IV



The Challenged Hearsay Evidence

[26]

At
    trial, the Crown sought a ruling on the admissibility of various hearsay
    statements, most of which consisted of utterances made by Ms. Smith to various
    people.  The trial judge was asked to rule on the statements based on the
    transcript of the evidence from the preliminary inquiry, Mr. Groulxs statement
    to the police and the evidence of Detective Sergeant Browne.  The trial judge
    admitted the evidence.  On appeal, the appellant challenges the trial judges
    ruling as it pertains to statements allegedly made by Ms. Smith to Mr. Groulx
    on the day of her death and statements made by Mr. Pointer to the police a few
    days after Ms. Smiths death.

(i)

Ms. Smiths statements to Mr. Groulx

[27]

Mr.
    Groulx testified that he and Ms. Smith were partying in her room on June 28. 
    The party continued the next day.  Sometime in the afternoon of June 29, they
    went outside and happened to meet the appellant.  Mr. Groulx did not know the
    appellant, but it was clear to him that the appellant and Ms. Smith knew each
    other.

[28]

Ms.
    Smith did not introduce Mr. Groulx to the appellant.  Mr. Groulx and Ms. Smith returned
    to her building.  As they were walking up the steps to her room, Ms. Smith began
    to talk about her relationship with the appellant.  Ms. Smith told Mr. Groulx
    that the appellant had asked her out on a couple of occasions, but she was not
    interested.  He then stalked her and  had beaten her.  Mr. Groulx asked why
    she talked to the appellant and Ms. Smith indicated she did not have much
    choice as she lived down the hall from him and had to live there as it was hard
    to find a place that she could afford.  Ms. Smith seemed upset when she was
    talking about the appellant.

[29]

On
    the
voir dire
, the Crown also led evidence of a statement made by Mr.
    Groulx to the police in which he reported that Ms. Smith had told him that the
    appellant had never made any advances towards her, but that he was just
    obsessed with her, like nuts.

(ii)

Mr. Pointers statement to the police

[30]

Detective
    Sergeant Browne interviewed Mr. Pointer on July 2, 2007 as part of the
    investigation into Ms. Smiths death.  Mr. Pointer told him that he lived in
    the building and that he had known the appellant and Ms. Smith for about three
    years.  Mr. Pointer described the appellant as being possessive with [Ms.
    Smith] and jealous if [Ms. Smith] spoke to other men.  Detective Sergeant Browne
    also testified that Mr. Pointer recalled a specific conversation with Ms. Smith
    about a week before her death.  She told Mr. Pointer that the appellant, who
    was angry, had come into her room and thrown her VCR at the wall.

[31]

Detective
    Sergeant Browne acknowledged on cross-examination that Mr. Pointers belief
    that Mr. Dupe was possessive could have come from anywhere.  Detective
    Sergeant Browne suspected that Mr. Pointer got that information from Ms. Smith
    but he did not know.

[32]

Mr.
    Pointer died before the trial.

(iii)

The
    trial judges ruling (
R. v. Dupe
, 2010 ONSC 6423)

[33]

The trial judge characterized both Ms. Smiths statement to Mr. Groulx
    and Mr. Pointers statement to the police as hearsay.  He considered their
    admissibility under the necessity/reliability criteria governing admissibility
    under the principled exception to the rule excluding hearsay evidence.

[34]

The
    necessity criterion was clearly met.  Ms. Smith and Mr. Pointer were deceased
    at the time of trial.

[35]

The
    trial judge concluded that Ms. Smiths statement to Mr. Groulx met the
    threshold reliability requirement.  He held, at para. 47:

In my view, Ms. Smiths statements were made spontaneously and
    without prompting to a person she was apparently attracted to and with whom she
    was prepared to spend time and share drugs, without any motive to lie.  In my
    view, it was perfectly natural for her to have truthfully shared her problems
    with Mr. Groulx.  The possibility that the reliability of her statements was
    affected by her ingestion of drugs is more than offset by the consistency of
    her statements with other evidence, some of which is not summarized in this
    ruling.  While not everything that Mr. Groulx said is confirmed by other
    extrinsic evidence, it must be remembered that the essential core of the
    statement is that the relationship between the accused and the deceased was
    acrimonious.  Such evidence has been held to be highly relevant because it may
    afford evidence of the accuseds
animus
or intention to act against the
    victim. [Citation omitted.]

[36]

The
    trial judge ruled that Mr. Pointers statement to Detective Sergeant Browne was
    also admissible hearsay.  The trial judge recognized that Mr. Pointers
    statement describing the appellant as possessive and jealous had evidentiary value
    only insofar as it was the product of Mr. Pointers firsthand observations of
    that relationship.  The trial judge addressed that issue, at para. 53:

But Detective Browne believed that Mr. Pointer was speaking from
    personal knowledge, and it would be open to the jury to reach the same
    conclusion having regard to the fact that Mr. Pointer did not say otherwise,
    and had been Mr. Dupes neighbour for several years in a seven unit apartment
    building where everyone helped each other out and knew each others business. 
    I am of the view that Mr. Pointers reliability is sufficient to be
    admissible.

[37]

The
    trial judge then considered Mr. Pointers statement that Ms. Smith told him the
    appellant threw her VCR at the wall in anger. In holding that Mr. Pointers
    statement was sufficiently reliable to warrant its admissibility, the trial
    judge concluded, at para. 54, that:

It was a statement made to a long-standing neighbour in
    circumstances where she had no motive to lie and which is consistent with other
    extrinsic evidence.

[38]

The
    trial judge completed his analysis of the hearsay evidence by weighing the probative
    value of that evidence against its prejudicial effect.  He determined that the
    evidence logically and properly supported an inference of an existence of
    animus or motive for the appellant to do harm to Ms. Smith and that it did not
    carry any significant risk of moral or reasoning prejudice.

(iv)

Ms. Smiths statement to Mr. Groulx should not have been admitted

[39]

Before explaining why Ms. Smiths alleged statement to Mr. Groulx was
    inadmissible, I will address one preliminary evidentiary issue.  The hearsay
    evidence adduced before the jury differed in one material respect from the
    evidence considered by the trial judge on the
voir dire
.  On the
voir
    dire
, the Crown relied on a statement made by Mr. Groulx to the police in
    which he indicated that Ms. Smith told him that the appellant was obsessed with
    her.  At trial, Mr. Groulx testified that Ms. Smith made that statement to
    him.

[40]

On
    the
voir dire
record, the maker of the out-of-court statement that the
    appellant was obsessed with Ms. Smith was Mr. Groulx and not Ms. Smith.  I have
    serious doubts about the admissibility under the principled exception to the
    hearsay rule of Mr. Groulxs statement to the police as evidence of the truth
    of what Ms. Smith is alleged to have said to Mr. Groulx.  Those concerns do not
    apply to Mr. Groulxs trial evidence and specifically his testimony that Ms.
    Smith told him that the appellant was obsessed with her.  I will address the
    admissibility of Ms. Smiths alleged statements on the basis of Mr. Groulxs
    trial evidence.

[41]

Ms.
    Smiths alleged statement to Mr. Groulx was an out-of-court statement offered
    by the Crown to prove the truth of its contents.  The Crown argued that the
    evidence was admissible to show that the appellant had previously assaulted Ms.
    Smith, stalked Ms. Smith and was obsessed with Ms. Smith.  The statement was
    hearsay: see
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras.
    35-36.

[42]

Ms.
    Smiths statement, if admissible for its truth, was clearly relevant to the
    case for the Crown.  The Crown argued that if the jury accepted the contents of
    Ms. Smiths statement to Mr. Groulx as true, that evidence in combination with
    other evidence described an acrimonious and violent relationship between Ms.
    Smith and the appellant.  On the Crowns theory, the existence of that kind of
    relationship afforded evidence of the appellants animus toward Ms. Smith on
    the day he killed her.  That animus, in turn, constituted evidence that the
    appellant had the intention required for murder under s. 229 at the time he
    killed Ms. Smith: see
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42,
    at para. 63.

[43]

There
    is no suggestion that Ms. Smiths statement to Mr. Groulx falls within any of
    the traditional exceptions to the rule against hearsay evidence.  Her statement
    is presumptively inadmissible.  The onus falls on the Crown to establish admissibility
    under the necessity/reliability criteria of the principled exception to the
    rule against hearsay: see
Khelawon
,

at paras. 42, 59.  Only
    reliability is in issue here.

[44]

Hearsay
    evidence is presumptively inadmissible primarily because, absent contemporaneous
    cross-examination of the declarant, the party against whom the evidence is
    offered cannot effectively test the reliability and veracity of the
    out-of-court statement.  Hearsay evidence is excluded both to protect the
    integrity of the truth seeking function of the trial and to preserve the
    fairness of the trial: see
Khelawon
, at paras. 48, 63; and
R. v.
    Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 77.

[45]

The
    principled exception to the rule excluding hearsay evidence recognizes that
    some hearsay is sufficiently reliable to warrant its admissibility and
    consideration by the trier of fact even though the declarant of the statement
    was not subject to cross-examination when the statement was made.  The case law
    identifies two lines of inquiry relevant to the assessment of the reliability
    of hearsay evidence.  The first line of inquiry asks whether there are
    sufficient other means available to test the reliability of the hearsay
    statement so as to render unnecessary the requirement of contemporaneous
    cross-examination of the declarant.  For example, the availability of the
    declarant for meaningful cross-examination at trial can go a long way to
    providing an adequate substitute for contemporaneous cross-examination of the
    declarant:
Khelawon
, at paras. 63, 76; and
R. v. Devine
, 2008
    SCC 36, [2008] 2 S.C.R. 283, at paras. 22-28.

[46]

The
    second line of inquiry looks to determine whether the circumstances in which
    the hearsay statement was made provide sufficient comfort of its truth to
    justify its consideration by the trier of fact despite the absence of
    contemporaneous cross-examination of the declarant.  Records made in the usual
    and ordinary course of business provide a good example of inherently
    trustworthy hearsay declarations.  In determining whether hearsay is
    sufficiently inherently trustworthy to warrant its admission, the court may
    consider not only the circumstances surrounding the making of the statement but
    other evidence properly before the trier of fact supporting or undermining the accuracy
    of the out-of-court statement: see
Khelawon
, at paras. 4, 56-63;
R.
    v. Blackman
2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35;
Couture
,
    at para. 80;
Devine
, at para. 22; and
R. v. S.S.
, 2008 ONCA
    140, (2008) 232 C.C.C. (3d) 158, at paras. 24-25.

[47]

The
    two lines of inquiry described above are not mutually exclusive, but are considered
    together in assessing the reliability of hearsay evidence for the purposes of
    determining its admissibility: see
Blackman
, at para. 35.  There is,
    however, one important distinction between the two inquiries.  If the hearsay
    evidence is said to be reliable because there are other suitable substitutes
    for contemporaneous cross-examination, the truth of the contents of the hearsay
    statement is irrelevant to the reliability inquiry: see
Couture
, at
    para. 87.  If, however, the evidence is said to be sufficiently reliable
    because of the circumstances in which it was made or the other evidence before
    the trier of fact, the reliability assessment requires a consideration of the
    truth of the hearsay statement.  The court will admit the hearsay statement
    only if satisfied that the circumstances provide sufficient confidence of the
    truth of the statement to justify admitting the statement even though it will
    go largely, if not entirely, untested.  As explained in
Couture
, at
    para. 99:

Because there are no adequate substitutes for testing the
    evidence on the facts of this case, there must be some compelling feature about
    the statement that commands sufficient trust in its truth and accuracy to
    warrant its admission regardless.

[48]

In
    this case, there were no alternative means available to test the reliability of
    the contents of Ms. Smiths alleged statement to Mr. Groulx.  She has never
    been and can never be cross-examined on the statement.  Ms. Smith was not under
    oath or any equivalent when she made the statement and there was no record of any
    kind made of her statement.

[49]

What
    were the compelling features of Ms. Smiths statement that allowed the court
    to place sufficient trust in its truth to admit the statement despite the
    inability to test its reliability and veracity?  The trial judge referred to
    two: the absence of any motive on Ms. Smiths part to lie to Mr. Groulx about
    her relationship with the appellant and extrinsic evidence tending to confirm
    her description of the nature of her relationship with the appellant.

[50]

I
    appreciate that the trial judges ruling on the admissibility of hearsay
    evidence is owed deference by this court: see
Blackman
, at para. 36.   However,
    deference ends if the trial judge materially misapprehends evidence that is
    central to his ultimate assessment of the reliability of the hearsay
    statement.  With respect, the trial judge fell into that error.

[51]

The
    trial judges finding that Ms. Smith had no motive to lie to Mr. Groulx about
    the nature of her relationship with the appellant was based on the trial
    judges finding that Ms. Smiths statement to Mr. Groulx was spontaneous and
    the trial judges description of the relationship between Ms. Smith and Mr.
    Groulx as one which would engender candour and honesty between the two. 
    Neither feature of the evidence can support an inference of an absence of any
    motive to lie.

[52]

Ms.
    Smiths statement was spontaneous in the sense that she volunteered the
    information about her relationship with the appellant and Mr. Groulx. 
    Spontaneity will in some circumstances provide a badge of reliability: see e.g.
R. v. Khan
, [1990] 2 S.C.R. 531.  In my view, however, the sparse
    evidence adduced in this case permits no inference supporting reliability from
    the mere fact that it was Ms. Smith who raised the topic of her relationship
    with the appellant.  I can see no connection between the fact that Ms. Smith
    initiated the discussion about her relationship with the appellant and the
    reliability of what she said about that relationship.

[53]

Similarly,
    I see no connection between the nature of Ms. Smiths relationship with Mr.
    Groulx and the presence or absence of any motive she may have had to
    misrepresent the nature of her relationship with the appellant when speaking to
    Mr. Groulx.  Ms. Smith and Mr. Groulx had known each other for a couple of
    weeks.  They had a casual relationship that revolved around the consumption of
    crack cocaine.  Nothing in the nature of that relationship suggested any
    likelihood that Ms. Smith would be candid with Mr. Groulx about anything.  A
    person in Ms. Smiths position might well lie to her new boyfriend to make it
    appear as though she had other men who were very interested in her.  Equally, a
    person in Ms. Smiths position might take advantage of her new friendship to
    honestly unburden herself about a difficult ongoing relationship she had with
    another man.  There is nothing in the relationship which makes one more likely
    than the other.

[54]

Rosenberg
    J.A. described the relevance of motive to fabricate to the reliability of
    hearsay evidence in
R. v. Czibulka
(2004), 189 C.C.C. (3d) 199, at
    para. 43 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xiv:

It seems to me the record will disclose some variation on three
    scenarios where the Crown seeks to tender a hearsay statement under the
Khan/Smith
model of the principled approach.  First, the Crown may be able to show that
    the declarant had no known motive to fabricate the hearsay story to this
    witness about this accusedConversely, the circumstances may be such that
    either because of direct evidence or logical inference it is apparent that the
    declarant did have a motive to fabricate this story
Or,
    the case may be one where there is simply no evidence and no logical inference
    that the declarant had no motive to lie.  In the last scenario, motive is in
    effect a neutral consideration
.  [Italics in original; underlining added.]

[55]

I
    would place this evidence in the third scenario described by my late colleague. 
    The evidence permits neither an inference of motive to lie nor an inference of
    no motive to lie and, as such, cannot assist the Crown in demonstrating the
    reliability of Ms. Smiths statement.

[56]

The
    trial judge also materially misapprehended the evidence when he described Ms.
    Smiths description of her relationship with the appellant as consistent with
    the other evidence describing that relationship.  The other evidence did not
    give one description of the relationship but rather gave different
    descriptions.  That evidence described a relationship that was turbulent, both
    friendly and acrimonious at times, but not physically violent.
[2]
Ms. Smiths alleged statement to Mr. Groulx, if accepted for its truth,
    supported the inference that the appellant had previously assaulted and stalked
    Ms. Smith.  Without cross-examination, the jury could be left to speculate
    about the nature and number of prior assaults and stalking incidents.  If Ms.
    Smiths statement was accepted as true, the jury could infer a significantly
    higher level of violence in the relationship between Ms. Smith and the
    appellant than suggested by the other evidence.  If the jury took that view of
    Ms. Smiths statement, it fueled the Crowns theory that the appellants animus
    explained the killing.

[57]

The
    other evidence available to the jury describing the relationship between Ms.
    Smith and the appellant did not make Ms. Smiths statement to Mr. Groulx more
    reliable, but rather revealed the inherent ambiguities in that statement.  Ambiguities
    connote unreliability absent an opportunity to cross-examine: see e.g.
R.
    v. Baldree
, 2013 SCC 25, [2013] 2 S.C.R. 520, at paras. 31-32.  To take
    one example, Ms. Smith told Mr. Groulx that she was stalked by the
    appellant.  Her statement is devoid of any detail or context that would provide
    any insight into her meaning.  When she spoke of being stalked, was she referring
    to the appellants repeated appearances at her door to complain about being cheated
    by Ms. Smith, or was she referring to some more menacing conduct that would
    typically be associated with stalking?  The difference between those two
    scenarios could be very important when assessing the Crowns claim that the
    appellants animus toward Ms. Smith precipitated the killing.  Without
    cross-examination, there could be no way of knowing what Ms. Smith meant when
    she said that the appellant stalked her.  These and other ambiguities speak
    against the admissibility of Ms. Smiths statement to Mr. Groulx.  The statement
    should have been excluded.

[58]

The
    curative proviso cannot be applied to the improper admission of Ms. Smiths
    statement to Mr. Groulx.  The appellants state of mind was the only live issue
    at trial.  The alleged animus between Ms. Smith and the appellant on the day
    she was killed was central to the Crowns case that the appellant had the
    intent required by s. 229 of the
Criminal Code
.  Ms. Smiths
    statements that the appellant had assaulted and stalked her, if accepted as
    true by the jury, provided potentially strong evidence to support the Crowns
    case on intent.  No doubt, there was other cogent evidence of intent, including
    certain statements made to the police by the appellant.  However, it cannot be
    said that the jurys verdict would necessarily have been the same had they not
    been told that they could accept Ms. Smiths statement to Mr. Groulx that the
    appellant had assaulted and stalked her as true.

(v)

Mr. Pointers statement to the police should not have been admitted

[59]

My
    conclusion that the statement by Ms. Smith to Mr. Groulx should have been
    excluded and that its improper admission may have affected the result is enough
    to require the ordering of a new trial.  I will, however, address the
    admissibility of Mr. Pointers statement to the police.  As outlined above,
    there were two components to that statement.  Mr. Pointer offered his opinion
    as to the nature of the relationship between the appellant and Ms. Smith, and
    Mr. Pointer told Detective Sergeant Browne that Ms. Smith had told him about an
    incident in which the appellant threw her VCR at the wall.

[60]

Mr.
    Pointers evidence that the appellant was possessive of Ms. Smith and jealous
    of her activities with other men amounted to an opinion as to the nature of the
    relationship between Ms. Smith and the appellant.  Had Mr. Pointer been
    available to testify, he could have offered his opinion of the nature of the
    relationship only if that opinion was based on personal knowledge of the facts underpinning
    it: see
R. v. Graat
, [1982] 2 S.C.R. 819, at pp. 836-37.  That opinion,
    when offered by way of an out-of-court statement allegedly made by Mr. Pointer,
    must meet the same precondition to admissibility: see
Couture
, at
    para. 75.

[61]

There
    was no evidence on the
voir dire
of the basis for Mr. Pointers
    opinion about the nature of the relationship between Ms. Smith and the
    appellant.  Detective Sergeant Brownes assumption about the basis for that
    opinion was not evidence.  Absent that evidence, Mr. Pointers opinion about
    the nature of the relationship between the appellant and Ms. Smith was
    inadmissible apart entirely from its hearsay character.  To put the same point
    somewhat differently, regardless of whether the evidence was hearsay, it had no
    probative value absent evidence of the basis upon which Mr. Pointers opinion
    about the relationship was formed.  The mere fact that Mr. Pointer and Ms.
    Smith were friendly neighbours did not permit the inference that what Mr.
    Pointer said about the relationship between the appellant and Ms. Smith was
    based on his personal observations as opposed to what others may have told him.

[62]

The
    second part of Mr. Pointers statement to the police did involve a statement
    allegedly made to him by Ms. Smith.  Its admissibility hinges on the same
    reliability inquiry outlined in my analysis of the admissibility of Ms. Smiths
    statement to Mr. Groulx.

[63]

There
    is little, if anything, to commend the inherent reliability of Ms. Smiths
    statement to Mr. Pointer.  Neither the declarant (Ms. Smith), nor the person to
    whom the statement was made (Mr. Pointer) are available for cross-examination. 
    While it may be arguable that the fact that Mr. Pointer made the statement to
    the police in the course of an investigation of the death of his friend lends
    some reliability to Mr. Pointers assertion that Ms. Smith told him about the
    VCR incident, it does nothing to address the more important question of the
    reliability of what Ms. Smith said to Mr. Pointer.

[64]

The
    trial judge found that Ms. Smiths statement to Mr. Pointer was reliable
    because she had no motive to lie.  There was no basis for this finding.  As
    with Ms. Smiths statements to Mr. Groulx, the circumstances did not permit any
    inference as to the existence or non-existence of a motive to lie.  Their
    relationship  they had been neighbours for three years  could not reasonably
    justify the inference that Ms. Smith had no motive to lie to Mr. Pointer about
    the VCR incident.

[65]

Neither
    Mr. Pointers opinion about the nature of the relationship between the
    appellant and Ms. Smith, nor his evidence about Ms. Smiths statement
    concerning the VCR qualified as admissible hearsay under the principled
    exception to the rule against hearsay evidence.  Like the improperly admitted
    hearsay evidence from Mr. Groulx, this evidence supported the Crowns case on
    the issue of animus.

[66]

The
    improper admission of Mr. Pointers statement to the police may or may not have
    amounted to reversible error on its own.  However, its improper admission
    serves to exacerbate the prejudice suffered by the appellant through the
    improper admission of Ms. Smiths statement to Mr. Groulx.


V



the other grounds of appeal

(i)

The ruling on the scope of surrebuttal evidence

[67]

The
    defence called Dr. Gojer, a psychiatrist.  He testified about the appellants
    psychiatric condition and offered an opinion as to his state of mind when he
    stabbed Ms. Smith.  The Crown called Dr. Ramshaw in reply.  The defence sought
    to recall Dr. Gojer in surrebuttal.

[68]

The
    defence outlined some 14 issues (some closely related) on which it proposed to
    question Dr. Gojer.  The trial judge allowed surrebuttal evidence on four of
    the issues.  On appeal, the appellant submits that the trial judge should have
    allowed surrebuttal on an additional four issues.

[69]

As
    I would order a new trial on the hearsay ground, and there is no prospect that
    the admissibility of the proposed surrebuttal evidence from Dr. Gojer could become
    an issue on the retrial, I do not propose to examine the ruling at length.  The
    trial judge understood that he had the discretion to permit surrebuttal
    evidence.  He considered the relevance of the proposed surrebuttal testimony
    and whether the appellant had had a full opportunity to address the issues which
    were the subject of the proposed surrebuttal with Dr. Gojer when Dr. Gojer testified
    as part of the defence:  see D. Watt,
Watts Manual of Criminal Evidence
,
    2016 ed. (Toronto: Thompson Reuters Canada, 2016), at para. 23.01.


[70]

I
    see no error in principle in the trial judges exercise of his discretion.  He
    carefully reviewed the evidentiary record.  Nor did he act unreasonably in
    drawing the surrebuttal line where he did.  Some judges, having decided that
    some surrebuttal evidence was appropriate, may have allowed more leeway in the
    evidence to be called than did the trial judge.  It is not, however, the role
    of this court to micromanage the decisions made by the trial judge in the
    exercise of his power to manage the conduct of the trial.

[71]

The
    trial judges ruling did not deny the appellant the opportunity to fully and
    fairly present his defence and, specifically, the evidence of Dr. Gojer as it might
    assist his defence.

(ii)

The refusal to leave the defence of provocation

[72]

At
    trial, the defence maintained that the Crown had failed to prove beyond a
    reasonable doubt that the appellant had either of the intents required for
    murder under s. 229 of the
Criminal Code
.  There was no other defence
    advanced.  Specifically, the defence of provocation as defined in s. 232 of the
Criminal Code
was not put forward.  That defence assumes the existence
    of the required intention for murder and creates a partial defence for those
    who kill with that intention.

[73]

In
    submissions before the trial judge delivered his final instructions to the
    jury, counsel for the defence took the position that the evidence gave rise to
    the defence of provocation and that the trial judge was obliged to put the
    defence to the jury.  The trial judge rejected that submission and did not
    leave the defence of provocation with the jury.  He later gave reasons for his
    refusal to leave the defence:
R. v. Dupe
, 2011 ONSC 3316, 94 W.C.B.
    (2d) 714.

[74]

In
    his reasons, the trial judge correctly observed that he was required to put
    provocation to the jury if the evidence, considered in its totality, gave an
    air of reality to that defence even though the defence had not been advanced
    at trial (at para. 24).  The trial judge also identified the essential
    elements of the provocation defence by framing four questions, at para. 29:

·

Is there evidence of a wrongful act or insult?

·

Is there evidence that the wrongful act would deprive an ordinary
    person of self-control?

·

Is there evidence that the wrongful act actually deprived the
    accused of his self-control?

·

Is there evidence that the accused reacted to the wrongful act
    quickly and before there was time for his passion to cool?

[75]

The
    defence was only available if the jury, on a reasonable view of the entirety of
    evidence, could have a doubt on each of the factual findings implicit in the
    four questions posed by the trial judge.  He concluded that there was some
    evidence upon which a jury could have a doubt on the first question.  The
    appellant testified that Mr. Groulx came at him with a board, although on the
    appellants evidence, it is unclear whether this happened after or before the
    appellant had killed Ms. Smith.  On a generous reading, Mr. Groulxs actions
    could constitute a wrongful act or insult for the purposes of the provocation
    defence (at para. 31).  The trial judge went on to hold that there was no evidentiary
    basis upon which the jury could have a doubt in respect of the facts underlying
    any of the other three elements of the provocation defence (at paras. 37-55).  Accordingly,
    he declined to leave the defence with the jury.

[76]

Nothing
    in the appellants testimony suggested he acted under provocation as defined in
    s. 232 of the
Criminal Code
when he killed Ms. Smith.  The expert
    evidence called by the defence claimed that the appellant did not have the
    capacity to form the intent required for murder.  That evidence contradicts a
    provocation defence which presumes the intent required for murder.  There can,
    however, be an air of reality to a provocation defence even when that defence
    runs inconsistent with the position advanced in the defence evidence at trial: 
    see
R. v. Buzizi
, 2013 SCC 27, [2013] 2 S.C.R. 248; and
R. v. Gill
,
    2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21.  The position of the defence
    is, however, part of the context in which the air of reality test should be
    applied to the totality of the trial evidence:  see
R. v. Faid
, [1983]
    1 S.C.R. 265, at pp. 278-79; and
R. v.

Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53.

[77]

In support of the claim that provocation should have been left with the
    jury, counsel relies heavily on the appellants statement to the police after he
    killed Ms. Smith.  The appellant told the police that he lost it.  Counsel
    combines this utterance with the appellants trial evidence that Mr. Groulx
    approached him holding a piece of wood over his head to produce a wrongful act (Mr.
    Groulxs conduct) and a loss of control by the appellant (the appellants
    statement to the police).  However, nothing in the evidence is capable of
    connecting any loss of control by the appellant to Mr. Groulxs alleged misconduct.

[78]

Counsels
    argument focuses on individual pieces of evidence considered in isolation.  The
    availability of the defence of provocation requires an examination of the
    totality of the evidence in the context of the entire trial.  It is not enough that
    a minute parsing of the evidence reveals bits and pieces of evidence that are
    consistent with some aspects of the provocation defence:  see
Cinous
,
    at paras. 47-61; and
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at
    para. 21.

[79]

As
    explained in
R. v. Thibert
, [1996] 1 S.C.R. 37, at para. 33, a trial
    judges decision not to leave a defence with a jury is entitled to some
    deference on appeal.  The trial judges careful analysis of the evidence and
    the governing legal principles fully support his conclusion that there was no
    air of reality to the defence of provocation.  I would not interfere with his
    ruling.


VI



conclusion

[80]

For
    the reasons set out above, I would allow the appeal and direct a new trial on
    the charge of second degree murder.

Released: DD  SEP 02 2016

Doherty J.A.

I agree K. Feldman J.A.

I agree David Brown J.A.





[1]

Counsel in oral argument abandoned a fourth ground of appeal
    relating to the 
Vetrovec
 instruction to the
    jury.



[2]

The appellant, in his evidence, admitted to grabbing Ms. Smith
    by the shirt on one occasion (
supra
, para. 19). 
    The trial judge was of course unaware of that evidence when he ruled on the admissibility
    of the hearsay evidence.


