Supreme Court
Decision Information
Ruling on Admissibililty of Out of Court Utterances
Decision Content
R v. K.M., 2016 NWTSC 14 Date: 2016 03 23 Docket: S-1-YO-2014-000005
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN
-and- K.M. (A Young Person)
Publication Ban: Information contained herein is prohibited from publication pursuant to ss. 110 and 111 of the Youth Criminal Justice Act and pursuant to s. 28 of the Youth Criminal Justice Act.
RULING ON ADMISSIBILITY OF OUT OF COURT UTTERANCES I) INTRODUCTION [1] K.M. was charged with the murder of Charlotte Lafferty in Fort Good Hope on March 22, 2014. His jury trial proceeded in January and February 2016 and he was found guilty.
[2] A voir dire was held in advance of the trial to determine the admissibility of two out-of-court statements that D.K., K.M.'s mother, was alleged to have made the morning Charlotte Lafferty died.
[3] The first out-of-court statement consists of things D.K. allegedly told K.M. when he came home that morning, and were overheard by Joseph Turo. The gist
Page 2 of that alleged utterance is D.K. asking her son why he had blood on him and telling him he was not supposed to be drinking because he was on conditions.
[4] The second out-of-court statement stems from a telephone conversation that Aurora McNeely says she had with D.K. later that same morning. By then, word was out that a girl had been found dead behind the elders' complex in Fort Good Hope. The gist of the alleged utterance is D.K. telling Ms. McNeely that she was worried that K.M.'s girlfriend might be the person who was found dead because he had come home with blood on him that morning.
[5] The voir dire into the admissibility of the utterances proceeded in August 2015. Before the start of the trial, I ruled the evidence of both out-of-court utterances admissible, with reasons to follow. These are my reasons for concluding that the evidence was admissible.
II) THE EVIDENCE ADDUCED AT THE VOIR DIRE [6] The Crown called a number of police officers who had dealings with D.K. during the investigation into Charlotte Lafferty's death. The Crown also called D.K., Joseph Turo, and Aurora McNeely. Admissions were made about the evidence of three other witnesses: C.K. (K.M.'s father), Diane Manuel, and Bobby Manuel).
a. Evidence of police witnesses [7] The police officers called were Cpl. Brendan Humbke, Cst. Gregg Garrett and Sgt. Ken Pike. These officers all had, at one point or another, contact with D.K. in relation to this matter.
[8] Sgt. Pike was stationed in Fort Good Hope when Charlotte Lafferty died. He knew everyone in the community including D.K. He saw her relatively frequently because at the time, she worked at the band office and Sgt. Pike often had occasion to go there.
[9] Sgt. Pike attempted to obtain a statement from D.K. on March 25, 2014. Her answer was "not at this time". Sgt. Pike understood from this that she would not be providing a statement.
[10] Sgt. Pike was present when K.M. was arrested at his parents' residence. Police also had a search warrant for the residence. Sgt. Pike testified that as he was explaining the search warrant to C.K. and D.K., D.K. asked why police were always picking on her son. She also said that he had done nothing wrong.
Page 3 [11] Sgt. Pike also testified about an unrelated occurrence when D.K. had called the Fort Good Hope detachment of the R.C.M.P. to ask that her son be removed from the residence because he was intoxicated, causing trouble and wanting to fight. Sgt. Pike testified that police attended the residence and determined that it was evident there was an issue and that K.M. needed to be removed from the residence. As the officers were placing him under arrest, D.K.'s demeanour changed: she did not want her son to be arrested. She was questioning why the officers were arresting him and was telling them not to be rough with him. Sgt. Pike found this odd given that she was the one who had sought the police's assistance and requested their attendance at her residence.
[12] Cst. Gregg Garrett testified that he tried to obtain a statement from D.K. on March 24 and 26, 2014. She declined both times, saying she was too stressed out about these events.
[13] Cst. Garrett also described D.K.'s actions during the investigators' attempt to obtain a warned statement from K.M. D.K. and her husband were both present in the interview room. Cst. Garrett testified that D.K. physically stood very close behind her son, rubbing his back and shoulders during the entire interview. He also testified that on a number of occasions, she answered the questions that were directed at K.M.
[14] Cpl. Humbke testified that he attempted to obtain a statement from D.K. in Yellowknife in early September 2014. She declined to do so. Cpl. Humbke had contact with her again in August 2015 when he attended her apartment to serve her with the subpoena in preparation for the August voir dire. After having explained the subpoena to her, he asked if he could speak to her again to take a statement. He was standing in the hallway outside the apartment at the time. D.K. simply closed the door.
b. Evidence of D.K. [15] D.K. was called by the Crown. She testified that during the evening of March 21, 2014 she drank beer. She took two sleeping pills. She went to bed at around 11:00PM or 12:00PM and slept right through the night until 9:00AM or 9:30AM. When she woke up the next morning, Diane Manuel and Bobby Manuel, who are relatives, were in her house. Joseph Turo was not there.
[16] That morning, she heard activity on a police scanner that she had in her home. From what she heard, she knew something had happened in the community.
Page 4 She had a telephone conversation with her cousin Aurora McNeely. They decided to go for a drive around the community. This was around lunch time.
[17] D.K. also said she spoke on the phone with Louisa Lafferty, Charlotte's mother, that morning. Louisa was looking for Charlotte and wanted to come to talk to K.M. about where he had last seen her. D.K. testified that Louisa Lafferty came to her house. D.K. went to get her son. He and Louisa had a conversation but D.K. was not part of the conversation and does not know what was said between them.
[18] Apart from her telephone conversation with Aurora McNeely and the phone call she received from Louisa Lafferty, D.K. did not receive any other phone calls that morning, nor did she make any. She said she had no need to call anybody.
[19] D.K. acknowledged that she and Aurora McNeely were close at the time of these events. D.K. said that she sometimes confided in Ms. McNeely.
[20] During D.K.'s Examination in Chief, the Crown made application to have her declared an adverse witness pursuant to section 9(1) of the Canada Evidence Act. After having heard submissions from counsel, I granted that application. I gave the Crown leave to cross-examine D.K. about the things she was alleged to have said, and about whether she saw blood on K.M. that morning.
[21] D.K. denied seeing blood on her son or in the house that morning. She maintained she slept through the night until she woke up at 9:00AM or 9:30AM. She denied asking her son anything about blood that morning or saying anything to him about being on conditions. She also denied saying anything to Aurora McNeely about having seen blood on K.M., or about being worried that his girlfriend might be the girl who was found dead that morning.
[22] D.K. confirmed that at the time of these events, she was aware that her son was on conditions not to drink alcohol.
c. Evidence of Joseph Turo [23] Joseph Turo testified that in the early morning hours on March 22, 2014, he had been driving back from High Level with Bobby Manuel, Linda Manuel, and three of their children. They were on their way back to Colville Lake and stopped in Fort Good Hope to try to find more gas because they were concerned they may not have enough to make it to Colville Lake. They went to the residence of D.K. and C.K. This was not something that had been arranged in advance.
Page 5 [24] Mr. Turo said they arrived at the K. residence between 4:00AM and 5:00AM. Both C.K. and D.K. got up when they arrived. They talked for a while. Thirty to forty minutes later, he, Bobby Manuel and C.K. went driving around in the community to try and find some gas.
[25] Their attempts to find gas were unsuccessful. They returned to the K. residence at around 6:00AM. Linda Manuel and the children were already sleeping in the living room. He did not see D.K. at that point. He assumed that she had gone to bed. Mr. Turo laid down in the living room, in front of the wood stove, and fell asleep.
[26] Mr. Turo woke up to hearing D.K.’s voice saying something. The voice was coming from the bathroom. His evidence about what he heard was as follows:
Q. can you tell us the words that she used? A. Telling [K.] why he had blood on his hands and why is he drinking. He's supposed to not be drinking. Wash up and go back to your room, to sleep.
th Transcript of Voir Dire held August 24 and 25th, 2015, p.80, lines 16-20. [27] Later in his evidence, he testified he also had heard D.K. refer to the fact that K.M. was on conditions not to drink.
[28] Mr. Turo testified that his hearing is good. He had not consumed any alcohol that day or night. He was not aware that K.M. was on any conditions prohibiting him from consuming alcohol.
[29] Mr. Turo got up, along with everyone else, at around 9:30AM. At some point after everyone got up, the news came that a girl had been found dead in the community. He remembers D.K. being on the phone, asking for Gloria and asking where Lyla was. He knew Lyla to be K.M.'s girlfriend at the time. Mr. Turo was under the impression that D.K. was speaking with Lyla's mother, Gloria Tobac. Mr. Turo said that D.K. and Linda Manuel were on the phone that morning, but he does not know who they were talking to. He said they were phoning around, wondering who was the girl who had been found dead.
[30] Mr. Turo went to his sister's for breakfast. He told her what he had overheard D.K. say to K.M. She told him to tell somebody. After breakfast, Mr. Manuel picked him up at his sister's. They stopped by the K. residence briefly and then left for Colville Lake.
Page 6 [31] Mr. Turo acknowledged that he did not tell police immediately what he knew. He was asked why, and answered as follows:
I didn't think it was important 'cause there are two eyewitnesses. I figured why put a statement? Mind my business, I guess. I don't want to be involved in stuff like this. Just don't want to be involved.
th Transcript of Voir Dire held August 24 and 25th, 2015, p.90, lines 5-9. [32] On cross-examination Mr. Turo acknowledged that when police first spoke to him he told them he "fell asleep hard". He also admitted telling them that he never heard D.K. say anything about blood. He also acknowledged that when he did tell the police what he heard, he never said anything about having heard D.K. tell her son to wash up or go back to his room.
[33] He confirmed, as well, that he did not see any blood in the K. residence at any time that morning.
d. Evidence of Aurora McNeely [34] Aurora McNeely is related to Charlotte Lafferty through her husband; Charlotte was his niece. Ms. McNeely also grew up as D.K.’s cousin, even though they are not related by blood. She and D.K. were very close in March 2014, and that they talked every day. After these events, D.K. and C.K. moved to Yellowknife. Since then, Ms. McNeely has had very little contact with D.K.
[35] The morning that Charlotte Lafferty was found dead, Ms. McNeely woke up when her daughter Natalie came home just after 7:00AM. Natalie had her grandfather's dog with her. Ms. McNeely phoned her father to tell him that his dog was at her house and he should come pick it up. Ms. McNeely thinks she phoned her father at about 7:30AM. Her father said he would warm up his truck and come pick up his dog.
[36] When her father arrived at her house he told Ms. McNeely that it took him longer to make the drive because the main road was blocked off near the elders' complex. He also told her that someone had been found hurt behind the elder's complex.
[37] Ms. McNeely explained that there were several phone calls being made by various people that morning once this news started to spread. People were trying to find their daughters.
Page 7 [38] Ms. McNeely said she phoned D.K. after 8:00AM and they talked about what was happening. They eventually decided to go for a drive.
[39] During that drive, they passed by the residence of Lyla Tobac's parents. They saw a lot of vehicles there. Ms. McNeely explained that in the community, when there is a death in a family, community members immediately go to the family to provide comfort. When she and D.K. saw those vehicles at the Tobac residence, they thought their daughter Lyla may be the one who had died.
[40] Ms. McNeely said that immediately after they drove past the Tobac residence and saw all these vehicles, D.K. told her she wanted to go home. Ms. McNeely drove her back to her house.
[41] Ms. McNeely said that D.K. phoned her approximately an hour later and told her she was worried and scared because her son had blood on him when he came home and that she thought maybe Lyla Tobac was the girl who had been found dead at the elders' center.
[42] She said D.K. then told her she was going to go ask her son about this. Ms. McNeely described what happened afterwards as follows:
A I was still on the phone with her and she was trying to wake up her son and then – I couldn’t hear him, but I could hear her telling – asking him why he had blood on him and he told her that the Lennie boys were trying to fight with him. Q Did you hear him say that? A No, I just heard her asking him and then she told me, and I was still on the phone with her when she was talking to him.
Transcript of Voir Dire held August 24th and 25th, 2015, p.127, lines 14-22. [43] Ms. McNeely did not hear K.M. say any words during this exchange. She only heard a voice mumbling. But given what D.K. was saying, her understanding was that she was speaking with her son.
[44] Ms. McNeely was asked who the phrase "the Lennie boys" refers to. She explained that a couple in Fort Good Hope, Jerry and Regina Lennie, have four or five boys who are commonly known in the community as "the Lennie boys".
[45] On cross-examination Ms. McNeely confirmed she never heard any actual words from the person D.K. was speaking to. She could only hear someone mumbling.
Page 8 [46] She also acknowledged that when she spoke with police about this on March 23, 2014, she did not say anything about having gone for a ride with D.K. on the morning of March 22, 2014.
e. Admissions regarding the evidence of C.K., Bobby Manuel and Linda Manuel
[47] As I already mentioned, the evidence of C.K., Bobby Manuel and Linda Manuel was introduced at the voir dire by way of an Agreed Statement of Facts.
[48] C.K.'s evidence would have been that Bobby Manuel, Linda Manuel, their children, and Mr. Turo arrived at the K. residence at around 4:00AM on March 22, 2014. C.K. was the only one who got up. D.K. was sleeping and did not get up when they arrived. She also did not get up when they returned at the house after having gone out to look for gas.
[49] Bobby Manuel would have testified that he, his wife, children and Mr. Turo arrived at the K. residence at around 4:00AM on March 22, 2014, and that he only saw C.K. there when they arrived. He, Mr. Turo and C.K. drove around the community to look for gas and returned to the K. residence at around 6:00AM.
[50] Linda Manuel would have testified that she, her husband, her children, and Mr. Turo, arrived in Fort Good Hope at around 3:30AM or 3:40AM on March 22, 2014, and went to the K. residence. D.K. was sleeping and only C.K. was up. Phone calls were made to try to find gas. She fell asleep. The next morning, she got up and went outside to start her truck. When she came back inside, C.K., D.K. and Mr. Turo were up.
III) ANALYSIS A. Whether the utterances were made [51] The first issue that I must decide is whether the Crown has established, on a balance of probabilities, that the out-of-court statements were made. R. v. Redford 2014, ABCA 336, Paragraphs 14-19.
[52] The determination of that issue depends on the assessment of the credibility of D.K., Joseph Turo and Aurora McNeely.
[53] I found Mr. Turo and Ms. McNeely to be credible witnesses. Neither of them has any reason to lie about what they heard. Mr. Turo described himself as a lifelong friend of C.K. He has no reason to lie about that. And given that
Page 9 relationship, he has no reason to fabricate a story that would potentially incriminate his friend's son.
[54] Mr. Turo testified that he did not want to be involved in this matter. He said at the very start of his testimony that he did not really want to be in Court talking about this but understood that he had to answer questions.
[55] He admitted that he was not truthful with police initially when they asked him about what he knew. He appeared to have been under the impression that the police had two eyewitnesses to Charlotte Lafferty's killing. I infer from this that he must have heard about the two elders who phoned police at the time of the assault. Mr. Turo's initial dishonesty with the investigators does not reflect well on him. However, I accept his explanation for why he was not initially truthful with police, and that he later realized he should tell them what he heard.
[56] Mr. Turo was, more likely than not, mistaken about D.K. having been up after he and the Manuel family first arrived at the K. residence on March 22. His evidence is contradicted by D.K. and by the agreed evidence of the three other people who were there. I do not find that this mistake calls into question his credibility, or the reliability of his evidence about what he overheard later that morning. Overhearing D.K. asking her son why he had blood on him is something he would be far more likely to remember than the details of who was awake or sleeping when he and the Manuel family arrived at the K. residence at 4:00AM.
[57] There are also some inconsistencies in Mr. Turo's accounts of what he heard D.K. say that morning. Again, I do not find these inconsistencies are a reason to reject his evidence about the gist of what he heard: D.K. asking her son why he had blood on him. Considering the circumstances of him hearing this utterance, including the fact he just woke up to it, it would be more surprising, and less credible perhaps, if he had a crystal clear, exact word-for-word account of everything said. There are also inconsistencies about which light or lights were on in the house at the time he woke up. Again, I find those of little significance in the assessment of his credibility and the reliability of his evidence about what he overheard that morning.
[58] Mr. Turo was cross-examined about whether he "fell asleep hard" that morning, as he had initially told police. He admitted that he was tired from the long drive and the late hour, but said that he is used to having to wake up quickly when he is out on the land.
[59] Mr. Turo was not aware that K.M. was on conditions on March 22, 2014. That being the case, he could hardly fabricate having overheard something about
Page 10 K.M. being on conditions. And the risk of misconstruing what he heard might be greater if he had been aware that K.M. was on conditions not to drink.
[60] I have carefully considered the inconsistencies in Mr. Turo's evidence but conclude that his account of what he heard that morning is credible and reliable.
[61] I also found Aurora McNeely credible as a witness. She is related to Charlotte Lafferty but was also very close to D.K. at the time. Both she and D.K. said that. She would have no reason whatsoever to fabricate this story about her interactions and conversations with D.K. that morning.
[62] The only real inconsistency in her evidence is that she did not mention, in her statement to the police, having gone for a drive with D.K. that morning. D.K. agrees that they went for that drive so I find that inconsistency in Ms. McNeely's evidence is without consequence. And again, as a matter of common sense, and especially in the context of what was happening that morning in Fort Good Hope, her conversation with D.K. about seeing blood on her son could be expected to stick in Ms. McNeely’s memory far more than other conversations that she and D.K. may have had or things they might have done that morning.
[63] Ms. McNeely's account of what took place (multiple phone calls being made, driving around to try to find out what happened), makes sense in the context of what was unfolding in the community that morning. So is her evidence about seeing a lot of vehicles at the Tobac residence and the concern this raised in her mind about Lyla Tobac being the girl who had died.
[64] Ms. McNeely was unshaken on cross-examination. I found her to be a credible witness and a reliable witness.
[65] By contrast, I find that there are several problems with D.K.'s evidence. [66] First of all, unlike Mr. Turo and Ms. McNeely, she has a very compelling reason not to be truthful about what she saw and said that morning. Her son is facing a first degree murder charge, the most serious offence in the Criminal Code. The evidence shows that she is very close to him. It also shows, and perhaps this is not surprising, that she is very protective of him. This is demonstrated through the evidence about her behaviour when police were attempting to take a statement from K.M., but also from the other dealings police had with the family, as recounted by Sgt. Pike.
[67] It is certainly D.K.'s right not to provide a statement to police or assist the authorities in their investigation. It may even be understandable that she would be
Page 11 reluctant to assist police in an investigation involving her son. But her unwillingness to provide a statement certainly confirms where her loyalties lie on this matter.
[68] D.K.'s close relationship with her son may not be, on its own, a reason to reject her evidence. But quite apart from that, I found there were several problems with her testimony. I found her evidence seemed deliberately crafted and tailored to distance herself from anything that might lend credence to the evidence of Mr. Turo and Ms. McNeely. And in some respects, I found what she said curious and implausible.
[69] For example, she denied Mr. Turo even being in her home that morning. Every other witness places Mr. Turo there. I find it curious that she would not have a memory of this person being in her house that morning, especially since the K.'s were not expecting visitors and there is no evidence that Mr. Turo was a regular visitor at their home. It is curious that she remembers the Manuel family being there that morning, but not Mr. Turo. She also denied Mr. Turo being close to her husband. She appeared to be trying to place as much distance as possible between her family and Mr. Turo.
[70] Another curious thing about D.K.’s evidence has to do with her answers when she was asked about “the Lennie boys”. Aurora McNeely explained that this is how the sons of Jerry and Regina Lennie are commonly referred to in Fort Good Hope. D.K. said she was aware of this family but had never heard the sons being referred to as "the Lennie boys". In the context of this small community, I find this surprising. I conclude, again, that this was a very deliberate attempt to distance herself from the things Aurora McNeely said about their telephone conversation that morning.
[71] Mr. Turo testified that D.K. and Linda Manuel were on the phone that morning, trying to figure out which young girl had died. This is consistent as well with Aurora McNeely's description of what was going in the community that morning.
[72] D.K.’s version is quite different. She acknowledged speaking on the phone with Aurora McNeely and Louisa Lafferty, but no one else. She denied making or receiving multiple calls. She said "I wouldn’t do that. I had no need to".
[73] It makes far more sense that people in Fort Good Hope would be phoning one another, looking for their daughters and their friends' daughters, trying to find out what happened, and who had died. News of a young woman being found dead
Page 12 would generate great concern in any community, but it especially would in a community the size of Fort Good Hope.
[74] In the context of a morning where news was spreading in the community that a young woman had been found dead, D.K.'s evidence seems at odds with common sense. I find that she was deliberately downplaying any concern she might have felt that morning about who the deceased young girl might be. This raises the question of why she would feel a need to do that.
[75] D.K. is alleged to have made two out-of-court utterances. The evidence about these utterances comes from two different people, are said to have occurred at different times, and are consistent on one key fact that D.K. denies: that she saw blood on her son that morning. It would be a remarkable coincidence, or the product of an unlikely conspiracy, for two people to report that D.K. said, at different times and in different ways, things that are so consistent with one another.
[76] That is especially so given that there is no suggestion of collusion between Ms. McNeely and Mr. Turo. There is no evidence that they ever spoke with each other about these events.
[77] It is highly implausible that these two people would have separately fabricated what they heard. It is also highly implausible that they both misconstrued or misunderstood what they heard, given the consistency of the subject matter of the utterances.
[78] I reject D.K.'s evidence. I conclude that her evidence was a desperate attempt to protect her son at all costs. On the basis of Joseph Turo and Aurora McNeely's evidence, I am satisfied on a balance of probabilities that D.K. made the out-of-court utterances that they testified about.
B. Admissibility [79] The out-of-court utterances of D.K. are presumptively inadmissible, through the testimony of other witnesses, for the truth of their content.
[80] With respect to the utterances overheard by Mr. Turo, the Crown relies on the traditional res gestae exception to the rule that prohibits the admission of hearsay. Alternatively, the Crown relies on the principled exception to the inadmissibility of hearsay. As far as the evidence of what D.K. told Aurora McNeely, the Crown argues it is admissible under the principled exception to the inadmissibility of hearsay.
Page 13 a. Legal framework [81] The legal framework that applies to the admissibility of this evidence is well established:
Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
R. v. Mapara [2005] 1 S.C.R. 358, Paragraph 15. b. Out-of-court utterance overhead by Mr. Turo [82] The traditional res gestae exception has been examined in a number of cases, including cases from this jurisdiction. It has survived scrutiny when examined under the lens of the overriding considerations that govern the principled approach to the admissibility of hearsay. R. v. Courouble 2012, NWTSC 8; R. v. Paulette 2014, NWTSC 14.
[83] That is not particularly surprising, considering the reasons why utterances that meet the res gestae criteria were admissible before the principled approach to the admissibility of hearsay was developed. Reliability figures prominently in the analysis under the principled approach. Spontaneous utterances have traditionally been admissible in large measure because of their inherent reliability:
The res gestae doctrine constitutes a principled exception to the hearsay rule and one that has passed the test of time – both before and after the principled approach to hearsay was introduced into our jurisprudence. Res
Page 14 gestae statements are often referred to as “spontaneous utterances” made contemporaneously, or close to contemporaneously, with the event that forms the subject matter of the declaration. Their reliability rests on the belief that, owing to the contemporaneity requirement, there has been no time for concoction or fabrication.
Exact contemporaneity is not required. Rather, the entire circumstances are assessed to determine whether the subject statement is proximate enough to the event to meet the guarantees of trustworthiness: R. v. Head, 2014 MBCA 59 at para. 30. As noted by Dubin J.A. (as he then was) in R. v. Clark (1983), 7 C.C.C. (3d) 46, [1983] O.J. No. 3125 (C.A.) at paras. 34-35, leave to appeal refused [1983] S.C.C.A. No 253, 42 O.R. (2d) 609n, the key is to address whether the declaration is sufficiently contemporaneous so as to “exclude the possibility of concoction or distortion”. See also: R. v. Shea, 2011 NSCA 107 at para. 64, leave to appeal refused [2012] S.C.C.A. No. 298; R. v. Sylvain, 2014 ABCA 153 at para. 31 [Sylvain].
R. v. Brown, 2015 ONSC 4121, Paragraphs 32-33. [84] In my view, the utterance overheard by Mr. Turo fall squarely within the res gestae rule.
[85] Seeing blood on her son that morning and finding out he was not complying with his conditions would be a disturbing thing for D.K. Her immediate and spontaneous reaction to this, as overheard by Mr. Turo, has the hallmarks of reliability. The utterance was overheard as it was being made. There is no suggestion D.K. was even aware that she was being overheard. And D.K. would have no reason to say these words unless K.M. did have blood on him.
[86] K.M. does not argue that the criteria for admission under the res gestae rule are not met. He argues that this is one of those rare cases, evoked in Mapara, where the evidence ought not to be admitted even if the res gestae prerequisites are met because there are overriding concerns about the reliability of this evidence. He points out that Mr. Turo did not hear the full conversation, and did not hear any reply from the person D.K. was speaking to. Therefore, K.M. argues, important context is missing to properly understand and interpret D.K.’s utterance. K.M. also argues that the circumstances under which Mr. Turo overheard this utterance make his evidence about the utterances inherently unreliable: he was sleeping just before he heard this, he was tired from the long drive and the search for gas in the community, he woke up to the utterance and went back to sleep shortly thereafter.
[87] I disagree with those submissions. I find that there are hallmarks of reliability in Mr. Turo's account despite these issues. I have already referred to
Page 15 many of these, as they were part of why I concluded that his evidence was credible and should be accepted in the first place. But there are other factors that in my view, enhance the reliability of this evidence.
[88] The content of what Mr. Turo says he overheard includes a fact that is true (that K.M. was on conditions at the time), and was not otherwise known to Mr. Turo.
[89] The voice that Mr. Turo heard was the voice of someone he knew. The only other adult female in the house at the time was Ms. Manuel. She was asleep in the living room, close to where Mr. Turo was. There is no realistic possibility that Mr. Turo was mistaken about whose voice he heard.
[90] In addition, as already noted, D.K. would have no reason to say something that would incriminate her son. From her perspective, the utterances are a declaration against interest. This bolsters their reliability.
[91] Very importantly, D.K. was called at the voir dire. At the time of the voir dire the Crown indicated that if the utterances were ruled admissible, she would be called at trial (and she was). The trier of fact heard what D.K. had to say about the out-of-court utterances she was alleged to have made. This addresses one of main concerns about admitting out-of-court utterances (the trier of fact not having the benefit of hearing from the declarant).
[92] I am satisfied that the utterance overheard by Mr. Turo meets the requirements to render it admissible under the res gestae exception to the inadmissibility of hearsay. I am not satisfied that there are any reliability concerns, or any other concerns, that make this one of the exceptional situations, evoked in Mapara, where evidence that meets the res gestae requirements should nonetheless be ruled inadmissible.
[93] I am also satisfied that, in any event, the utterances overheard by Mr. Turo are admissible under the principled approach to the admissibility of hearsay.
[94] Necessity was conceded by Defence, given D.K.’s testimony that she did not in fact made the utterances in question. This concession is consistent with the well-established principle that the criterion of necessity can be met even in situations when the declarant is available to testify. Necessity is made out when the evidence is not available from the declarant. This can mean that the declarant is not available to testify, or is unable to testify for whatever reason, but it can also mean that the declarant is available to testify but unwilling to provide the evidence.
Page 16 A classic example of this scenario is that of the recanting witness, as arose in R. v. B.(K.G.) [1993] 1 S.C.R. 740.
[95] Given my conclusion that the utterances were in fact made, D.K.'s refusal to acknowledge that she made them establishes necessity.
[96] The second criterion to be met is that of reliability. In deciding whether out-of-court utterances are admissible, it is not the Court's role to determine ultimate reliability. That issue is for the trier of fact. R. v. Khelawon [2006] 2 R.C.S. 787, Paragraph 93.
[97] As I noted above at Paragraphs 88 to 91, there are a number of indicia of reliability about the circumstances under which these utterances were overheard by Mr. Turo. These indicia are highly relevant in determining whether the criterion of threshold reliability is met.
[98] In addition, the subject-matter of the utterance that Mr. Turo overheard is corroborated by other evidence, and includes things that he was not aware of at the time he heard the utterance. The result of the forensic examination of certain items seized from K.M. revealed the presence of blood on his belt and on one of his shoes.
[99] Moreover, what Mr. Turo overheard is consistent with the conversation D.K. had with Aurora McNeely: both suggest that D.K. saw blood on K.M. that morning.
[100] I reject the suggestion that what Mr. Turo heard was ambiguous. He may not have heard the complete conversation, but at the same time, the situation in this case is entirely different from the one that arose in in R. v. Ferris [1994] 3 S.C.R. 756, where a witness had only heard a few words ("I killed David") of a longer conversation. In that case, the words heard gave rise to several possible interpretations and a wide range of meanings, depending on what was said before and after. The same cannot be said about what Mr. Turo heard D.K. say to her son that morning.
[101] In my view, the issues raised by K.M.'s counsel about the circumstances under which Mr. Turo overheard the utterance; the fact that he was sleeping immediately before he heard D.K. say these things; things that may have affected his ability to actually hear what was being said and identify the speaker; and his credibility and reliability as a witness arising from prior inconsistent statements, are all matters that have to do with the ultimate reliability of the utterances. These are, in my view, issues for the trier of fact.
Page 17 [102] I am mindful that even when the criteria for admissibility are met, the Court has a residual discretion to exclude evidence if its prejudicial effect outweighs its probative value.
[103] There is no question that the evidence is prejudicial to K.M. It is evidence that he had blood on him when he returned home that morning. But it is also highly probative, considering that the timing of the attack on Charlotte Lafferty, which is established with some precision through the calls for assistance that were made to the R.C.M.P. while the assault was still ongoing.
[104] The Crown's case on the issue of identification is entirely circumstantial. In that type of case every item of circumstantial evidence matters. Although Ms. Lafferty's D.N.A. was identified on certain items seized from K.M., the D.N.A. results were not the subject of admissions at trial. That evidence was subject to being weighed by the jury. In addition, the forensic testing was done on items seized from K.M. several hours after Ms. Lafferty's death, whereas the utterance overheard by Mr. Turo would have been made much earlier, and much sooner after she was killed.
[105] Given this, the utterances Mr. Turo overheard are highly probative. Their probative value is not, in my view, outweighed by their prejudicial effect.
c. Out-of-court utterances made by D.K. to Aurora McNeely [106] As noted above, in arguing that Aurora McNeely's account of what D.K. said to her in their telephone conversation was admissible for its truth, the Crown relied on the principled exception to the inadmissibility of hearsay.
[107] Again, in light of D.K.’s denial that she said those things to Ms. McNeely, the necessity criterion is met, and this was conceded by Defence.
[108] At Paragraphs 73 to 75, I explained why I found Ms. McNeely's account of the events of that morning more plausible than D.K.'s account. There is a distinction between plausibility and reliability, however. But in my view, there are several indicia of reliability relating to the things that Ms. McNeely says D.K. told her.
[109] Seeing her son come home with blood on him that morning could be expected to be an upsetting event for D.K. And the following morning, as news was spreading in the community that a young girl had been found dead, it could be expected that she would become even more concerned. Ms. McNeely and D.K.
Page 18 were close at the time of these events. D.K. acknowledged that she sometimes confided in Ms. McNeely. That being so, it makes sense that D.K. would have shared her concerns about what she saw that morning with Ms. McNeely. It also makes sense that she would appear, as Ms. McNeely described, scared and worried as she talked about these things. There would be no reason for D.K. to lie to Ms. McNeely about seeing blood on her son that morning. Under the circumstances, the contrary is true.
[110] There is no evidence suggesting any motive for Aurora McNeely to fabricate or misrepresent what D.K. told her.
[111] As far as the aspect of the conversation that pertained to "the Lennie boys", Aurora McNeely did not actually hear K.M.'s words in response to D.K.'s questions that morning. All she heard was someone mumble. But in the context of the conversation, it seemed clear to her that D.K. was speaking with her son.
[112] In my view, it does not matter that Ms. McNeely could not make out what the person D.K. was speaking to was saying, or, for that matter, that Ms. McNeely never actually heard K.M.'s voice to the point of being able to recognize it. What the Crown seeks to adduce in evidence for its truth is the utterance of D.K. There is no question that Ms. McNeely knows that she was speaking to D.K. If the trier of fact accepted Ms. McNeely's evidence about how the conversation went, it could certainly infer that D.K. spoke with her son during the telephone call with Ms. McNeely. The fact that Ms. McNeely did not hear K.M. say specific words does not matter.
[113] Other indicia of reliability about the out-of-court utterances that Ms. McNeely testified about are similar to those that I referred to in the context of the analysis of the threshold reliability of the utterances overheard by Mr. Turo. The subject-matter of the utterances made by D.K. to Ms. McNeely is consistent with other evidence.
[114] Ms. McNeely's account that D.K. expressed concern about Lyla Tobac being the deceased girl fits with the overall context: D.K. knew a young girl had been found dead; she and Ms. McNeely had seen several vehicles parked at the Tobac residence that morning. This, according to Ms. McNeely, is consistent with what happens when there is a death in a family, because community members go to the family home to provide comfort to those affected by the death.
[115] The subject-matter of the utterance (the presence of blood on K.M. that morning) fits with the utterance overheard by Mr. Turo, as well as with some of the forensic testing results on items seized from Mr. McNeely.
Page 19 [116] Given these indicia of reliability, which in my view are quite compelling, the criterion of threshold reliability is met.
[117] Finally, with respect to the residual discretion to exclude otherwise admissible evidence when its prejudicial effect outweighs its probative value, I find, as I did with respect to the utterance overheard by Mr. Turo, that while this evidence is prejudicial to K.M., it is also highly probative in all of the circumstances. The subject matter of this evidence is the same as it is for Mr. Turo's evidence (K.M. having blood on him that morning when he came home) and is highly probative for the same reasons. That probative value is not outweighed by the prejudicial effect of the evidence.
[118] The evidence is probative in another respect. It includes an explanation given by K.M. about why he had blood on him. In the event that the Crown presented evidence at trial refuting this explanation (and at trial, the Crown did call evidence that there was no fight with the “Lennie boys” the night Ms. Lafferty died), Ms. McNeely's evidence, if accepted, could constitute after the fact conduct that the trier of fact may find indicative of K.M.’s guilt.
[119] This is another reason why Ms. McNeely's evidence about the things D.K. said to her that morning has significant probative value that is not outweighed by its prejudicial effect.
IV) CONCLUSION [120] Those are the reasons why I concluded that the utterances made by D.K. and overheard by Mr. Turo, and the things D.K. told Aurora McNeely the morning that Charlotte Lafferty's body was discovered, were admissible at trial for the truth of their content.
L. Charbonneau J.S.C. rd Dated this 23 day of March, 2016 Counsel for Crown: Annie Piché and Jeannie Scott Counsel for the Young Person: Charles Davison
S-1-YO-2014-000005 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN: HER MAJESTY THE QUEEN -and- K.M. (A Young Person)
Publication Ban: Information contained herein is prohibited from publication pursuant to ss. 110 and 111 of the Youth Criminal Justice Act and pursuant to s. 28 of the Youth Criminal Justice Act.
HONOURABLE JUSTICE L. A.CHARBONNEAU ON THE ADMISSIBILITY OF OUT OF COURT
RULING OF THE UTTERANCES