R. v. Morehouse (I.F.), (2003) 353 A.R. 198 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 24, 2003
• Citations: (2003), 353 A.R. 198 (QB);2004 ABQB 97

R. v. Morehouse (I.F.) (2003), 353 A.R. 198 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MR.016

Her Majesty the Queen v. Ira Frederick Morehouse (accused)

(020470811Q1; 2004 ABQB 97)

Indexed As: R. v. Morehouse (I.F.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

November 14, 2003 and November 24, 2003.

Summary:

The accused was charged with the first degree murder of his estranged wife. At issue on this voir dire was the admissibility of oral statements made by the deceased to 12 witnesses.

The Alberta Court of Queen's Bench determined the admissibility of the statements.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - The Alberta Court of Queen's Bench stated that statements of a declarant through a witness proffered for their truth were hearsay - However, the breadth of this rule might not apply when the statements were tendered by the defence as part of full answer and defence to create a reasonable doubt - See paragraph 19 and footnote 4.

Evidence - Topic 256

Inferences and weight of evidence - Weight - Reliability - The accused was charged with the murder of his estranged wife - The Crown alleged first degree murder on the standard planned and deliberate ground, or, alternatively, by virtue of committing or attempting to commit criminal harassment, with the additional element that the accused intended the deceased to fear for her safety - The Crown sought to have oral statements made by the deceased to 12 witnesses admitted into evidence - The accused submitted that certain of the evidence might be "coloured by close familial ties" - The Crown submitted that there could be no automatic assumption in this regard without evidence, and hinted that this was a matter of ultimate reliability for the jury to weigh - The Alberta Court of Queen's Bench agreed with the Crown's submission - See paragraphs 99 and 100.

Evidence - Topic 1125

Relevant facts - Relevance and materiality - Relevance of evidence offered - General - The Alberta Court of Queen's Bench stated that "Evidence is not irrelevant simply because it can be interpreted in more than one way. It need only be shown that one possible interpretation of the evidence is relevant to an issue at trial. The strength or weight of the evidence is a matter for the trier of fact" - See paragraph 87.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Alberta Court of Queen's Bench stated that "The purpose for which the out of court statement is being offered is critical to identifying the statement as hearsay ... Statements of a declarant through a witness proffered for their truth are hearsay, whereas statements of a declarant through a witness proffered only for the purpose of evidencing that they were said are not hearsay and may be admitted for some other relevant reason. That is, the hearsay rule does not exclude a statement offered as original evidence, viz, for a relevant purpose other than to prove the truth of its contents ... resort to hearsay exceptions is not necessary for statements not proffered for their truth" - See paragraphs 18 and 19.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 128 ].

Evidence - Topic 1525

Hearsay rule - Hearsay rule exceptions and exclusions - General - The Alberta Court of Queen's Bench discussed the interaction between the traditional exceptions to the hearsay rule and the principled approach (hearsay evidence admissible where necessary and reliable, unless probative value outweighed by prejudicial effect) - Evidence falling within traditional hearsay exceptions was presumptively admissible - The burden of proof was on the party challenging the evidence which was otherwise admissible under a traditional exception to show that the evidence nevertheless should not be admitted - Further, the principled approach had primacy - Hearsay evidence could only be admitted if necessary and reliable, and the traditional exceptions were to be interpreted in a manner consistent with this requirement - See paragraphs 74 to 81.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The Alberta Court of Queen's Bench stated that the "principled approach" to the hearsay rule and its exceptions used the twin criteria of necessity and reliability - Under this analysis, a declarant's statements were admissible through the witness for the truth of their contents where the threshold of necessity and reliability were met, and probative value outweighed prejudicial effect - The onus of proving necessity and reliability was on the applicant on a balance of probabilities - The court reviewed the law respecting each criterion - See paragraphs 40 to 67.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The Alberta Court of Queen's Bench stated that "courts have looked at various factors in determining whether hearsay dangers have been overcome. Collectively, these include: a) the absence of a reason and/or motive to fabricate the statement (non-fabrication); b) the timing of the statement in relation to the time of death (timing/remoteness); c) the demeanour of the declarant at the time of the making of the statement (demeanour); d) the spontaneity of the statement (spontaneity); e) the relationship between the declarant and the witness (relationship); f) the detail given in the statement (detail); g) whether the declarant could be mistaken (mistake); and h) 'other'. I have added 'other', because it is clear from the cases that the list of factors is not closed and others may be added as appropriate to the particular circumstances." - See paragraphs 53 and 54.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The Alberta Court of Queen's Bench held that "while ... a long-term, close relationship may be more trustworthy absent any evidence that the evidence may be 'coloured', simply because a statement is made to someone that the declarant does not know as well does not automatically lead to a conclusion that it is not reliable. An example of this reasoning is contained in Van Osselaer [B.C.S.C.]. There, Macaulay, J., held that statements made to strangers had a high degree of reliability, as he could not fathom any reason why the declarant would falsely accuse the Defendant to someone who did not know him." - See paragraph 102.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 256 and first Evidence - Topic 1670 ].

Evidence - Topic 1631

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Statements of present intention - The Alberta Court of Queen's Bench reviewed the law respecting two traditional exceptions to the hearsay rule, the state of mind/present intention exception and the narrative and context exception - See paragraphs 24 to 39.

Evidence - Topic 1668

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements of emotion - The accused and the deceased met in 1999, married in August 2000, and separated on three occasions - In the intervening two periods, the deceased had returned to live with the accused - On April 24, 2002, she was murdered - The Crown alleged first degree murder against the accused on the standard planned and deliberate ground, or, alternatively, by virtue of committing or attempting to commit criminal harassment, with the additional element that the accused intended the deceased to fear for her safety (Criminal Code, ss. 231(6) and 264) - The Alberta Court of Queen's Bench held that statements by the deceased indicating her fear of the accused were very relevant, as going to her state of mind and the context of their relationship - To the extent that the court admitted the deceased's statements to show her state of mind of fear of the accused, the basis for her fear was relevant and admissible - See paragraphs 83 to 85.

Evidence - Topic 1668

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements of emotion - [See first Evidence - Topic 1670 ].

Evidence - Topic 1670

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by victim - The accused was charged with the first degree murder of his estranged wife - At issue was the admissibility of oral statements made by the deceased to 12 witnesses - The Alberta Court of Queen's Bench determined the admissibility of the statements and the purposes for which they were admissible - The court held that many of the statements were not hearsay, but provisionally analyzed their admissibility under the principled exception - See Appendix.

Evidence - Topic 1670

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by victim - The accused and the deceased met in 1999, married in August 2000, and separated on three occasions - In the intervening two periods, the deceased had returned to live with the accused - The last period of cohabitation was from mid-December 2001 to mid-March 2002 - The deceased was murdered on April 24, 2002 - The Crown alleged first degree murder against the accused on the standard planned and deliberate ground, or, alternatively, by virtue of committing or attempting to commit criminal harassment, with the additional element that the accused intended the deceased to fear for her safety (Criminal Code, ss. 231(6) and 264) - The Alberta Court of Queen's Bench held that while the trier of fact should not be presented with a "sterile and antiseptic" record, all aspects of the relationship did not need to be presented to the trier of fact, particularly in relation to criminal harassment as a means of proving first degree murder - Admitting too much evidence of the parties' historical relationship might cause prejudice - The court held that, except by way of narrative and background necessary to provide a context and circumstances for her later alleged fear, evidence as to the deceased's state of mind, in the context of fear, prior to mid-March 2002, was not specifically relevant to the offence charged against the accused - See paragraphs 87 to 97.

Evidence - Topic 1720

Hearsay rule - Hearsay rule exceptions and exclusions - Res gestae - Utterances as part of the issue or event - General - [See Evidence - Topic 1631 ].

Cases Noticed:

R. v. R.P. (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), folld. [para. 16].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1; 48 C.C.C.(2d) 1, refd to. [para. 16].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97, refd to. [para. 16].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 170 C.C.C.(3d) 500 (C.A.), folld. [para. 16].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 85 C.C.C.(3d) 97, refd to. [para. 17].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 17].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 17].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 18].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 19, footnote 4].

Subramanian v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 20].

R. v. Babcock (A.W.) (1985), 57 A.R. 224; 16 C.C.C.(3d) 26 (C.A.), leave to appeal refused [1985] 1 S.C.R. v; 58 N.R. 237; 60 A.R. 240, refd to. [para. 23].

R. v. Blastland, [1986] A.C. 41; 61 N.R. 307 (H.L.), refd to. [para. 26].

R. v. J.E.F. (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 33].

R. v. Magloir (D.C.) (2003), 216 N.S.R.(2d) 257; 680 A.P.R. 257; 178 C.C.C.(3d) 310 (C.A.), refd to. [para. 33].

R. v. Ay (1994), 59 B.C.A.C. 161; 98 W.A.C. 161; 93 C.C.C.(3d) 456 (C.A.), refd to. [para. 33].

R. v. Morgan (B.) (1998), 60 O.T.C. 115 (Gen. Div.), refd to. [para. 33].

R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.), refd to. [para. 34].

R. v. Van Osselaer (P.), [1999] B.C.T.C. 16; 1999 BCSC 2098, folld. [para. 34].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 40].

R. v. Nguyen (S.V.) (2001), 281 A.R. 91; 248 W.A.C. 91; 153 C.C.C.(3d) 495 (C.A.), refd to. [para. 43].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481, refd to. [para. 43].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97, refd to. [para. 44].

R. v. Hawkins (K.R.) and Morin (C.) (1996), 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 44].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 46].

R. v. Morrissey, [2001] O.J. No. 498 (C.J.), folld. [para. 47].

R. v. Franz (G.W.), [2000] B.C.T.C. 441; 2000 BCSC 227, folld. [para. 48].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 62].

R. v. Pascoe (D.P.) (1997), 96 O.A.C. 337; 113 C.C.C.(3d) 126 (C.A.), refd to. [para. 65].

R. v. Tran (Q.D.) (2001), 190 N.S.R.(2d) 18; 594 A.P.R. 18; 150 C.C.C.(3d) 481 (C.A.), refd to. [para. 67].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 73].

R. v. Misir (M.) (2001), 150 B.C.A.C. 52; 245 W.A.C. 52; 153 C.C.C.(3d) 70 (C.A.), refd to. [para. 82, footnote 6].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60; 169 C.C.C.(3d) 489 (C.A.), refd to. [para. 82, footnote 6].

R. v. Perera (A.), [2000] O.T.C. 279 (Sup. Ct.), refd to. [para. 82, footnote 6].

R. v. Druken (R.J.) (1994), 125 Nfld. & P.E.I.R. 311; 389 A.P.R. 311 (Nfld. T.D.), refd to. [para. 82, footnote 6].

R. v. Druken (R.J.) (1999), 175 Nfld. & P.E.I.R. 345; 537 A.P.R. 345 (Nfld. C.A.), refd to. [para. 82, footnote 6].

R. v. Bajrangie-Singh (S.) (2003), 170 O.A.C. 99 (C.A.), refd to. [para. 82, footnote 6].

R. v. Evans (D.J.), [2002] B.C.T.C. 1674; 2002 BCSC 1674, refd to. [para. 85].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 87].

R. v. Calder (R.K.), [2001] B.C.T.C. 139; 2001 BCSC 139, refd to. [para. 88].

R. v. Zasidko, [2003] O.J. No. 1942 (C.J.), refd to. [para. 92].

R. v. Bradley (J.B.) (2003), 223 Nfld. & P.E.I.R. 225; 666 A.P.R. 225; 2003 PESCTD 30, refd to. [para. 92].

R. v. Tate (M.J.) (2002), 169 B.C.A.C. 175; 276 W.A.C. 175; 2002 BCCA 189, refd to. [para. 94].

R. v. Rezanowicz (R.) (1997), 48 O.T.C. 128 (Gen. Div.), refd to. [para. 94].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 101].

R. v. Chappell (S.) (2003), 169 O.A.C. 161; 172 C.C.C.(3d) 539 (C.A.), refd to. [para. 107].

R. v. Parrott (W.) (1999), 175 Nfld. & P.E.I.R. 89; 537 A.P.R. 89 (Nfld. C.A.), refd to. [para. 107].

R. v. Wolfe (G.D.), [2003] B.C.T.C. 504; 2003 BCSC 504, refd to. [para. 108].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), affd. [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [Appendix A].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451; 2 C.C.C.(3d) 365, refd to. [Appendix A].

Authors and Works Noticed:

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 173 [para. 17]; paras. 6.2 [para. 17]; 6.3 [para. 19, footnote 4]; 6.16 [para. 22]; 6.19 [para. 23]; 6.64 to 6.66 [para. 74]; 6.70 [para. 41]; 7.31 [para. 33].

Watt, D., Watt's Manual of Criminal Evidence 2003 (2002), p. 312 [para. 19].

Wigmore on Evidence (Chadbourn Rev. 1976), vol. 6, p. 139, para. 1725 [para. 31].

Counsel:

Jonathan Hak and Sarah Bhola (Alberta Justice), for the Crown;

James J. Ogle, Q.C. (Wolch Ogle Wilson Hursh Dewit), for the accused.

This voir dire was heard by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, on November 3-10, 2003. Rooke, J., gave oral decisions on November 14 and November 24, 2003, and delivered the following written reasons on February 11, 2004.