Present state of mind exception to the hearsay rule - a Supreme Court of Canada decision

Hearsay evidence, like any other, must be relevant to be admissible (R. v. Blackman, 2008 SCC 37,  [2008] 2 S.C.R. 298, at para. 29).  It must tend to "increase or diminish the probability of the existence of a fact in issue" (R. v. Arp, [1998] 3 S.C.R. 339, at para. 38).  Under the rule against hearsay, the presumption is that out-of-court statements are inadmissible to prove the truth of their contents (Blackman, at para. 33), absent an exception.

One should first look to the traditional exceptions (R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358), and then to the principled exception (R. v. Khan, [1990] 2 S.C.R. 531).  The traditional exceptions are presumptively valid, though they are still subject to modification in light of the principled analysis of necessity and reliability (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144). 

The admissibility decision is also informed by the judge's residual discretion to exclude evidence where its probative value is outweighed by the potential prejudicial effect (R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 85; R. v. Smith, [1992] 2 S.C.R. 915, at p.937). 

In last week's Supreme Court of Canada decision in R v Griffin 2008 SCJ 28 the Court considered and upheld the present state of mind exception to the hearsay rule where the declarant's state of mind was relevant and the statement was made in a natural manner and not in suspicious circumstances.

The Court writes: 

[56]                          In Smith, Lamer C.J. cited with approval at p. 927, the following excerpt from R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), per Doherty J. (as he then was), at pp. 343-44:

 

An utterance indicating that a deceased had a certain intention or design will afford evidence that the deceased acted in accordance with that stated intention or plan where it is reasonable to infer that the deceased did so.  ...

 

The rules of evidence as developed to this point do not exclude evidence of utterances by a deceased which reveal her state of mind, but rather appear to provide specifically for their admission where relevant.  The evidence is not, however, admissible to show the state of mind of persons other than the deceased (unless they were aware of the statements), or to show that persons other than the deceased acted in accordance with the deceased's stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person.  [Emphasis added.]

 

[57]                          Writing for the majority in Starr, Iacobucci J. referred to the above passage in Smith and elaborated on the reasons why a statement of intention cannot be admitted to prove the intentions of someone other than the declarant, stating in part at para. 172:

 

[T]here are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant.  As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant's assertion. When the statement is tendered to prove the intentions of a third party, this danger is multiplied.  If a declarant makes a statement about the intentions of a third party, there are three possible bases for this statement:  first, it could be based on a prior conversation with the accused; second, it could be based on a prior conversation with a fourth party, who indicated the third party's intentions to the declarant; or third, it could be based on pure speculation on the part of the declarant.  Under the first scenario, the statement is double hearsay.  Since each level of double hearsay must fall within an exception, or be admissible under the principled approach, the mere fact that the declarant is making a statement of present intention is insufficient to render it admissible.  The second level of hearsay must also be admissible.  [Emphasis in original deleted.]

 

[58]                          Applying Smith and Starr to the facts of the present case, there is no doubt that Poirier's statement cannot be admitted as proof of Griffin's intentions, because we do not know the basis on which Poirier came to believe that if he was harmed, Griffin would be responsible.  Hence, Poirier's statement is not admissible to prove a third party's intentions, unless the "second level of hearsay" is also admissible.  The same principle applies to statements of present  state of mind.  If, for example, Poirier had said to Williams that his friend Besso was afraid of Griffin, the statement could not be admitted to prove that Besso in fact feared Griffin.  That the deceased's hearsay statement about his own state of mind or intention to follow a particular course of action cannot constitute proof of another person's state of mind or intentions only makes good sense.

 

[59]                          In the case before us, however, the statement at issue was not admitted to prove the state of mind or intentions of a third party.  No one questioned at trial, or in the court below, that the inference that Poirier feared Griffin could be drawn from the former's statement to Williams.  The statement  was tendered and admitted for the truth of the fact that Poirier himself feared Griffin, a purpose that does not exceed the scope of the "state of mind" exception to the hearsay rule.  As this Court stated in Starr, declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant's state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion (para. 168).  In the present case, there was no argument that the statement was made under circumstances of suspicion.  Poirier's fear of Griffin was  a relevant fact — it was relevant to motive and, in turn to the issue of  identification.  Although a declarant's hearsay statement cannot constitute proof of a third party's state of mind, this does not mean that the declarant's state of mind can have no bearing on other issues in the case.  I will explain.

 

[60]                          As stated earlier, the sole issue at trial was the identity of Poirier's killer.  Although Poirier's state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased's mental state may be  relevant to the question of an accused's motive.  As Doherty J. explained in the oft‑approved judgment in  P.(R.), at p. 339:

 

... the deceased's mental state may bear no direct relevance to the ultimate issue of identification but it will none the less be relevant to that issue if it is relevant to another fact (e.g., motive) which is directly relevant to the ultimate issue of identification.

 

In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial, is equally well established at law:  Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 834-38.

 

[61]                          The state of the relationship between a deceased and an accused in the time period leading up to the former's murder has  been recognized as probative of the issue of motive.  For example, in R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, identity was the crucial issue at trial.  The trial judge admitted statements made by the deceased expressing fear of the accused on the basis that such statements were probative of the issues of "malice, motive, [and] state of mind" (para. 104) which in turn were relevant to identity.  The Nova Scotia Court of Appeal agreed (at para. 133):

 

[The deceased's] state of mind and [the accused's] state of mind are probative of the relationship between them at the time of [the deceased's] murder.  Therefore, they are probative of motive, which is relevant to identity.

 

[62]                          The conclusion in Assoun echoes that of the Ontario Court of Appeal in R. v. Foreman (2002), 6 C.R. (6th) 201, where the court considered the relationship between a deceased's state of mind and the issue of motive.  Upholding the trial judge's admission of statements made by the deceased shortly before her death in which she expressed fear of the accused, the court stated as follows (at para. 30):

 

Motive refers to an accused's state of mind. ... [T]he deceased's state of mind was one link in a chain of reasoning which could lead to a finding that the [accused] had a motive to kill [the deceased].  In that way, evidence of [the deceased's] state of mind had an indirect connection to the appellant's state of mind.

 

[63]                          The connection between a deceased's state of mind and that of an accused  arises by virtue of a pre-existing relationship between the two; if a deceased and accused are unknown to one another, this course of logic can find no application.  That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused's animus or intention to act against the victim:  R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31.  See also R. v. Lemky (1992), 17 B.C.A.C. 71, aff'd [1996] 1 S.C.R. 757.  This is not to say that a deceased's state of mind alone is capable of proving motive.  Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased's state of mind is one piece of evidence that may be relevant to the issue of motive.

 
James Morton
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