Friday, June 8, 2012

State of mind and narrative exceptions to hearsay rule inappropriate unless relevant

R. v. Lewis, 2012 ONCA 388 deals with commonly used exceptions to the ban on hearsay evidence - state of mind and narrative. The Court makes the point that if the 'state of mind' is irrelevant and the fact does not usefully explain the evolution of relevant events then neither exception can apply:

[17]       Inspector Bellissimo's testimony about the significance of cash payments for tickets and short notice ticketing was not admissible.

[18]       The Crown seeks to support the admissibility of the evidence as an exception to the hearsay rule in order to show the inspector's state of mind and to explain the sequence of events, the questions asked and the responses given by the appellant at the time.  The Crown also argues that the evidence was admissible as part of the narrative in order to explain the unfolding of events.

[19]       I accept neither of these submissions.

[20]       The appellant did not contest the legality of the search of her bags at the airport, nor did she attack the legality of her arrest.  The only thing that was relevant about the Bellissimo interview with the appellant was that, as a result of what transpired, Inspector Bellissimo felt that a secondary inspection was called for and she referred the appellant to another inspector for that purpose.  The cocaine was then discovered.  Inspector Bellissimo's state of mind was unimportant and never in issue.  The evidence is simply irrelevant, and therefore inadmissible, in that context.

[21]       For similar reasons, the evidence did not help to explain the evolution of relevant events and for that reason was neither necessary nor helpful as part of the narrative.  It was irrelevant testimony highly prejudicial to the appellant.  The only reason the Crown wished to have the evidence introduced as part of the "narrative" was to lend credence to its position that the appellant was running drugs across the border.


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