Wednesday, June 26, 2013

Statements of intent can be hearsay where intent is a fact

R. v. McDonald, 2013 ONCA 442 holds:

[58]       The Crown's purpose in introducing Ms. Lewis's evidence of the statement was to help establish that the common intent of the members of the appellants' group was to assault Bruer.  For the Crown's purposes, it would have been no different had the declarant said, "We are going to Bridges to assault Bruer." The Crown sought to prove both the statement itself, and the intention of the declarant to assault Bruer, which the Crown sought to have the jury impute to the group.

[59]       This is not a case where the statement was adduced for the non-hearsay purpose of showing the statement's impact on the recipient: see e.g. R. v. Delafosse (1988), 47 C.C.C. (3d) 165 (Que. C.A.), aff'd [1990] 1 S.C.R. 114; R. v. Eisenhauer (1998), 165 N.S.R. (2d) 81, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 144. In those cases, whether the declarant was mistaken or dishonest was irrelevant, and therefore so were the concerns underlying the hearsay rule. The out-of-court statements were used to show their effects on someone else, and not to prove the truth of the matter asserted by the declarant.

[60]       In my view, in this case the Crown was attempting to adduce the truth content of the statement: the intention of the declarant to assault Bruer, which the Crown urged the jury to impute to the group. Since the statement was tendered to prove the truth of its contents, it is presumptively inadmissible hearsay.

[61]       A somewhat similar fact pattern is found in R. v. Middleton, 2012 ONCA 523,294 O.A.C. 82, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 423.  In that case the appellant was part of a group that assaulted a group of Asian fishermen.  As Feldman J.A. noted at para. 2:

The unknown declarants said that they were going "nip-tipping" and that that meant that they were "going to push them in the river."  The word "nip" was described in the evidence as a derogatory reference to Asian people.  Some of the victims' group were of Asian descent.

[62]       The parties in Middleton agreed that the statement was hearsay, but differed on its admissibility.  The trial judge admitted the statement under the principled exception to the hearsay rule.  He found that the evidence was both necessary and reliable.  Feldman J.A. stated at para. 45:

With respect to reliability, the trial judge found that the pushing incident corroborated and therefore rendered sufficiently reliable the statements as evidence of the common intention. He further found that the statements were reliable in terms of their applicability to the appellant specifically based on the anticipated corroborating evidence of the appellant's leadership in the incident and his direct involvement as one of the pushers. Therefore, I do not find that the trial judge erred in his application of the principled exception.

[63]       By contrast, in this case, the group did not immediately do what the declarant suggested, but did exactly the opposite by continuing to walk away from Bridges Tavern.  The group returned about an hour later.  Based on the separation in time and space, I conclude that, taken on its own, the reliability of the unidentified declarant's statement was at issue under the principled exception to the hearsay rule. Perhaps because no one objected to the admissibility of the statement at trial, the trial judge did not address the use, if any, to which the statement could be put by the jury.

[64]       In my view, the statement appears to fall within the rule in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, to the effect that hearsay statements of common intention are not admissible to prove the intentions of a third party under the "present intentions" exception to the hearsay rule.  See also Middleton at paras. 35-37.

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