SUPREME COURT OF Nova Scotia
Citation: R. v. Glasgow, 2023 NSSC 132
Date: 20230424
Docket: CRH-495911
Registry: Halifax
Between:
His Majesty the King
v.
Devlin Tyson Glasgow
DECISION ON HEARSAY
Judge: |
The Honourable Justice Joshua Arnold |
Heard: |
February 2, 6, 16, 17, 21, 2023, in Dartmouth, Nova Scotia |
Counsel: |
Rick Woodburn, K.C., and Sean McCarroll, for the Crown D. Sid Freeman, for Devlin Glasgow |
Overview
[1] Devlin Glasgow’s first-degree murder trial started on February 1, 2023. He was accused in the shooting death of Matthew Sudds. Ricardo Whynder was also charged with the murder and proceeded to trial separately from Mr. Glasgow. A jury convicted Mr. Whynder of second-degree murder. He successfully appealed (R. v. Whynder, 2020 NSCA 77). A re-trial for Mr. Whynder was ordered, which is scheduled to start April 11, 2023. Writing for the court, Beveridge J.A. set out the facts in that case:
[1] Matthew Sudds was murdered. A single gunshot to his head caused his death. There were no witnesses. However, ample circumstantial evidence and the appellant’s admissions would permit no other conclusion but that he was present at the scene and, from a lay perspective, otherwise “involved” in that homicide.
[2] The Crown’s theory was that the appellant and one Devlin Glasgow travelled to Nova Scotia to murder Mr. Sudds. They acted as co-principals in the planning and execution of the first degree murder of the deceased.
[3] Appellant’s trial counsel admitted to the jury that it could not realistically be disputed that the appellant was present when the deceased was murdered, but the Crown had not established that he caused the deceased’s death or was liable as a party to the murder.
[4] The jury acquitted the appellant of first degree murder but convicted him on the lesser and included offence of second degree murder. He now appeals. He asks for a new trial because the trial judge’s jury charge did not properly relate the evidence to the issues the jury needed to decide and how it dealt with so-called after-the-fact conduct evidence. Despite Mr. Scott’s stalwart efforts, I agree. I would allow the appeal and order a new trial on the charge of second degree murder.
[2] The first witness for the Crown at Mr. Glasgow’s trial was Darlene Sudds, the mother of Matthew Sudds. During her cross-examination of Ms. Sudds, Ms. Freeman, counsel for Mr. Glasgow, elicited evidence that Ms. Sudds attributed to “people” she had spoken to regarding a conflict with Mr. Whynder about a necklace. The Crown did not object.
[3] I questioned both parties about the admissibility of that evidence. Mr. McCarroll, for the Crown, changed his position and argued that the evidence elicited about the necklace was not admissible. At the time, the parties were not prepared to argue the hearsay issue and it was agreed that it would be determined later in the trial.
[4] The Crown eventually called Ricardo Whynder as a witness. The Crown made it clear that they had no idea whether Mr. Whynder would testify, and if so, what he was going to say. The parties anticipated that Mr. Whynder would likely refuse to testify and we would then embark on a week-long Bradshaw voir dire in relation to various statements given by Mr. Whynder. Mr. Whynder took the stand, testified, and blamed the murder exclusively on Mr. Glasgow. By the end of cross-examination, there was an air of reality to allow the defence of third-party or alternative suspect.
[5] Due to the pace of the trial, and the surprise of Mr. Whynder actually testifying, the parties chose not to fully argue the hearsay issue until after the Crown closed its case. The defence elected not to call evidence, then closed its case.
[6] The parties received a bottom-line decision on the hearsay issue due to time constraints, just before closing arguments. This is my written decision in relation to that hearsay issue.
[7] The jury convicted Mr. Glasgow of second-degree murder on March 4, 2023.
[8] It should be parenthetically noted that pre-trial motions were discussed on numerous occasions before trial. The better part of a month, August 2 – 22, 2022, was set aside for pre-trial motions. The court was advised on July 15, 2022, that the defence was abandoning certain of their pre-trial motions, and that the remaining motions would only take a few days to complete. At no time did Ms. Freeman mention the need for a Bradshaw-type hearsay application in relation anything, including Ms. Sudds’s evidence about the necklace.
Background
[9] On February 2, 2023, during cross-examination of the first Crown witness, Darlene Sudds, the mother of the deceased, Matthew Sudds, defence counsel commenced a line of questioning about a chain or necklace the deceased possessed, and whether he was wearing it when he was killed. The following exchange occurred:
Ms. Freeman: …He was wearing the chain when you got home from work, wasn’t he?
Ms. Sudds: Um, I…, so I don’t recall.
Q. You never saw him without it, right?
A. No.
Q. Okay, so let’s…let’s talk about this chain. This was a big chain, like it hung low.
A. Yes.
Q. It had large links on it.
A. Yes.
Q. Big medallion on it.
A. Yes, it’s exactly like the bracelet.
Q. Right. Maybe you could hold it up, so the members of the jury could see it.
A. It’s cut right off the chain.
Q. Okay. He wore it everywhere.
A. Yes.
Q. He wore it all the time.
A. Yes.
Q. He didn’t go anywhere without it.
A. Nope.
Q. But he wasn’t wearing it when he was killed.
A. No.
Q. And you told us you found it hidden?
A. Put in a pair of shoes, yeah.
Q. Yeah, and the pair of shoes were in the closet?
A. Mmhmm.
Q. On a shelf?
A. Mmhmm.
Q. That was strange?
A. Yes.
Q. You became aware, shortly after Matthew died, that there had been an incident involving Ricardo in relation to Matthew’s chain.
A. Yes.
Q. And that, in fact, Ricardo had stolen Matthew’s chain?
A. Yes.
Q. Had beaten Matthew up?
A. Yes.
Q. You have to answer in words, sorry.
A. Yes.
Q. And that Matthew got the chain back?
A. Yes.
Q. And started paying Ricardo money?
A. Um…
Q. That’s the first payment you’d ever made to Ricardo, that 350?
A. Yes, but I can’t say it was for the chain.
Q. Okay. You never gave Ricardo money on Matthew’s behalf prior to that?
A. No, not that I recall.
[10] The Crown initially did not object to these questions and answers. During a break in Ms. Sudds’s testimony on February 2, 2023, I inquired as to the admissibility of that evidence, and whether it was hearsay. I returned to this issue the next day:
The Court: On cross-examination, Ms. Sudds testified that she was aware that Mr. Whynder had stolen Matthew Sudds’ chain…
Ms. Freeman: Right.
The Court: …that he had beaten up Mr. Sudds, that Mr. Sudds had gotten his chain back…
Ms. Freeman: Okay.
The Court: …then more questions about that Mr. Whynder had put Mr. Sudds on a plane to Montreal, that he had helped him get out of town, that he…
Ms. Freeman: Okay.
The Court: …had said he was at the airport, helping him get out of town. So…
Ms. Freeman: Right.
The Court: …all of those discussions are, to my mind, hearsay. They are out-of-court statements made by another person not in the presence of Mr. Glasgow. And so, if they are being elicited from the witness, those aren’t surprise answers. Counsel have disclosure. They were asking very specific questions knowing what the answers would be. If there is an exception to the hearsay rule that allows those types of utterances to be provided as evidence to the jury, then a jury should be told why they’re being heard…why they’re hearing that type of hearsay evidence.
Ms. Freeman: Okay.
[11] Counsel were given time to conduct research and provide written submissions. On February 6 we returned to the issue. The Crown belatedly objected, arguing that there was no basis to admit the evidence:
Mr. McCarroll: We’re…we’re simply not aware of any umbrella under which it fits. As I said, the principled exception from the Crown’s perspective, respectfully, fails for…for a number of…of reasons. We don’t know anything about the…the alleged conversation that led to Ms. Sudds being aware that her son had been assaulted by Ricardo Whynder, or the circumstances that…that led to it. Certainly, there’s…there was some…there was suggestion of that from the disclosure, but it did not come from Darlene Sudds. It came from other sources in the disclosure that, upon review, the Crown determined lacked reliability and so we’ve chosen not to call it at Mr. Whynder’s first trial or at this trial because of those difficulties. If…if we could have called it, we…we would have called that evidence. But, quite frankly, we…we don’t see that it…that it is reliable. We…we don’t know anything about this…this conversation.
[12] Counsel requested further time to prepare their submissions. Then, during cross-examination of Ricardo Whynder on February 15, 2023, he denied any dispute between himself and Matthew Sudds over a necklace:
Ms. Freeman: He had a big gold chain that he wore everywhere he went, right? Never took it off.
Mr. Whynder: Well, I wouldn’t say everywhere, ‘cause I been with Matthew when he didn’t have any jewelry on.
Q. Was that the time you stole it from him?
A. No, ma’am.
Q. That chain was obviously very expensive. You could tell just by looking at it, right?
A. Well, I don’t know what chain you’re preferring to, ‘cause I seen Matthew with watches and rings, chains. I don’t know what chain you’re saying is very expensive.
Q. Okay, so you’re denying that Matthew had a chain that he wore everywhere he went, right?
A. The times I seen Matthew, sometimes he had jewelry on, sometimes he didn’t.
Q. Before Matthew died, you robbed him of that necklace.
A. No, ma’am.
Q. You beat him up in the process.
A. No, ma’am.
Q. You sold it back to him.
A. No, ma’am.
Q. And that’s what that $350 payment was that you got from Darlene.
A. No. I got that from weed.
[13] After the Crown closed its case on February 16, 2023, Mr. Glasgow elected not to call evidence. The parties then made oral argument on the evidentiary issue. The Crown objected to the admission of Darlene Sudds’ evidence about the alleged beating-up of Matthew Sudds by Mr. Whynder, and its aftermath:
Mr. McCarroll: Yeah, the hearsay issue…wanted to…I don’t know if now is the time to do it or not, but…but the Crown does see an issue with some of the hearsay issues, specifically the…the question to Darlene Sudds…
The Court: Right.
Mr. McCarroll: …about Matthew getting beaten up by Ricardo Whynder. Mr. Whynder denied that, so the Crown’s problem with it is that, from our perspective, the foundational questions that would have been required weren’t really asked. We have no idea how Darlene Sudds knew this information, whether she had any idea about that at the time or if this was something that came to her attention after the first trial or during that first trial or…
The Court: Right.
McCarroll: …in any event, well after the fact. That hasn’t been established, so the Crown sees a problem with that. All of the other hearsay issues, from our perspective, have been resolved…
The Court: Yes.
Mr. McCarroll: …I think, through Mr. Whynder’s testimony.
The Court: Agreed.
Mr. McCarroll: But that last piece, from the Crown’s perspective, is problematic ‘cause there is no foundation to it.
[14] On February 17, 2023, I identified to counsel the portion of the evidence that was objected to (that is, the highlighted portion at para. 9 above).
Q. Okay. He wore it everywhere.
A. Yes.
Q. He wore it all the time.
A. Yes.
Q. He didn’t go anywhere without it.
A. Nope.
Q. But he wasn’t wearing it when he was killed.
A. No.
Q. And you told us you found it hidden?
A. Put in a pair of shoes, yeah.
Q. Yeah, and the pair of shoes were in the closet?
A. Mmhmm.
Q. On a shelf?
A. Mmhmm.
Q. That was strange?
A. Yes.
The Court: Okay, all of that, admissible evidence…
Q. You became aware, shortly after Matthew died, that there had been an incident involving Ricardo in relation to Matthew’s chain.
A. Yes.
Q. And that, in fact, Ricardo had stolen Matthew’s chain?
A. Yes.
Q. Had beaten Matthew up?
A. Yes.
Q. You have to answer in words, sorry.
A. Yes.
Q. And that Matthew got the chain back?
A. Yes.
Q. And started paying Ricardo money?
A. Um…
Q. That’s the first payment you’d ever made to Ricardo, that 350?
A. Yes, but I can’t say it was for the chain.
[15] Defence counsel proposed to rely on a transcript of a statement by Ms. Sudds to the police, in which she had referred to the incident, as follows:
Question by Officer Kurt Walsh: Okay, alright, do you know if they had a beef or anything between?
Answer: Yeah. I found out…I found out later they had. Yeah.
Question: Okay.
Answer: Just weeks before.
Question: Okay. Tell me, tell me what you found out and how you found out about that.
Answer: Well, when I started looking around for Matthew and I started calling around, people had told me that him and Matthew, Ricardo had took his chain, smacked around a little bit, off the highway somewhere, I don’t know. They pulled over on a highway.
Question: Right.
Answer: That he took his chain and that Matt was paying him money for whatever reason, I’m not sure.
Question: Right.
Answer: I don’t remember now, but that’s…vibrating [puts hand on pocket]. Yeah, but…had not…didn’t know this until after.
Question: Right
[16] On February 18, 2023, Ms. Freeman filed her materials for a Bradshaw application, pursuant to R. v. Bradshaw, 2017 SCC 35. On February 21, I raised the issue of the hearsay again with counsel:
The Court: I would like to know…so, I’ve read your brief, obviously. Here’s what I want to know: If the jury was being instructed in relation to how they can use those comments of Darlene Sudds that, no matter how it’s dressed up, there is no foundation for them and there’s no reliability – there just isn’t. In…in my opinion, there’s not, but they’ve been said, it’s sitting there. You want to be able to show animus between Mr. Sudds and Mr. Whynder, but there’s no foundation for it. I mean, what she says is, it was either gossip or rumour that she got from unknown, unnamed people, and she doesn’t even remember or something. She just says, “I don’t remember,” in relation to this. So, is...it’s either hearsay, double-hearsay, quadruple-hearsay, infinity hearsay, I don’t know where it is. But, if there is, and I understand why…why you’d want it there, my concern is…is because I don’t see how in the world it would be admissible, and Mr. McCarroll you just have to listen for a second here, is it’s been sitting with the jury for a couple of weeks, it’s Mr. Glasgow that’s on trial – not Mr. Whynder, and I don’t want to do anything that would prejudice him or undermine him in relation to the kinds of questions that were asked in front of the jury at the end of two weeks in relation to something that, okay, it’s meaningful in a way, it’s meaningful, but it’s not the most meaningful piece of evidence that we’ve heard, but it’s meaningful, so how would I characterize…if I was going to allow it to sit there, how is the best way to deal with it? You say that it’s narrative, but I don’t know what it’s narrative of. It’s not narrative truthfully of him, why he put his chain in his shoe, because it’s being offered for the truth of the contents at that point. All it really talks about is why Ms. Sudds had a particular state of mind about this whole thing, but is that relevant to anything? And I don’t know how to describe it to a jury and, I know that I might be perplexing you, but I’m just telling you what my concerns are. How can I describe it to the jury if I’m going to let it sit so that Mr. Glasgow isn’t prejudiced in relation to that evidence having sat there for a couple of weeks, and you asked those questions, how can I describe it to the jury properly? It’s the proper part. So, what explanation could I give? That’s not a facetious question, that’s a sincere question and I don’t know how to characterize it so that there’s not prejudice to Mr. Glasgow, which is what I am worried about? Do you understand what I’m asking, and maybe I’m not asking it very well?
Ms. Freeman: Okay, so I just wanna make sure where…where we are. You have decided that it’s not admissible as hearsay – despite the large amount of substantive reliability.
The Court: There’s no substantive reliability to me, whatsoever. So, you want to…I cut you off, you go ahead and I’ll listen, because right now, when I…having read your brief, I don’t see any substantive reliability…I see zero. It’s gossip and rumour. There was no foundation on cross and the comment that you added in relation to the transcript, which the Crown hasn’t objected to, so I guess we’re relying on, says, “I heard it from people.” But again, straighten me out. I shouldn’t have talked and I should have listened, so go ahead.
Ms. Freeman: Okay. She doesn’t say, “I don’t know,” with respect to what was said…
…
Ms. Freeman: Okay, so, on page 12, she is asked, “Do you know if they had a beef or anything between?” And she says, “Yeah.” She’s very clear about that. “I found out later they had, yeah.” She’s very clear that they had a beef…
The Court: Right.
Ms. Freeman: …it’s not that she didn’t know.
The Court: She didn’t get that information from Matthew, she got that information later.
Ms. Freeman: From someone else. From…from at least two other sources…
The Court: Well, keep going.
Ms. Freeman: Who…they would be the declarants.
The Court: Yes.
Ms. Freeman: She said, “Just weeks before,” so she’s clear about that. She’s asked, “Okay, tell me…tell me what…tell me about what you found out and how you found out about it.” So she starts with the how. “When I started looking around for Matthew,” so this is contemporaneous to his disappearance, close in time to the events, “and I started calling around, people had told me,” those are the declarants, more than one, “that him and Matthew, Ricardo had took his chain,” she’s clear about that, “smacked him around…smacked around a little bit,” she’s clear about that, “off the highway somewhere, I don’t know, they pulled over on a highway,” the officer says, “Right,” she says, “And then he took his chain and Matthew was paying him money for whatever reason, I’m not sure.” What she’s not sure about was what Matthew was paying him money for, and then she says, “I don’t remember,” then she’s distracted by the phone vibrating in her pocket, “yeah, but I had not, I didn’t know this until after.” The officer says, “Right.” So, what she’s not clear about is whether Matthew was paying him money. She says, “Matthew was paying him money for whatever reason, I’m not sure.” That’s what she’s not sure about: the reason Matthew was paying him money. Not about the things that came before. She’s sure about those other things.
The Court: She’s sure because people told her.
Ms. Freeman: Yes, that’s the nature of hearsay.
[17] I pointed out that there was no declarant identified, nor was there any indication of where the unidentified declarants had gotten their information. Defence counsel replied that Bradshaw permitted threshold reliability to be established by either procedural or substantive considerations, and submitted that the substantive reliability was “overwhelming”, regardless of the lack of information about the declarants:
Ms. Freeman: You have a lot of substantive reliability. You have Mr. Whynder stopping to visit the home at about…in about the same time frame as the necklace dispute occurred, you have a payment to Mr. Whynder. Ms. Sudds was very clear in her evidence before the jury. She can’t say that that was for the necklace, but we do there was a payment. And that, if I remember her evidence right, she said she didn’t recall ever making a payment to Ricardo Whynder previously, although she had made payments to other people. What I have her saying is, I asked her, “Matthew started paying Mr. Whynder money after that?” (after the necklace dispute). She said, “I can’t say it was for the chain. I can’t say I ever…I can’t say I gave money to Mr. Whynder before,” is what she said. So, you have the change from Ricardo Whynder being a welcome visitor in the home to Matthew Sudds being insistent that he not be permitted in the home to receive that payment, that it had to be done in the lobby even though it was inconvenient to his mother and that’s not what she wanted to do. You have that, even though he was present in Halifax, he had his mother meet with Mr. Whynder to hand over the money. You have his interactions with Darlene Sudds the night before Matthew Sudds was…died, which she described as very weird and very strange, wanting to call her to check up where her son was and wanting to come over and watch a movie with her. Of great significance is the fact that Matthew Sudds took off and hid that necklace, which his mother said was his prized possession, he never took it off, he went everywhere with it, she never saw him without it, and yet he takes it off before he goes to meet with Ricardo Whynder, immediately before he was killed. But he didn’t take off the $5,000 bracelet, which goes some way in suggesting that there’s an issue about the necklace. It’s not an issue about expensive jewelry. Matthew Sudds was edgy and troubled before meeting Ricardo Whynder, which shows he was nervous about meeting with him, and then he was killed within minutes of being driven off in the car associated to him, and Mr. Whynder admitted he was present when Mr. Sudds was killed. That is overwhelming substantive reliability, in my submission. I don’t…I don’t see how that gets reduced to zero. There are many cases where hearsay has been admitted on a lower degree of corroboration. There’s a lot of corroborating evidence here, that there was something between them about the necklace.
[18] When asked where necessity would be found, defence counsel initially suggested that it was because Matthew Sudds was dead. When it was pointed out that Ms. Sudds did not identify him as the declarant, she noted, “we don’t know who these other people are.” While counsel attributed this to the failure of the police to ask Ms. Sudds, and the lack of a preliminary hearing, she also acknowledged that this could have been the subject of a pre-trial voir dire. Counsel then suggested that the evidence could go to the jury as “narrative.” She relied on R. v. Assoun, 2006 NSCA 47, at paras. 176-177, and submitted that the evidence could go to the credibility of Mr. Whynder’s denial that he had a dispute with Mr. Sudds. I queried whether this was consistent with the purposes of narrative evidence set out in Assoun:
The Court: So that’s for the truth of it. That’s not narrative. I don’t think that…I understand that…that Assoun said it can be used to explain or to test the credibility, but it depends on the circumstance. It doesn’t mean that it always is. So, how can it be used to challenge the credibility of Mr. Whynder if it’s not being put in for the truth of it? If he is asked that question, “Did you have a fight with Matthew about his chain and steal his chain and sell his chain back to him?” or whatever and he says, “No,” how can it be used to assess his credibility if you’re not saying this statement was true and his statement wasn’t true?
Ms. Freeman: But nar…narrative is, uh…
The Court: Usually, narrative is, “I got a call and I went over to this house.” “Why did you go to that house?” “Because I got this call and I went to that house.” Right? And, so, it may not necessarily be true that you got the call to go to the house, but you’re explaining why you went to the house. What does this, how does this work…this…I’m just having trouble intellectually – me, personally…
Ms. Freeman: Yeah, no, I hear you.
The Court: …getting it.
Ms. Freeman: My understanding is that narrative is one of the traditional exceptions to hearsay.
The Court: Absolutely. It’s just, how is this narrative? What’s this narrative of? She said she heard about it later and that it was about some very specific things…what narrative does it…it doesn’t explain her narrative, right? So, whose narrative does it explain?
Ms. Freeman: It explains why Matthew Sudds would take off the necklace and not his bracelet and why he would be edgy and troubled, or edgy and whatever the other thing was that he was described as, the other adjective. It explains, um, his behaviour before the meeting with Mr. Whynder, which is confirmatory of Mr. Whynder’s evidence that he’s the one…Mr. Sudds up at the Burger King. So, it helps explain Matthew Sudds’ behaviour prior to the meeting with Mr. Whynder: why he would take off the necklace and not the bracelet, why he would hide the necklace, why he would not want Mr. Whynder over at the apartment, why he was edgy and troubled before he met with Mr. Whynder. If you find that the evidence of Ms. Sudds about the necklace dispute is not admissible and that was just that there had been the incident between them, that Matthew had been....Matthew Sudds had been beaten and gotten the chain back. So, those three things, in my submission, I should still be able to put to the jury those items of substantive reliability – namely that Ricar…they would be points four through to fourteen in my list of items of substantive reliability. So, the factual things that had happened: Mr. Whynder stopped coming over to the house, there was the payment, the insistence on the meeting of the lobby…
The Court: Sure.
Ms. Freeman: …those things to suggest that something had gone wrong in the relationship between Mr. Whynder …
The Court: Absolutely.
Ms. Freeman: …and Mr. Sudds.
[19] The Crown took the position that the evidence was completely unreliable and amounted to no more than gossip and rumour. Necessity would be impossible to establish, given the complete lack of information about the identities of the declarants. I raised the question of what should be said to the jury about the evidence, given that it had been heard early in the trial without objection by the Crown. As between a “no probative value” instruction and saying nothing, the Crown suggested that the latter was the better course in the circumstances. Defence counsel agreed that if the evidence was inadmissible, nothing should be said to the jury about it.
Positions of the parties
Devlin Glasgow
[20] On the issue of the admissibility of the necklace comments attributed to Mr. Sudds, Ms. Freeman stated as follows in her brief:
This evidence is admissible as narrative to explain:
1. Why Matthew Sudds hid the necklace he never went anywhere without before meeting with Ricardo Whynder
2. Why Matthew Sudds was adamant his mother meet Ricardo Whynder in the lobby instead of the apartment to make the $350 payment
3. Why Mr. Whynder engaged in unusual behaviour with Ms. Sudd’s the night before her son was killed.
4. Why Mr. Whynder stopped visiting at the apartment about two weeks before her son was killed
5. Why Matthew Sudds seemed edgy and troubled immediately prior to meeting Mr. Whynder
The evidence is also admissible as hearsay.
The Bradshaw analysis requires an examination of the procedural and substantive reliability to determine threshold reliability and thus, admissibility.
There are no procedural safeguards with respect to the necklace evidence.
There is, however, significant substantive reliability with respect to this evidence. The evidence corroborating the necklace dispute is as follows:
1. Ricardo Whynder, who had been a frequent visitor at the Sudds’ home, had stopped visiting around the time of the dispute.
2. Matthew Sudds provided $350 through his mother to Ricardo Whynder the day before he was killed.
3. Matthew Sudds had been adamant his mother meet Ricardo Whynder in the lobby instead of the apartment to make the $350 payment despite Whynder’s prior history of being a welcome guest and despite Ms. Sudds not wanting to go to the lobby as it was inconvenient.
4. Ricardo Whynder’s highly unusual interaction with Darlene Sudds the night before Matthew Sudds was killed which included:
a. Mr. Whynder suggesting he attend her home to watch a movie with her in Matthew’s absence, and
b. advising he would call her later to check on Matthew’s whereabouts.
5. Matthew Sudds hid the prized necklace he never went anywhere without before meeting with Ricardo Whynder immediately before he was killed.
6. Matthew Sudds behaving edgy and troubled immediately prior to meeting Mr. Whynder the night he was killed.
7. Matthew Sudds being killed within minutes of being driven off in a car associated to Mr. Whynder and, in which, Mr. Whynder had been seen by police multiple times throughout the day of the homicide.
8. Mr. Whynder’s admission to the Nova Scotia Rewards Line that he had been present and involved in the death of Matthew Sudds.
In assessing threshold reliability, the trial judge's preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process (Bradshaw, para 40). Here, in court cross-examination of the declarant would add nothing to the trial process. The corroborative evidence substantially negates the possibility that the declarant was untruthful. Indeed, in this case, the corroborative evidence substantially guarantees the truthfulness of the declarant.
[As appears in original]
The Crown
[21] The Crown objects to the evidence, stating that there is no necessity or reliability, and that it is merely rumour and gossip.
Analysis
Crown’s initial failure to object
[22] The Crown’s initial failure to object to Ms. Sudds’s testimony regarding the alleged necklace dispute does not carry the day. Counsel cannot agree that otherwise inadmissible evidence is admissible through the testimony of a witness. In R. v. Bezanson (1983), 61 N.S.R. (2d) 181, [1983] N.S.J. No. 561 (S.C.A.D.), Jones J.A. said, for the court:
29 The appellant argues under grounds seven and ten that the verdict is unreasonable and cannot be supported by the evidence. In my general comments regarding the trial judge's address I indicated that there was ample evidence to support the verdict. If the jury accepted the evidence of MacNeil and the statement of the appellant there was little room for a viable defence. The defence was based on conjecture and argument with little support on the evidence. The defence relied on the statement given by John Mapplebeck to the police as evidence of the facts stated therein. This was admittedly hearsay and should have been excluded by the trial judge notwithstanding an agreement by counsel that the statement be admitted. With respect, counsel cannot agree to the admission of such evidence. The jury was asked to act on a statement which had not been tested in any way as to reliability. No explanation was given as to why John Mapplebeck was not called as a witness even assuming he could give evidence that was both relevant and admissible on the trial. There is no merit in these two grounds of appeal.
[23] Additionally, as the trial judge, I am the gatekeeper regarding the evidence and cannot allow the jury to rely on inadmissible evidence.
Relaxed rules of evidence for the defence
[24] Ms. Freeman says that even if the evidence is not admissible under Bradshaw, the rules of evidence must be flexible and relaxed in their application to defence evidence in order to prevent a miscarriage of justice, as this evidence is important to Mr. Glasgow’s defence of third-party suspect. Ms. Freeman relies on a number of cases, including: R. v. Bradshaw, [2017] 1 S.C.R. 865; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Finta, [1992] O.J. No. 823 (Ont. C.A.); R. v. Finta, [1994] 1 S.C.R. 701; R. v. Folland (1999), 43 O.R. (3d) 290 (Ont. C.A.); R. v. Williams (1985), 50 O.R. (2d) 321 (Ont. C.A.); R. v. Sunjka (2006), 80 O.R. (3d) 781 (Ont. C.A.); R. v. Jones, 2017 NSSC 140; and R. v. Assoun, 2006 NSCA 47.
[25] There is no dispute that the rules of evidence should be more relaxed and flexible regarding defence evidence, in particular to avoid the possibility of a miscarriage of justice that could be occasioned by too rigid or formalistic application of evidentiary rules. In Folland, where the Crown chose not to call an alleged third-party perpetrator whose out-of-court utterances could have had probative value to the defence, Rosenberg J.A. reviewed the legal principles in this regard:
47 However, since the use of S.H.'s out-of-court utterances may be an issue at the new trial, I would make these comments for the assistance of the trial judge. The most likely route by which those statements would be put before the jury is if either Crown or defence call S.H. as a witness. At that point, S.H. might either admit the statements or the party, presumably the defence, would attempt to prove the statements in accordance with either s. 9 (if the defence called S.H.) or s. 11 (if the Crown called S.H.) of the Canada Evidence Act, R.S.C. 1985, chap. C-5. If the defence wishes to make substantive use of the statements, it should proceed in accordance with the procedure set out in R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Conway (1997), 121 C.C.C. (3d) 397 (Ont. C.A.) and R. v. Szpala (1998), 124 C.C.C. (3d) 430 (Ont. C.A.).
48 In determining whether the defence should be permitted to make substantive use of this evidence, the trial judge will wish to bear in mind the comments of Martin J.A. in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.) at 378:
It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.
49 This passage was approved by Cory J. in R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.) at 527. In my view, while the trial judge must be satisfied that the prior out-of-court utterances have some reliability, the strict standards set, in the context of an application by the Crown to make substantive use of prior inconsistent statements incriminating the accused, in R. v. B. (K.G.) do not apply: c.f. R. v. Eisenhauer (1998), 123 C.C.C. (3d) 37 (N.S.C.A.) at 64, application for leave to appeal to the Supreme Court of Canada dismissed, August 20, 1998.
50 The comments by Martin J.A. have particular application to the statements made by S.H. at the scene. The Crown relied on the appellant's inculpatory statements at the scene for their truth. If S.H. testifies and denies having assaulted the complainant, it seems only right that his contrary statements also made at the scene ought to be available for substantive use by the defence. However, that will be a matter for the trial judge who will have the advantage of observing S.H. and the other witnesses and will be in a much better position to make the reliability determination.
[26] Watt’s Manual of Criminal Evidence provides the following summary of Folland at section 5.0:
Necessity and Reliability: Third Party Perpetrators
R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.)—In determining the admissibility of the out-of-court utterances of an alleged third party perpetrator, a trial judge should consider that there is a discretion to relax a strict rule of evidence in favour of D where it is necessary to prevent a miscarriage of justice and the danger against which the rule aims to safeguard does not exist. The strict standards of reliability required of P to make substantive use of prior inconsistent statements incriminating D does not apply, although the prior out-of-court utterances must have some measure of reliability.
[27] In the instant case, the declarant was not identified in any way whatsoever by Ms. Sudds, nor was any effort made by counsel to elicit the identity of the declarant. In R. v. Tash, 2013 ONCA 380, Watt J.A., for the court, made clear that, although the strict rules of evidence can be relaxed for the defence in order to prevent a miscarriage of justice, this relaxation of the rules does not invite an abandonment of the inquiry into admissibility:
[87] Trial counsel sought to have Richardson’s admission of gun ownership received through the testimony of the appellant under the declaration against penal interest exception to the hearsay rule. No voir dire was conducted. Nor did counsel attempt to establish admissibility under the principled exception to the rule.
[88] The principles that govern the admissibility of declarations against penal interest are these:
i. the declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;
ii. the vulnerability to penal consequences must not be remote;
iii. the declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest;
iv. in a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and
v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.
…
[89] It is well-established that, as a matter of general principle, admissibility rules apply equally to the Crown and to the defence. But a trial judge can relax those rules in favour of the defence where it is necessary to do so in order to prevent a miscarriage of justice: … Relaxation of the rules does not invite an abandonment of the inquiry into reliability under the principled approach, nor should it do so in connection with factors or conditions that attempt to ensure reliability under listed exceptions...
[28] In discussing the facts in Tash, Watt J.A. criticized the introduction of the hearsay evidence due to the procedure followed by counsel. He emphasized that no evidence had been led regarding necessity, that is, to establish that the declarant, Richardson, was unavailable to testify:
[90] Despite errors in permitting the introduction of the appellant’s version of Richardson’s admission as a declaration against penal interest and in requiring the defence to call Richardson as a witness as a prerequisite to the reception of the appellant’s account, I would not give effect to this ground of appeal.
[91] Tendered through the appellant as its recipient, the statement of Richardson admitting ownership of the gun, possession of which was attributed to the appellant, was not admissible as a declaration by Richardson against his penal interest.
[92] Richardson’s statement was made to a fellow inmate in a correctional centre in circumstances that did not expose Richardson to any realistic risk of penal consequences. Even if it could be said that some risk of vulnerability attached to the admission, the risk was, at best, highly remote. Further, there was an association between Richardson and the appellant, both at the time of the incident giving rise to the charges and at the time the declaration was allegedly made. In addition, there was no evidence that the declarant, Richardson, was unavailable to testify. Indeed, as it turned out, Richardson was available and was called as a defence witness.
[93] The appellant did not seek to have his account of Richardson’s admission received under the principled exception to the hearsay rule, or ask that it be received through some relaxation of the rule to prevent a miscarriage of justice. No voir dire was conducted, thus neither the trial judges nor this court could determine admissibility on either basis.
[94] In the end, what happened here was that the substance of Richardson’s alleged admission was adduced before the jury in the form of hearsay evidence that should not have been admitted. Its effect was diluted by Richardson’s testimony in which he professed no memory of the gun or the Maplehurst conversation. The trial judge said nothing about the evidence except to give it a brief reference in the “third party” instruction she gave about Richardson’s involvement.
[29] There was absolutely no evidence presented in this case as to who the “people” were from whom Ms. Sudds received the information about the necklace dispute. Zero questions were asked of her on cross-examination as to where and from whom she obtained this information. Although the parties had closed their respective cases when this issue was addressed, Ms. Freeman was permitted to file and rely on the transcript of Ms. Sudds’s video statement to the police. Again, that statement reveals only the following:
Q. Okay, all right. Do you know if they had a beef or anything between …
A. Yeah, I found out later that they had, yeah.
Q. Okay.
A. Just weeks before.
Q. Okay, tell me … tell me about what you found out and how you found out about that.
A. Well, when I started looking around for Matthew and I started calling around, people had told me that him and Matthew … Ricardo had took his chain, smacked around a little bit. Off the highway somewhere. I don’t know, they pulled over on a highway.
Q. Right.
A. And that he took his chain and that Matt was paying him money for whatever reason, I’m not sure.
Q. Right.
A. I don’t remember now. But that’s vibrating. (puts hand on pocket) Yeah, but I had not … didn’t know this until after.
Q. Right.
[Emphasis added]
[30] The only indication of the source of this information is Ms. Sudds’s comment that “people” told her about the dispute, that this occurred when they pulled off the highway “somewhere. I don’t know…”, that she was “not sure” and did not “remember now” why her son was allegedly paying Mr. Whynder.
[31] No declarant was ever identified by Ms. Freeman. There was absolutely zero effort to prove necessity. And none was proven.
[32] As noted in R. v. Furey, 2022 SCC 52, in the context of a Crown application (as opposed to the defence application in this case), even where the necessity of receiving hearsay evidence is great, threshold reliability must still be proven. As Karakatsanis J. noted, for the court:
However, we would emphasize that the necessity of receiving hearsay evidence is never so great that the principled approach's requirement of threshold reliability can be sacrificed. Admitting unreliable hearsay evidence against an accused compromises trial fairness, risks wrongful convictions and undermines the integrity of the trial process (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 47-49).
This Court has recognized that necessity and reliability — making up the principled approach to hearsay evidence — "work in tandem"; in particular, "if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed" (R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 72). Indeed, "[i]n the interest of seeking the truth, the very high reliability of the statement [can] rende[r] its substantive admission necessary" (Khelawon, at para. 86, citing R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764).
However, this Court has never said that reliability becomes more flexible as necessity increases. While the indicia of reliability required to address specific hearsay concerns may vary with the circumstances of each case (Khelawon, at para. 78), threshold reliability must be established in every case. As this Court affirmed in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, "the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents" (para. 32, citing Khelawon, at para. 49). Indeed, where this Court has considered the out-of-court statements of deceased declarants, we have consistently insisted on "circumstantial guarantee[s] of trustworthiness" (R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 937-38), or "a sufficient substitute basis for testing the evidence" (Khelawon, at para. 105 ). Thus, in all cases, whatever may be the degree of necessity, such evidence must meet the requirement of threshold reliability in order to be admissible.
That said, we do not read the trial judge's reasons as based on a relaxed threshold of reliability. Rather, they show that she applied the reliability threshold described by this Court in Bradshaw, at para. 31. She remarked that the statement was video-recorded, "reasonably contemporaneous with the events and was given to police without hesitation" (see dire reasons, at paras. 28-29, reproduced in A.R., vol. I, at p. 12). She also considered corroborative evidence, and determined that the explanations alternative to the statement's truth "would seem unlikely" (para. 44). Based on these considerations, she concluded "that contemporaneous cross-examination, while preferable as in any case, would not likely add much to the process of determining the truth of what [the declarant] said in his statement" (para. 46).
Thus, we are satisfied that the trial judge's reasons, read as a whole, show that she properly applied the law relating to the admission of hearsay evidence, and did not relax the minimum threshold of reliability. We agree with the dissent in the Court of Appeal that the references in the final paragraphs of the trial judge's reasons do not undermine her previous conclusion that threshold reliability was established. [Emphasis added]
[33] While Ms. Freeman notes a number of pieces of evidence that tend to support the relevance of the alleged necklace dispute, assuming Ms. Sudds’s testimony was accurate, threshold reliability was simply not achieved. Necessity was not established. There are no circumstantial guarantees of trustworthiness: we do not know what the specific declarations were, who made them, or anything about the conditions under which they were made.
[34] The evidence elicited from Ms. Sudds about a dispute between Mr. Whynder and Mr. Sudds is not admissible.
[35] That said, Ms. Sudds’s evidence regarding the necklace was elicited by Ms. Freeman on the first day of trial. It was allowed to sit with the jury throughout the remainder of the trial. So as not to prejudice Mr. Glasgow at the very end of the trial by pointing out that his counsel had elicited inadmissible evidence, and because there was a host of other admissible evidence that had been elicited supporting the defence theory of third-party suspect, I determined that no limiting instruction should be given to the jury about the evidence.
[36] Ms. Freeman was permitted to reference all of the other evidence regarding the necklace during her closing argument, and simply agreed to avoid mentioning Ms. Sudds’s evidence regarding the alleged dispute between Mr. Whynder and Mr. Sudds regarding the necklace.
Conclusion
[37] The hearsay evidence is not admissible. However, in this case, because it was allowed to sit with the jury for weeks, in an effort to avoid prejudicing Mr. Glasgow by way of a limiting instruction, the most practical remedy was to restrict Ms. Freeman’s reference to the testimony of Ms. Sudds in this regard in her closing argument.
Arnold, J.