R. v. Smith (A.L.) (1992), 55 O.A.C. 321 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty the Queen (appellant) v. Arthur Larry Smith (respondent)
(No. 22281)
Indexed As: R. v. Smith (A.L.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.
August 27, 1992.
Summary:
The accused was convicted by a judge and jury of second degree murder. He appealed his conviction.
The Ontario Court of Appeal, in a decision reported 42 O.A.C. 395, allowed the appeal, quashed the conviction and ordered a new trial. The Crown appealed.
The Supreme Court of Canada dismissed the appeal, and affirmed the order for a new trial.
Criminal Law – Topic 5449
Evidence and witnesses – Testimony respecting the accused – Character of accused – General – [See
Evidence – Topic 1125
].
Evidence – Topic 1125
Relevant facts, relevance and materiality – Relevance – General – The accused abandoned a woman at a hotel, who was later found dead – The accused was charged with murder – The Crown introduced a witness’s evidence that she too was abandoned by the accused when she refused to smuggle drugs – In his closing remarks, Crown counsel suggested that the accused was also going to use the deceased to smuggle and that the accused’s lifestyle was important to the case – The trial judge cautioned the jury, but admitted the witness’s evidence and convicted the accused – The Supreme Court of Canada held that the evidence was inadmissible because it was irrelevant to the murder charge and related to the accused’s character – The error in admitting the evidence justified a new trial – See paragraphs 48 to 54.
Evidence – Topic 1525
Hearsay rule – Exceptions and exclusions – General – The Supreme Court of Canada stated that “this court has not taken the position that the hearsay rule precludes the reception of hearsay evidence unless it falls within established categories of exceptions, such as ‘present intentions’ or ‘state of mind’. Indeed in our recent decision in R. v. Khan, 113 N.R. 53; 41 O.A.C. 353, we indicated that the categorical approach to exceptions to the hearsay rule had the potential to undermine, rather than further, the policy of avoiding the frailties of certain types of evidence which the hearsay rule was originally fashioned to avoid” – See paragraph 28.
Evidence – Topic 1525
Hearsay rule – Exceptions and exclusions – General – The Supreme Court of Canada stated that its decision in R. v. Khan, 113 N.R. 53; 41 O.A.C. 353, “signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity” – See paragraph 32 – The court thereafter discussed the criteria of re-liability and necessity – See paragraphs 33 to 36.
Evidence – Topic 1525
Hearsay rule – Exceptions and exclusions – General – The Supreme Court of Canada stated that “hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability set out in R. v. Khan, and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result to the accused. Properly cautioned by the trial judge, juries are perfectly capable of determining what weight ought to be attached to such evidence, and of drawing reasonable inferences therefrom” – See paragraph 45.
Evidence – Topic 1527
Hearsay rule – Exceptions and exclusions – Where admission of hearsay necessary and evidence reliable – A woman was abandoned by the accused at a hotel – She was later found dead – The accused was charged with murder – He pleaded alibi, claiming that he had not returned to the hotel – He was convicted following admission of hearsay evidence of four telephone calls made by the deceased to her mother: (1) “Larry has gone away”, (2) “Larry has not come back and I need a ride home”, (3) “Larry has come back and I no longer need a ride”, and (4) “I am on my way” – On appeal, the Supreme Court of Canada discussed whether these statements satisfied the criteria of necessity and reliability such as to be admissible, notwithstanding the hearsay rule – See paragraphs 37 to 46.
Evidence – Topic 1527
Hearsay rule – Exceptions and exclusions – Where admission of hearsay necessary and evidence reliable – [See second and third
Evidence – Topic 1525
].
Evidence – Topic 1631
Hearsay rule – Exceptions and exclusions – Statements of deceased persons – Statements of present intention – The Supreme Court of Canada discussed the “present intentions” or “state of mind” exception to the hearsay rule – Under this exception, hearsay evidence may be admissible when the declarant’s statement is adduced in order to demonstrate the intention, or state of mind, of the declarant at the time when the statement was made – See paragraphs 22 to 27.
Evidence – Topic 1631
Hearsay rule – Exceptions and exclusions – Statements of deceased persons – Statements of present intention – The accused abandoned a woman at a hotel – She was later found dead – The accused was charged with murder and raised an alibi defence, claiming that he did not return to the hotel – He was convicted following admission of hearsay evidence respecting the following four telephone calls made by the deceased to her mother: (1) “Larry has gone away”, (2) “Larry has not come back and I need a ride home”, (3) “Larry has come back and I no longer need a ride”, and (4) “I am on my way” – On appeal the Supreme Court of Canada discussed whether these statements were admissible under the “present intentions” exception to the hearsay rule – See paragraphs 1 to 27.
Evidence – Topic 1631
Hearsay rule – Exceptions and exclusions – Statements of deceased persons – Statements of present intention – [See first
Evidence – Topic 1525
].
Cases Noticed:
Mutual Life Insurance Co. v. Hillmon (1892), 145 U.S. 285, refd to. [paras. 13, 22, 24].
R. v. Moore (1984), 5 O.A.C. 51; 15 C.C.C.(3d) 541 (C.A.), refd to. [para. 13].
R. v. P.(R.) (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), refd to. [paras. 14, 25].
Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 19].
R. v. Blastland, [1986] A.C. 41; 61 N.R. 307 (H.L.), refd to. [para. 23].
R. v. Kearley, [1992] 2 All E.R. 345, refd to. [para. 24].
R. v. Wysochan (1930), 54 C.C.C. 172 (Sask. C.A.), refd to. [para. 25].
Home v. Corbeil, [1955] 4 D.L.R. 750 (Ont. H.C.), refd to. [para. 25].
R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, folld. [para. 28 et seq.].
Myers v. Director of Public Prosecutions, [1965] A.C. 1001 (H.L.), refd to. [para. 30].
Ares v. Venner, [1970] S.C.R. 608, refd to. [paras. 30, 45].
R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 51].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [paras. 10, 15, 54]; sect. 693(1) [paras. 11, 18].
Authors and Works Noticed:
Wigmore, John Henry, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd Ed. 1923), vol. 3, §§ 1420 [para. 29]; 1421 [para. 36]; 1422 [para. 30].
Counsel:
Milan Rupic, for the appellant;
D. Fletcher Dawson, for the respondent.
Solicitors of Record:
Attorney General for Ontario, Toronto, Ontario, for the appellant;
Cohan, Highley, Vogel & Dawson, London, Ontario, for the respondent.
This appeal was heard on June 15, 1992, before Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory, McLachlin, and Iacobucci, JJ., of the Supreme Court of Canada. The following decision of the court was delivered in both official languages by Lamer, C.J.C., on August 27, 1992.
