R v. Cote – 2018 ONCA 820 (Court):

[14] In a pre-trial ruling, the trial judge held that the Crown could present hearsay evidence from Todd Starr, a long-time friend of McQuhae. Starr was permitted to testify that approximately two or three days before his death, McQuhae told Starr that he was concerned that he might be on the top of the appellant’s kill list and that he was thinking of changing the locks.

[15] The Crown had argued that this testimony was admissible under the “state of mind” or “present intentions” exception to the hearsay rule recognized in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, or alternatively, pursuant to the “principled exception” described in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The trial judge relied on the latter exception to find this evidence admissible.

[16] During trial, the evidence did not materialize precisely as expected. Instead, Starr testified that McQuhae was “worried that [the appellant] was going to kill him.” No evidence was offered about changing the locks.

[17] When cross-examined, Starr adopted his earlier statement about McQuhae being concerned that he was at the top of the appellant’s kill list. Starr then testified that it was after McQuhae made this comment that he said he was worried that the appellant was going to kill him. Later in the cross-examination Starr said that McQuhae’s concern about being at the top of the appellant’s kill list “says the same thing” as being worried about the appellant killing him.

[18] The appellant argues that the trial judge erred in admitting this testimony. He challenges the sufficiency of the indicia of reliability of the statements to meet the threshold reliability required by the principled exception. He also urges that this evidence should not have been admitted because its probative value is outweighed by its prejudicial effect.

[19] The appellant does not take issue with the jury directions relating to the proper use of the evidence. The appellant did argue, however, that the trial judge erred by not giving a sharp warning about credibility problems with Starr’s testimony.

[20] We would not give effect to these grounds of appeal.

[21] Although the trial judge admitted the evidence under the principled exception to the hearsay rule, both the proposed evidence and the hearsay statements that were ultimately presented would satisfy the “state of mind” exception relied upon by the Crown. This is enough, in the circumstances, to demonstrate that the threshold “indicia of reliability” requirements of the principled exception were met. We will explain.

[22] In Starr, at para. 168, Iacobucci J., for the majority, quoted R. v. Smith, [1992] 2 S.C.R. 915 at p. 925 stating that an “exception to the hearsay rule arises when the declarant’s statement is ad-duced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”. He endorsed the conditions for this exception expressed in J.H. Wigmore, Evidence in trials at common law, revised ed. by J.H. Chadbourn (Boston: Little Brown, 1976) vol. 6 at para. 1725, p. 129, that the statement must “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion” (emphasis in original). Naturally, the present state of mind of the declarant must also be relevant to the proceedings: R. v. C.(M.), 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 63.

[23] Each of these requirements is met in this case.