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Evidence - Hearsay - State of Mind Exception. R. v. Dion
In R. v. Dion (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal from a conviction for first-degree murder. The court considered both the traditional, and the similar 'principled', hearsay state-of-mind exception:(1) The Applicable Law
[28] There are two hearsay exceptions that can permit the admission of out-of-court statements made by a person as evidence of their state of mind.
[29] First, there is the traditional, fixed, “state of mind exception” to the hearsay rule.[2] Pursuant to this exception, a statement made by a person may be admitted if it discloses their relevant, present existing state of mind and the statement was made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 59. Evidence satisfying this exception will be prima facie admissible, but only “in order to demonstrate the intentions or state of mind of the declarant at the time the statement was made”: Starr, at para. 168, quoting R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 925. Statements admitted pursuant to this exception cannot be used to establish the past acts or events that the statements describe: Smith, at p. 927.
[30] Second, hearsay evidence may be presented to establish a person’s state of mind pursuant to the principled hearsay exception: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at paras. 73, 92, leave to appeal refused, [2018] S.C.C.A. No. 508; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 102, leave to appeal refused, [2010] S.C.C.A. No. 152. Whereas admissibility under a “traditional” exception is determined by examining whether set legal admissibility preconditions are present, admissibility under the principled exception is determined by a contextual case-by-case assessment of whether it is “necessary” to admit the hearsay evidence, and whether the hearsay assertion is supported by indicia of reliability that meet a threshold warranting its admission, called “threshold reliability”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49; Starr, at paras. 208–9; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 100, 112, leave to appeal refused, [2014] S.C.C.A. No. 193.
[31] Unlike statements admitted pursuant to the traditional state of mind exception, statements admitted pursuant to the principled exception are not limited to establishing the state of mind of the speaker at the time the statement is made. They can also be used to prove the past acts or events that the speaker has described, provided the circumstances surrounding the making of the hearsay statement establishes those acts or events to the requisite standard of threshold reliability: Smith, at pp. 935–6. Alternatively, hearsay statements can be offered pursuant to the principled exception solely to prove the speaker’s state of mind, as occurred in this case.[3]
[32] Trial judges have a residual discretion to exclude any technically admissible hearsay evidence, including evidence admissible under the principled exception, on the basis that the prejudicial effect of the evidence outweighs its probative value: Smith, at p. 937; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 59, leave to appeal refused [2012] S.C.C.A. No. 8. This residual exclusionary discretion is not likely to result in the exclusion of technically admissible hearsay evidence based on concerns about the reliability of the hearsay statement. This is because the admissibility preconditions built into the hearsay exception are intended to ensure that the hearsay is reliable enough to admit. By finding that the hearsay statement satisfies those preconditions, the trial judge will have already determined that it has sufficient threshold reliability to warrant admission. I note that when Charron J. spoke about the analysis required under the residual exclusionary discretion in Khelawon, at para. 49, she contemplated consideration of factors that go “beyond the strict inquiry into necessity and reliability”.
[33] Relatedly, in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, the Supreme Court of Canada had occasion to consider the possible exclusion of technically admissible hearsay evidence based on reliability concerns. McLachlin C.J., for the majority, spoke of two available paths. First, the hearsay exception itself can be challenged by showing that its admissibility preconditions do not adequately assure necessity and threshold reliability. If successful, this sort of challenge leads to the modification of the hearsay exception: Mapara, at para. 15 (b). Alternatively, the party seeking to have technically admissible hearsay evidence excluded because of lingering concerns about its unreliability may argue that even though the hearsay exception is not deficient, in the factual circumstances of the case the evidence lacks sufficient threshold reliability to warrant admission: Mapara, at para. 15 (c). She observed that if a challenge to the design of the hearsay exception itself has not been successfully initiated, a case-based reliability challenge of this kind will rarely succeed. She explained that this is because “[i]n all but the most exceptional cases” if the exception requires threshold reliability, the reliability argument is “spent” by a finding that those preconditions have been met: Mapara, at para. 34; R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at paras. 75–79. It follows that it will only be in rare cases that concerns about the reliability of technically admissible hearsay evidence will support the application of the residual exclusionary discretion.
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[38] The decision not to pursue the bias concern in oral submissions was well-taken. The bias arguments that Mr. Dion made in his factum related to the risk that the witnesses who testified about Heeley’s statements – most particularly Sunny and Mr. Schapira – were biased against Mr. Dion and therefore not credible. In fact, these bias concerns have nothing to do with whether either of the two hearsay exceptions apply. None of the admissibility preconditions to the state of mind exception require inquiry into the reliability of the reporting witness. And even where the principled hearsay exception is being relied upon as the avenue of admission, the threshold reliability inquiry is concerned with the reliability of the hearsay assertion itself, not the reliability of the testifying witnesses who are recounting the hearsay assertion: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 50. This is because the reliability of a testifying witness can be fully and directly assessed by the trier of fact. At most, the bias of a testifying witness is a factor that can influence the exercise of the residual exclusionary discretion: see R. v. Humaid, (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57, leave to appeal refused, [2006] S.C.C.A. No. 232, quoted with approval in Blackman, at para. 51. I will therefore address the bias issue in the following analysis only as it relates to the exercise of the residual exclusionary discretion.
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(a) The Ruling on the State of Mind Exception
[41] As I have explained, when a trial judge decides whether evidence is technically admissible under a traditional hearsay exception, their task is to determine whether the fixed preconditions to admission provided for in the exception are satisfied. To resolve whether the traditional state of mind exception was met, the trial judge’s task was to determine whether the hearsay evidence being offered consisted of statements made by a person that disclose their relevant, present existing state of mind, and whether those statements were made in a natural manner and not under circumstances of suspicion: Starr, at para. 168; Griffin, at para. 59. ...
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[42] The sole argument pursued by Mr. Dion that warrants consideration in determining whether the trial judge erred in applying the state of mind exception relates to the remoteness of some of the statements the trial judge admitted. During oral argument, Mr. Dion submitted that remote statements are not admissible under the “state of mind” exception because that exception is confined to evidence of “present” states of mind and therefore cannot be relied upon to prove states of mind a person held in the past. With respect, this submission misapprehends the “present” state of mind requirement. It is not concerned with how long ago the speaker held the state of mind. It requires instead that the state of mind must be “present” at the point in time that the statement evidencing that state of mind is made. Justice lacobucci made this clear in Starr when he explained that the “exception to the hearsay rule arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made”: at para. 168, quoting Smith, at p. 925 (emphasis added). The reason that the exception requires the statement to be contemporaneous with the state of mind it is said to show is that this coincidence in time permits the context in which the statement was made to be considered in deciding whether the speaker was actually experiencing that state of mind: See the discussion of McLachlin C.J., dissenting in the result but not on this ground, in Starr, at paras. 6–7.
[43] This is not to say that the remoteness in time between the experience of a state of mind and the criminal act at issue will play no role in determining whether the state of mind exception is met. A state of mind cannot be proved pursuant to this exception unless it is relevant to an issue in the case: Griffin, at para. 59. And there can be no question that the passage of time can render a state of mind irrelevant. In R. v. Wills, 2007 CanLII 6898 (Ont. S.C.), aff’d 2011 ONCA 468, for example, a statement by the victim that she wanted to end her relationship with the accused made two years before she died was found to be too remote in time to be logically connected to the event. . R. v. Dent
In R. v. Dent (Ont CA, 2023) the Court of Appeal considered the 'state of mind' hearsay exception:[98] Nor am I persuaded by the other illustration Ms. Dent offered, namely the trial judge’s finding that Ms. Oxley had “pro-social informative initiatives” relating to the open sharing of information. This finding did not depend on an inadmissible hearsay use of electronic statements Ms. Oxley made. In appropriate cases, words spoken out of court can stand as circumstantial evidence of a speaker’s state of mind. In this case, for example, words spoken by Ms. Oxley to Ms. Dent about what they should do with the information they were gathering about Mr. Lalonde could arguably be used as circumstantial evidence of her objective. Even if her statements could not properly be used as circumstantial manifestations of her relevant state of mind in the fashion I have just described, they would qualify as admissible hearsay statements of her present intention. They were contemporaneous statements of Ms. Oxley’s present intention made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168; R. v. Cote, 2018 ONCA 870, 143 O.R. (3d) 333, at para. 22; R. v. P.(H.R.) (1990), 58 C.C.C. (3d) 334, at p. 341 (Ont. H.C.J.). . R v Cote
In R v Cote (Ont CA, 2018) the Court of Appeal sets out the state of mind exception to the hearsay exclusion rule:[22] In Starr, at para. 168, Iacobucci J., for the majority, quoted R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at p. 925 stating that an “exception to the hearsay rule arises when the declarant’s statement is adduced 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 (CanLII), 314 C.C.C. (3d) 336, at para. 63.
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