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EVIDENCE - Admissibility - Hearsay rule - Exceptions - Necessary and reliable evidence

Monday, August 10, 2020 @ 9:06 AM  


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Appeal by the accused from conviction and sentence for second-degree murder. The appellant stabbed his intimate partner to death in her own home after he discovered she wanted to end the relationship. The trial judge imposed a minimum period of parole ineligibility of 15 years. The appellant admitted to killing the victim but claimed he did so in self-defence. The victim discussed her plan to end the relationship with friends and family prior to her death. The appellant argued the trial judge erred in allowing the jury to hear statements made by the victim to a friend and her brother-in-law before her death because these antemortem statements had no probative value in relation to the issue of motive. He also disputed the admission of the appellant’s text messages to his landlord and various friends relating to the appellant’s financial difficulties, job prospects and his relationship with the victim that included breaking up and fighting. The aggravating factors noted by the trial judge were the intimate nature of the relationship, that it was a relationship of trust, that the victim was murdered in her own home, that the appellant stalked her by reading her Facebook messages, tracked her down, lay in wait for her, and brought her back with him to the house where he attacked her after she went to sleep. The appellant argued the 15-year period of parole ineligibility was demonstrably unfit and should be reduced to 12 years. He challenged the trial judge’s finding that he put a pillow over the victim’s face before he murdered her.

HELD: Appeals dismissed. The trial judge’s reasoning in relation to the admissibility of the antemortem statements was entirely sound. He identified and applied the correct law. He made supportable findings of fact. Deference should be shown to his assessment of the probative value of the statements versus their prejudicial effect. The trial judge’s decision to admit the appellant’s text messages also disclosed no error. There was significant probative value in the texts, which indicated the appellant’s state of mind, as revealed by his own words, and no identifiable prejudicial effect. The trial judge complied fully with the requirement for careful instructions to the jury. The trial judge made the reasonable inference that the appellant placed the pillow on the victim’s face while she was still alive and being stabbed. The evidence supported the inference drawn by the trial judge that the appellant placed a pillow over the victim’s face while he set about stabbing her or, at least, at the point when she was bleeding to death. The trial judge did not treat this finding as an aggravating factor. There was no basis to justify interfering with the trial judge’s conclusion that the period of parole ineligibility should fall at the higher end of the range for the murder of an intimate partner. The murder was closer to first-degree murder than manslaughter. The common law has understood for some time that the murder by a man of the woman with whom he had been in an intimate relationship called for a more significant period of parole ineligibility. The nature of the parties’ relationship and the breach of trust inherent in that relationship were relevant and essential considerations for the trial judge in his analysis of what constituted aggravating factors in this case. The particularly aggravating circumstances of the victim’s murder were appropriately recognized by the significant period of parole ineligibility imposed on the appellant. Sentence: Life imprisonment; 15-year parole ineligibility.

R. v. Butcher, [2020] N.S.J. No. 223, Nova Scotia Court of Appeal, D.R. Beveridge, C.A. Bourgeois and A.S. Derrick JJ.A., June 25, 2020. Digest No. TLD-August102020002