Her Majesty the Queen
[REDACTED], for the Crown
[REDACTED], Esq. -- for the Accused
THE COURT: The defence has brought an application to tender hearsay evidence of an alleged suicide attempt on the part of Mr. [REDACTED]. At its highest, the evidence could possibly support the proposition that the deceased and her mother discovered Mr. [REDACTED] in the basement of their house approximately one month before the murder trying to hang himself when he was standing on a chair with a noose around his neck. The deceased and the grandmother assisted Mr. [REDACTED] down from that chair. After further discussion took place between the deceased and Mr. [REDACTED], that particular crisis seems to have abated.
[REDACTED] has testified before me and at the preliminary inquiry. She was a very close friend of the deceased and confidante of the deceased. According to her evidence, the deceased told her about this incident and indicated that the cause of the alleged suicide attempt was both Mr. [REDACTED]'s depression over losing his job, and also because she had asked him to leave the house.
At another point in her interview with the police (p. 68 of Exhibit A) [REDACTED] indicated that the action on the part of Mr. [REDACTED] was "because he needed some attention or people to feel sorry for him." The defence has submitted that the evidence of this alleged suicide attempt is relevant for two purposes:
1. to show that the relationship was unstable and filled with problems beyond the regular vicissitudes of a marital relationship;
2. to show that the third party was mentally or emotionally unstable at the time and, therefore, could have killed the deceased.
Mr. [REDACTED] has submitted that the suicide attempt is an act of violence and, therefore, the jury should be entitled to consider that evidence in terms of whether Mr. [REDACTED] suffered from emotional instability which could have led to the killing of his spouse. The first purpose which is to show the instability of the relationship may have some relevance for the defence in order to underline the proposition that Mr. [REDACTED] could have been the perpetrator of the murder. The suicide attempt may lend some probative value to the defence's assertion that the relationship was troubled and that the third party, therefore, had a motive to kill the deceased.
In my view, however, there is ample additional direct and admissible hearsay evidence that I am allowing in at trial to make the same point that the relationship was turbulent and that there was a great deal of acrimony which existed between Mr. [REDACTED] and the deceased. There are many other pieces of direct and admissible hearsay evidence to make that same point in a compelling
fashion. Although I concede that the alleged suicide attempt may, to some small degree, add to that point, in my view, the point can be well made with other evidence.
The second purpose that [REDACTED] wishes to tender this evidence is to show that the third party was either mentally and emotionally unstable to the point that he could have committed this murder. In other words, if he could have committed an act of violence towards himself, he could have easily committed an act of violence towards the deceased. In my view, it is too big a
leap of logic to say that because Mr. [REDACTED] was emotionally unstable at the time of the murder, that he, therefore, may have killed his common-law wife.
There is no logical link that I can find in the evidence to support the proposition that because Mr. [REDACTED] may have been emotionally unstable, he, therefore, committed the murder of his wife.
If evidence had existed, for example, that the deceased or the grandmother had heard Mr. [REDACTED], at the time of the alleged suicide attempt, state, "I would also like to kill my wife as well as myself," or, "I would have preferred to have killed my wife but she wasn't available", there may have been a link between the attempt and the murder. Without that kind of linkage the
evidence of the alleged suicide attempt is unrooted and unanchored to anything that could support the proposition that Mr. [REDACTED] was the perpetrator of the murder, as opposed to Mr. [REDACTED].
There is also a real danger in permitting the introduction of evidence. I have already conceded that it may have minor probative value on the issue of the nature of the disintegrating relationship of Mr. [REDACTED] and his common-law spouse.
The Supreme Court of Canada in the decision of Winko v. British Columbia (1999), 135 C.C.C. (3d) 129, has recognized that there are still stereotypical notions that surround the issue of mental illness in our society.
McLachlin, J., as she then was, in dealing with the constitutionality of the mental disorder provisions of the Criminal Code, made the following point at page 153 of her decision:
"Part XX.1 thus recognizes that, contrary to the stereotypical notions that some may still harbour, the mentally ill are not inherently dangerous. The mentally ill have long been subject to negative stereotyping and social prejudice in our society based on an assumption of dangerousness."
She then quotes from a number of decisions and refers to the Law Reform Commission of Canada as follows:
"In 1975, the Law Reform Commission of Canada recognized that these negative stereotypes of the mentally ill had found their way into the criminal justice system:"
Although I well appreciate that the Law Reform Commission's pronouncement in 1975 is more than a generation old, the recognition by the Chief Justice of Canada that stereotypes still prevail gives this Court pause for concern.
The test that I must consider has been set out in R. v. Potvin,  1 S.C.R. 525 per La Forest, J. (Dickson C.J. concurring) as follows: "...the rule [is] that the trial judge may exclude admissible evidence if its prejudicial effect substantially outweighs its probative value;" (p. 531).
That test was adopted by the Supreme Court of Canada per McLachlin, J. for the majority in R. v. Seaboyer,  2 S.C.R. 577.
It follows from Seaboyer and Potvin that the prejudice must substantially outweigh the value of the evidence before a judge can exclude admissible evidence that is relevant to a defence allowed by law. I have previously ruled that the defence is in a position to call direct and other previously determined to be admissible hearsay evidence to support the proposition that Mr. [REDACTED] may have committed the murder as opposed to Mr. [REDACTED].
In my view, allowing this further evidence before the jury would cause substantial prejudice to the Crown. It could be used by the jury to fuel already prevalent stereotypes about the mentally ill and their propensity for violence.
Although there may be, as I have already said, some minor relevance to the suicide attempt for the defence, in my view, the potential for the jury to use this evidence for improper purposes is extremely high.
A direction from this Court to the jury concerning the limited purposes upon which they could use this evidence would not suffice to correct the improper image that could easily be created by this evidence.
Considering all of the other evidence available to the defence that I have previously ruled to be admissible to show that the relationship was troubled and acrimonious, I do not believe that there is any significant prejudice to the defence if this evidence is not permitted to be entered. The proper balancing in this case leads me to the conclusion that the prejudice in tendering this evidence would substantially outweigh the value of the evidence and that, therefore, it should be excluded.
There are two other points that I wish to address. In my view, the evidence by itself is ambiguous in its interpretation. It is not clear to me that the only conclusion to be drawn from the evidence is that Mr. [REDACTED] attempted to commit suicide. I reach that conclusion based upon the comments made by Ms [REDACTED] that Mr. [REDACTED] was attempting to "draw some attention to
himself or for people to feel sorry for himself." (p. 68)
The evidence is sufficiently ambiguous as to what Mr. [REDACTED] was intending to do at the time that, on that basis alone, it could also be excluded. This is not a question of fact to be assessed by the trier of fact. It is an issue of threshold reliability.
I make that observation, although in terms of making this decision, I have decided this application on the issue of substantial prejudice to the Crown.
This ruling should also be clear that I am not precluding the defence from cross-examining the third party on this issue. The defence is only precluded from leading evidence in the defence case to rebut the position of Mr. [REDACTED], if Mr. [REDACTED], in cross-examination, denies having tried to commit suicide.
Mr. [REDACTED] is not, however, able to cross-examine Mr. [REDACTED] to the effect that Ms [REDACTED] had discussed this matter with the deceased, and whether Ms [REDACTED]'s viewpoint garnered from the deceased was that Mr. [REDACTED] attempted to commit suicide.
I am satisfied on the basis of the totality of the evidence that there is no logical or practical link to connect the alleged suicide attempt to the commission of the murder. I have reached the conclusion that the prejudicial value of this evidence would substantially outweigh the probative value of the evidence.