R.+c.+Smith,

Crown bases theory on 4 phone calls placed by AMK to mother the night before her death. In the first phone call, AMK told her mother she had been abandoned; in the second, she stated that the accused [Larry] had not yet returned. In the third, traced to a payphone, AMK stated that Larry had returned and that she no loner needed a ride; and in the fourth, AMK told her mother that she was “on her way”. Call traced to service station at which her body was found. There was a further phone call traced to the accused from the same service station to his residence in Detroit. A witness testified that he had seen the accused at the pay phone. Additional evidence: Hope Denard stated that she had traveled with the respondent a month ago from the US to Windsor, and that when she refused to smuggle drugs back into the USA , he abandoned her. Defence contends that respondent did abandon AMK, but that he then returned to Detroit. This meant that the Court of Appeal could not state with certainty that the accused was with AMK at the time of her murder [this was the effect of the third and fourth phone calls], meaning their verdict did not stand. Court of Appeal also concluded that the accused’s identity as a drug dealer was relevant to context, but did not necessarily add to the Crown’s charge of murder. 1. Whether the Court of Appeal for Ontario erred in law in holding that evidence of statements of the deceased during the first and second telephone conversations were admissible only to show her state of mind, and that evidence of the statement of the deceased during the third telephone conversation was hearsay and inadmissible for any purpose. 2. Whether or not the Court of Appeal erred in law in holding that, in the circumstances of the case, the proviso in s. 686(1)(//b//)(iii) had no application. à Hearsay Evidence: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. [Persons who are not witnesses are not available for cross-ex]. Theory is based on risk of inaccuracy and untrustworthiness. à Exception to the hearsay rule: 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. State of mind argument accepted by the common law, and in the Canadian law of evidence. à Given this, the victim’s first two statements cannot be used to prove her abandonment [and murder] because they are merely to serve as indicator’s of her state of mind [and not for what they actually “say”]. *In a later case [Khan], McLachlin set up criteria for hearsay that needed to be addressed: 1. whether reception is necessary and 2. whether evidence is reliable. Khan signaled the end of categorical approaches to admissions of evidence [rigid]. Necessity here should be understood as flexible. *In the present case, the declarant could have been a competent witness, but is now dead. It could be seen as necessity that this evidence be used as is because reception is impossible. In the first two phone calls, there is no reason to doubt veracity. [ what would be the motive to lie?] * The third phone call, however, is less certain because AMK may have lied to deceive her mother. It is also not impossible that she did not observe the respondent’s return at the time she telephoned her mother. Also strange that she confirmed that Larry had returned and she did not need a ride before confirming whether she could ride back with L.  * In a previous conversation, it was suggested that Philip come to collect AMK and she refused [P believed to have assaulted AMK in the past]. That she would rather stay is significant. à AMK traveling under a false name. Not inconceivable that she should deceive her mother. *Third conversation, therefore, does not satisfy requirements for reliability. // Evidence of H. Denard: // Drug-dealing is not a basis for murder charges. Evidence is thus considered irrelevant because it does not address question of murder.
 * Facts: ** Accused convicted of murder of AMK. AMK’s body found outside a hotel. Both American citizens residing in Detroit . Reports show that both drove across Canadian border and spent a weekend together at a hotel in London, Ontario . Body of AMK was discovered the following day. Crown theory: accused is a smuggler, asked AMK to smuggle drugs concealed in her body across the border, AMK refused. According to crown, accused abandoned AMK in hotel, but then returned, strangled her to death, and disposed of her body.
 * History ** : Court of Appeal stated that what respondent said in phone calls to her mother was hearsay, but then decided that it fell within the acceptable category for exceptions in order to establish AMK’s state of mind at the time of the calls. Third phone call did not fall within exception.
 * Issues**:
 * Ratio ** : To determine exceptions to ‘hearsay evidence’ rule, you need to determine 1. whether reception is necessary and 2. whether evidence is reliable.
 * Reasoning**:
 * Conclusion ** : New trial ordered.