Stuart O'Connell Criminal Law Blog

Pursuant to the traditional, fixed, “state of mind exception” to the hearsay rule exception, an out-of-court 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.  FN1. 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”. FN2. Statements admitted pursuant to this exception cannot be used to establish the past acts or events that the statements describe. FN3 The hearsay exception in action R. v. Griffin provides an example of the hearsay exception in action. In that case, the sole issue at trial was the identity of P’s killer.   P was in hiding in the weeks leading up to his murder and during this time stated to his girlfriend, “If anything happens to me it’s your cousin’s family.” ...

 It is an error in principle for a sentencing judge to fail to provide notice and an opportunity for further submissions when they are considering exceeding the Crown’s position on sentence.  FN1 Where the sentencing judge fails to provide notice and/or an opportunity for further submissions, there are three types of errors in principle that would warrant intervention by the appellate court:   1. The accused would have provided additional information to the sentencing judge if given notice that he thought the Crown’s recommendation was too low and this additional information would have impacted sentence; 2.    The sentencing judge provided unclear or insufficient reasons explaining the imposition of the harsher sentence; 3. The sentencing judge gave erroneous reasons for the harsher sentence. (Standing alone, however, flawed reasoning will not be enough; the appellant must also satisfy the court that this reasoning impacted the sentence). FN2    ...