The Defence Toolkit – February 24, 2024: “A single photo”

This week’s top three summaries: R v Shaw, 2024 ONCA 119: #Crown closing, stranger ID, R v Pelletier, 2024 SKCA 12: #spontaneous utterance, and R v Clyde, 2024 ONCA 113: #Crown closing.

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R v Shaw, 2024 ONCA 119

[February 16, 2024] Inappropriate Crown Closing, Stranger Identification, Defence Hearsay, Reasonable Doubt [Reasons by Copeland J.A. with A. Harrison Young and L. Sossin JJ.A. concurring]

AUTHOR’S NOTE: This case is full of useful principles of law and great explanations of the same. The inappropriate Crown closing involved statements to the jury positing that the key Crown witness was not given consideration for his testimony as well as some things for which there was no evidence. The prosecution cannot supplement the record with their submissions on facts, their closing must be based on evidence before the jury. The stranger identification portion of the case reviews the general principles in non-fleeting glance stranger identification and concludes there was an unreasonable verdict. There were multiple significant problems with the identification including significant intoxication and the use of a single photo by the police instead of a lineup. In terms of Defence Hearsay, a court must consider the availability of the person who gave the statement for cross examination as a significant procedural guarantee of reliability. Finally, for the issue of reasonable doubt, if a jury asks why the Crown would not call certain witnesses, the answer they should be given involves the fact that a reasonable doubt can arise from an absence of evidence.

A. INTRODUCTION

[1] The appellants were each convicted of first-degree murder in the shooting death of Jarryl Hagley. They appeal their convictions.

[2] Mr. Hagley was shot in the early morning hours of October 16, 2016, in a Pizza Pizza restaurant on Weston Road in Toronto. In light of the trial evidence and how the case was presented to the jury, the jury must have found that Lenneil Shaw was one of two shooters, Shakiyl Shaw was the getaway driver, and Mohamed Ali-Nur was the second shooter.

[3] The convictions of all three appellants rested on the identification evidence of Winston Poyser. Mr. Poyser was present in the car with the driver and the two shooters. His car was used to drive to and from the Pizza Pizza. He went to the Pizza Pizza with the shooters, standing outside by the door. He ran from the scene with the shooters. His car was visible on surveillance video, and he was the only person whose face was sufficiently visible to be identifiable from the video from outside the Pizza Pizza. He became the centrepiece of the Crown’s case against the appellants.

[4] Mr. Poyser had known the Shaw brothers for a significant period of time prior to the night of the shooting. He had dated their sister. Because Mr. Poyser knew the Shaw brothers, and was not purporting to make a stranger identification, the challenge to his evidence raised on their behalf at trial focused on his credibility.

[5] By contrast, Mr. Poyser was not previously acquainted with the second shooter, who he met the day of the shooting and was introduced to by the name of Cron Dog. Mr. Poyser identified Mr. Ali-Nur as Cron Dog. As I will explain in the analysis below, there were significant frailties to Mr. Poyser’s identification evidence as it related to Mr. Ali-Nur. Most notably, he was unable to provide a description of Cron Dog with any degree of detail and he was never asked to select Cron Dog from a line-up. Although it is agreed that the police had a photo line-up prepared and available when they interviewed Mr. Poyser, they instead showed him a single photo of Mr. Ali-Nur and asked if he was Cron Dog. A similar onephoto identification process was repeated when Mr. Poyser pled guilty to accessory after the fact to murder, and again at trial, followed by an in-dock identification. Not surprisingly, the challenge to Mr. Poyser’s evidence at trial as it related to Mr. Ali-Nur focused on the reliability of his identification evidence, in addition to challenging his credibility.

[8] I would allow the appeals of all three appellants. The trial judge erred in his response to the jury’s question about the absence of corroborative evidence, in failing to give a corrective instruction to the Crown’s inappropriate closing address, and in failing to allow the jury to use the hearsay statement by Mr. Poyser to his own lawyer that he knew the perpetrators of the shooting to carry guns in the past for the truth of its contents.

[9] This trial turned on the credibility and reliability of Mr. Poyser’s identification of the appellants as the perpetrators of the murder. Because of significant challenges to the credibility of Mr. Poyser’s evidence – and the reliability as it related to Mr. Ali-Nur – both the Crown and defence argued the case to the jury by focusing on whether or not there was evidence corroborating Mr. Poyser’s account. The three errors that I identify all bear directly either on the credibility of Mr. Poyser or the extent to which his evidence may have been corroborated by other evidence. In my view, taken cumulatively, these errors had an impact on the tools given to the jury to address the credibility issues they were tasked to decide, and rendered the appellants’ trial unfair.

[10] I would order new trials for Lenneil and Shakiyl Shaw. In relation to Mr. AliNur, in addition to the errors that would warrant a new trial, in my view, the verdict against him is unreasonable. As a result, I would enter an acquittal for Mr. Ali-Nur.

C. ERRORS WHICH REQUIRE A NEW TRIAL

(1) Inadequate answer to the jury’s question about the absence of evidence

[54] During deliberations, the jury asked a question about the absence of corroborative evidence. In my view, in the context of the evidence and arguments in this trial, the trial judge’s response was inadequate in its failure to reiterate to the jury that a reasonable doubt may arise from the absence of evidence. Both the Crown and the defence argued their case to the jury focusing on whether there was corroboration for Mr. Poyser’s evidence. All parties were alive to the frailties of Mr. Poyser’s evidence. As a result, the presence or absence of corroborative evidence was a central issue put before the jury. A significant plank of the defence, in addition to the challenge to Mr. Poyser’s credibility, was the frailty of the evidence available to corroborate his evidence and the absence of other evidence to implicate the appellants in the murder. This was a case where the principle that a reasonable doubt may arise from the absence of evidence was important. Further, not only did the trial judge fail to reiterate that a reasonable doubt may arise from the absence of evidence, to the extent that his answer made reference to gaps in the evidence and the principle of reasonable doubt, it did so in a manner favourable to the Crown, only telling the jury that the evidence did not have to answer all the questions.

The jury’s question, submissions of counsel, and the trial judge’s response

[55] The jury retired to deliberate at the end of the final instructions at 5:30 p.m. on May 21, 2019. After deliberating for approximately one hour, the jury asked the following question:

In what scenario/s would the Crown elect not to call witnesses that may corroborate key evidence? [Emphasis in original.]

[59] The trial judge provided the following instruction to the jury approximately 15 minutes after the question was asked, on the evening of May 21:

As I have already indicated in paragraph 16 of my instructions, which instructions you will have very shortly,4 the evidence need not answer every question the case raises, and you must not speculate about what other evidence might have been called. I would only add to that that you must not speculate about why evidence was not called. [Emphasis added.]

[60] The jury did not ask any other questions. They returned their verdicts a dayand-a-half later, on the morning of May 23, 2023.

Positions of the parties

[61] The appellants submit that the trial judge’s answer to the jury’s question was legally incorrect. The jury is entitled to consider the absence of evidence when deciding whether the Crown has met its burden of proof, as per the Supreme Court’s decision in R. v. Lifchus, [1997] 3 S.C.R. 320. The Crown is not required to call certain witnesses, but the failure to do so may leave a gap in the Crown’s case, leaving the burden of proof undischarged.

Analysis

[64] The legal principles applicable to answering questions from a jury are not in dispute. A question from a jury indicates that the jury needs help. A question from a jury usually concerns an important point in the jury’s reasoning, identifying an issue on which they require direction. It is an indication of a particular problem the jury is confronting – on which they are focused. Although jury instructions must be read as a whole, courts have recognized that answers to jury questions will be given special emphasis by jurors. As a result, a trial judge has an obligation to fully and properly answer a question posed by the jury. A complete and careful response is necessary even if the subject-matter of the question has been reviewed in the main charge: R. v. Grandine, 2017 ONCA 718, 355 C.C.C. (3d) 120, at para. 62; R. v. S.(W.D.), [1994] 3 S.C.R. 521, at pp. 528-30; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95; R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 34.

[65] The answer given to the jury’s question by the trial judge was correct as far as it went; however, in my view, given the manner in which this case was put to the jury by both the Crown and defence, it was clear that the jury’s question was raising a concern about gaps in the evidence – in particular, gaps arising from lack of corroboration. In the circumstances, a full response required the trial judge to reiterate that a reasonable doubt may arise from an absence of evidence.

(2) The failure to provide a jury instruction on inappropriate comments in the Crown’s closing address

[78] In his closing address to the jury, Crown counsel (not counsel on appeal) made comments that I conclude were not supported by the evidence at trial and crossed the line from forceful advocacy into giving evidence and personal opinion to the jury. The core of the impugned comments, which I outline in more detail below, were that Mr. Poyser did not get a benefit for testifying for the Crown and that there was not evidence sufficient to support a case against him for murder.

[79] The inappropriate comments bore directly on the credibility of Mr. Poyser’s evidence and were used by the Crown to rebut a central thrust of the defence challenge to Mr. Poyser’s credibility – that he was an accomplice to the shooting of Mr. Hagley and became a Crown witness in order to get the benefit of avoiding a trial for first-degree murder. The unfairness in the Crown’s closing address and the failure of the trial judge to correct it in the jury instruction had the effect of leaving the issue of Mr. Poyser’s credibility – the central issue in the trial – with the jury in a manner which undermined the fairness of the trial. In combination with the two errors I identify in these reasons, it requires a new trial.

Impugned elements of the Crown’s closing

[80]….As part of that argument, the Crown made repeated references to Mr. Poyser’s guilty plea to accessory after the fact to murder and asserted that he had not received a benefit as a result of his guilty plea and testifying for the Crown. Crown counsel buttressed this argument by asserting that there was “no case against him for murder or manslaughter”:

And no doubt counsel will raise this point with you in his submissions and suggest that because of this he got a great deal on his guilty plea as an accessory after the fact, suggesting that he got some benefit for his cooperation with authorities

His plea to accessory after the fact was supported by the evidence against him. He got the sentence that he deserved for what he did. There was no deal in place forcing him to testify in front of you here. He was given no special favours. This is important, as the defence will suggest that he is lying in order to get a deal.

What would have happened to him if he had not given a statement to police? I suggest he would have seen the same outcome in his case. There’s no case against him for murder or manslaughter. Did not do anything to assist in these crimes. He was merely present. Remember that the Crown has to prove the case against him beyond a reasonable doubt as well. His only fault lies in what he did after the murder. He got no favours from the Crown or the police. He simply came in and did the right thing, pointing out those responsible for this crime to the police and coming to court and telling the truth about a terrible situation that he got caught up in. [Emphasis added]

[81] In addition, the Crown asked the jury to take into account, in assessing Mr. Poyser’s credibility, evidence that he had potentially developed PTSD as a result of seeing his friend shot to death years earlier:

…please remember a few things about Winston Poyser and his evidence. First, he did not finish high school. He has very little formal education and does temporary work as a general labourer. The reason for him not finishing high school was that his best friend was shot and killed in front of him. This emotionally scarred him, leading him to depression and anxiety issues. I suggest he probably has some form of PTSD from this event. [Emphasis added.]

However, there was no evidence that Mr. Poyser had PTSD.

[82] The Crown also asserted that Mr. Poyser did not live a criminal lifestyle, deal drugs, or have any involvement with any gangs, and that these were factors that supported his credibility.

His criminal record, apart from the involvement here, is very minor. He had one conviction previously for breakand-enter, committed when he was a young adult. He is not someone who lives a criminal lifestyle. He does not deal drugs. He’s not involved in guns and street gangs. [Emphasis added.]

However, there was no evidence one way or the other on this issue.

Positions of the parties

[86] The appellants submit that the trial judge erred by not correcting misleading statements and comments that were not supported by the trial evidence made during the Crown’s closing address because they were sufficiently prejudicial to undermine trial fairness. The focus of the appellants’ arguments are the comments in the Crown closing that Mr. Poyser was not given any special favours by the Crown – effectively telling the jury that Mr. Poyser received no benefit from cooperating and becoming a Crown witness – and the related comment that there was “no case” for murder or manslaughter against Mr. Poyser. The appellants argue that these comments were misleading and contrary to the trial evidence….

Analysis

[91] A trial is an adversarial process. Like defence counsel, Crown counsel are permitted to advance their positions forcefully to a jury:R. v. Daly (1992), 57 O.A.C. 70, at p. 76. However, there are limits to proper advocacy. A closing address by Crown counsel must be neither inflammatory nor unfair. Counsel must base their submissions on the evidence at trial. This means that counsel cannot supplement the trial evidence by effectively giving evidence in their closing submissions. Nor are counsel permitted to misstate the trial evidence. Further, counsel are not permitted to put before the jury in closing submissions matters which are based on counsel’s personal experience or observations, rather than the evidence at trial: R. v. Rose, [1998] 3 S.C.R. 262, at para. 107; R. v. Pisani, [1971] S.C.R. 738, at p. 740; R. v. B.E.M., 2023 SCC 32.

[92] Not every improper address to a jury will require a corrective instruction. Not every improper address where no corrective instruction is given will render a trial unfair such that a retrial is required. Some deference is accorded to the assessment by a trial judge as to whether a corrective instruction is required. However, a trial judge has a duty to present the case fully and fairly to the jury. Where an improper address by Crown counsel bears directly on the central issue in a trial and no corrective instruction is given by the trial judge, it may render the trial unfair and require a new trial: Rose, at paras. 124-27; Pisani, at pp. 740-41.

[93] In my view, the Crown’s closing address in this case crossed the line from forceful advocacy into giving evidence and personal opinion. The improper comments in Crown counsel’s closing submissions were particularly problematic because, not only were they not based on the trial evidence, but on the issue of the Crown stating that Mr. Poyser received no benefit from becoming a Crown witness and that there was “no case against him for murder or manslaughter”, the Crown’s closing was contrary to the trial evidence.

[94] First, the Crown’s comments to the jury that Mr. Poyser did not receive a benefit from becoming a Crown witness were contrary to the evidence and involved the Crown offering his personal opinion in closing submissions. Indeed, the trial judge agreed that Mr. Poyser received a benefit from becoming a Crown witness. During the defence objections to the Crown’s closing, the trial judge stated:

I don’t disagree that he got a benefit [from cooperating and the guilty plea to accessory after the fact]. You don’t have to persuade me of that. I think he got a very handsome benefit.

[95] While it is true that Mr. Poyser was never promised any particular consideration before agreeing to cooperate with police and provide a statement, the suggestion that he received no benefit whatsoever was misleading to the jury. The chronology of events involved in Mr. Poyser becoming a Crown witness and the evidence potentially available in a prosecution against Mr. Poyser make clear that he obtained a benefit.

[96] As noted above, Mr. Poyser was the only person identifiably visible in the videos from the Pizza Pizza scene when the shooting took place. His initial actions after the shooting were to destroy evidence. He only came forward when he saw television news stories about the shooting which made clear that he was identifiable by both his face and his car. He contacted counsel and tried to obtain immunity from prosecution.

[97] It is true that the police did not make any promises to him at the time he gave his statement. When he surrendered to police, he was charged with first-degree murder. He then signed a detailed agreement with police before giving a statement. The agreement stated that he desired favourable treatment, but was receiving no concessions, promises, or guarantees in return for his statement to police. He would be immune from having his statement used against him, but not immune from prosecution. He acknowledged that he would be tried separately and could be compelled to testify at the trial of anyone else charged.

[98] However, the subsequent events are clear that Mr. Poyser did obtain a benefit. He was charged initially with first-degree murder, but ultimately pled guilty, with the Crown’s consent, to accessory after the fact to murder, and the firstdegree murder charge was withdrawn. There is no question that he received a benefit in his sentencing for accessory after the fact to murder. As noted above, the transcript of Mr. Poyser’s guilty plea was clear that, when he pleaded guilty, his counsel asked for credit for cooperation. Crown counsel agreed he should have a sentencing credit for cooperation and the sentencing judge agreed. 6 It was misleading for Crown counsel to make the submission to the jury that Mr. Poyser “received no special favours” and to suggest that he obtained no benefit from cooperating with the police and becoming a Crown witness when the transcript of his guilty plea establishes that he was given sentencing credit for his cooperation.

[99] Crown counsel on appeal sought to justify the statement that Mr. Poyser “received no special favours” by arguing, in effect, that he received appropriate consideration for his cooperation; thus it was accurate to say he received no “special” favours. With respect, this is parsing and would not have been understood this way by the jury….

[100] Second, on the objective evidence available from the trial record in this case, it would be difficult to conclude that there was not a triable case against Mr. Poyser for murder or manslaughter. In other words, he also received the benefit of not being tried for murder. Although that issue was for the jury to weigh, in my view, the statement in the Crown’s closing that there was “no case” against Mr. Poyser for murder or manslaughter is contrary to the evidence. The objective evidence was further bolstered by Mr. Poyser’s own admissions. Whether or not such a prosecution would ultimately succeed is not the issue. The issue is whether it was incorrect on the record before the jury to assert that there was “no case” against Mr. Poyser for murder or manslaughter.

[101] Mr. Poyser admitted to seeing firearms in the basement at Shendale shortly before the group got into his car and drove to Pizza Pizza. His car was used to travel to and from the scene. His car was identifiably caught on video near and at the Pizza Pizza scene. He testified to hearing someone in the car say, “There’s Jarryl.” He got out of the vehicle with the shooters and attended the Pizza Pizza, just outside the door. He was identifiably caught on video outside the Pizza Pizza with the shooters at the time of the shooting. When he heard the shots, he did not distance himself from the event, but rather fled with the shooters in the car – and his flight was captured on video. Mr. Poyser destroyed evidence after the shooting, including wiping the memory card from his car’s dash camera and throwing it down a sewer, discarding the clothes he had been wearing, and wiping the contents of his cell phone and giving the phone to his girlfriend.

[102] It was misleading to assert that there was “no case” for murder or manslaughter against Mr. Poyser. The only way one could reach that conclusion was by accepting the credibility of his account of the events leading up to the shooting – the issue the jury had to decide….

[104] In sum, the Crown’s comments in its closing address that Mr. Poyser received “no special favours” for cooperating with police and testifying and that there was “no case against him for murder or manslaughter” were not based on the trial evidence and represented improper personal opinion by Crown counsel.

[105] I address briefly the comments in Crown counsel’s closing address about Mr. Poyser having PTSD and saying that he did not deal drugs, live a criminal lifestyle, or have any gang affiliation.

[106] There was no evidentiary support for the assertion that Mr. Poyser had PTSD. While Mr. Poyser testified to experiencing depression, anxiety, and problems with his use of alcohol, he did not say he had PTSD. There was no medical evidence that he had PTSD.

[107] There was no evidence about Mr. Poyser’s lifestyle. While it is true that there was no affirmative evidence that he dealt drugs, lived a criminal lifestyle, or had any gang affiliation, there was no evidence negating these propositions….

[108] If they stood alone, the PTSD comment and the comments about Mr. Poyser not living a criminal lifestyle may not have required a corrective instruction. In the defence objections at trial to the Crown’s closing address, these issues were given less prominence. In submissions on appeal, Mr. Derstine conceded that the PTSD comment was less consequential and that, if the Crown had said there was “no evidence” that Mr. Poyser lived a criminal lifestyle, that would have been unobjectionable.

[109] But taken together with the comments about Mr. Poyser not receiving a benefit from becoming a Crown witness and there being “no case against him for murder or manslaughter”, these issues are part of a pattern of the Crown overreaching in its closing address and making comments not supported by the trial evidence in a bid to unfairly bolster the credibility of Mr. Poyser.

[110] In my view, the comments in Crown counsel’s closing that Mr. Poyser received no benefit for his cooperation and becoming a Crown witness and that there was “no case for murder or manslaughter” against him were prejudicial and required a corrective instruction. The trial judge gave none – despite accepting that Mr. Poyser received “a handsome benefit” for his cooperation with police and becoming a Crown witness.

[111] It was, of course, open to the Crown to argue that, despite Mr. Poyser receiving the benefit of a reduced sentence for his cooperation and not facing the jeopardy of a prosecution for murder or manslaughter (which may or may not have been successful), his evidence should be accepted as truthful….

(3) Error in refusing to admit hearsay statement of Mr. Poyser to his lawyer

[112] I would accept the appellants’ submission that the trial judge erred in refusing to allow Mr. Poyser’s statement to his lawyer that he knew the perpetrators of the shooting to carry guns in the past to be used for the truth of its contents. In my view, the trial judge failed to consider all of the circumstances bearing on threshold reliability. In particular, he limited his consideration of substantive guarantees of reliability to whether Mr. Poyser was disinterested at the time he made the statement. He failed to consider as a procedural guarantee of reliability the fact that Mr. Poyser testified at trial and, thus, was available for crossexamination. A proper analysis leads to the conclusion that threshold reliability was sufficiently established and that the jury should have been allowed to consider the statement for the truth of its contents.

Analysis

[121] In my view, the trial judge erred in failing to allow Mr. Poyser’s statement to Mr. Ross that he knew the perpetrators of the shooting to carry guns in the past to be used for the truth of its contents. The trial judge failed to consider indicia of both substantive and procedural reliability that were present in the circumstances in which the statement was made and the fact that Mr. Poyser testified at trial.

[122] The issue of admissibility of a hearsay statement for the truth of its contents is a question of law, and thus reviewable on a standard of correctness. However, part of the admissibility inquiry requires a trial judge to weigh various factors pointing towards and against admissibility. As long as a trial judge addresses the factors relevant to the admissibility inquiry, does not materially misapprehend the evidence relevant to the admissibility inquiry, and reasonably weighs the factors, an appellate court should defer to a trial judge’s weighing of the factors: R. v. S.S., 2008 ONCA 140, 232 C.C.C. (3d) 158, at paras. 29-30.

[123] In my view, in the circumstances of this case, deference is not warranted due to the incomplete and unduly narrow nature of the trial judge’s analysis of substantive and procedural guarantees of threshold reliability….

[124] The only factor the trial judge considered in assessing substantive reliability was whether Mr. Poyser was disinterested at the time he gave the statement – that is, whether he may have had some oblique motive in making the statement. Although not spelled out in the ruling, based on the colloquy with counsel during submissions, the trial judge was concerned that he could not rule out a realistic possibility that Mr. Poyser told his lawyer that he knew the perpetrators of the shooting to carry guns in the past in an attempt to gain the benefit of witness protection. The trial judge took this factor from the Supreme Court decision in Finta, at pp. 854-55.

[125] It is, of course, correct that a witness’ disinterest or interest – their motivation – at the time of making a hearsay statement is a factor relevant to substantive reliability; however, that factor standing alone is an incomplete analysis of substantive threshold reliability. The reference to the witnesses being disinterested in Finta was one factor on the record that the court found supported threshold reliability. But Finta does not represent a statement that disinterestedness is the full substantive reliability analysis. Rather, a trial judge must examine all of the circumstances surrounding the making of the statement to determine if they provide sufficient threshold guarantees of inherent trustworthiness: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 30-31; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para 62.

[126] Even accepting some deference to the factual finding by the trial judge that he could not rule out the possibility that Mr. Poyser was motivated to obtain witness protection when he made the statement to his lawyer, the trial judge was required to consider all of the circumstances in assessing whether there were substantive guarantees of threshold reliability. The trial judge failed to consider other substantive guarantees of reliability. These included:

 the statement was made soon after the events of the shooting, when events were fresh in Mr. Poyser’s mind;

 the statement was made by Mr. Poyser to his lawyer, who, on his trial evidence, he trusted; and,

 the statement was made in the knowledge, authorized by Mr. Poyser, that it would be provided to police in aid of negotiating a deal in relation to his involvement in the shooting of Mr. Hagley. In that context, knowingly providing false information to police would constitute a criminal offence.8

[127] My point is not to show that substantive guarantees of reliability could be a basis in this case, standing alone, to find threshold reliability. They were insufficient standing alone. However, the complete picture in terms of substantive guarantees of reliability was not as one-dimensional as the trial judge’s reasons suggest. While the substantive guarantees of reliability were equivocal, there was a significant procedural guarantee of reliability – cross-examination of Mr. Poyser as a witness at trial.

[128]…The trial judge failed entirely to consider a significant procedural guarantee of reliability – Mr. Poyser’s presence as a witness at trial, subject to cross-examination.

[129] In Bradshaw, Karakatsanis J., writing for the majority, recognized that procedural guarantees of threshold reliability are not limited to circumstances existing at the time the hearsay statement at issue is made. Cross-examination at trial is a significant procedural guarantee of reliability: at paras. 26, 28; see also R. v. Pan, 2014 ONSC 3800, at para. 53, rev’d on other grounds, 2023 ONCA 362, leave to appeal granted, [2023] S.C.C.A. No. 303; R. v. Jama, 2023 ONSC 2375, at para. 148.

[130] The central concern behind the hearsay rule is the inability or reduced ability of the trier of fact to assess the credibility and reliability of a hearsay statement because of the absence of cross-examination: Bradshaw, at para. 26; Khelawon, at paras. 2, 35 and 76; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32. Where the witness is available for cross-examination at trial, the trier of fact is afforded the opportunity to see and hear cross-examination of the declarant about the hearsay statement, so that the credibility and reliability of the witness may be tested. It is important to recall that in Bradshaw the hearsay declarant had refused to be sworn and testify at trial. As a result, cross-examination at trial was not available as a procedural guarantee of reliability on the facts in Bradshaw.

[131] In my view, the Crown’s concern about the statement not being recorded is overstated in the circumstances of this case. The substance of Mr. Poyser’s statement to his lawyer was clear – that he knew the perpetrators of the shooting to carry guns in the past. This directly contradicted his equally clear trial evidence that, having known the Shaw brothers for years, he had never seen them with firearms. This is not an issue of nuance. And as noted, Mr. Poyser was available for cross-examination….

[132]….Mr. Poyser’s presence as a witness at trial subject to cross-examination was a sufficient procedural guarantee of reliability in the circumstances to permit the jury to rationally assess factors relevant to his credibility and reliability, including perception, memory, narration, and sincerity. I conclude that threshold reliability was met to permit the jury to use the statement for the truth of its contents (subject, of course, to the jury’s assessment of its ultimate reliability).

[134] It is well-established that, where necessary in order to ensure a fair trial, a court may relax the rules of evidence in favour of admitting defence-led evidence. In the context of defence-led evidence, while a showing of some reliability must be satisfied, the strict standard applied to evidence led by the Crown to incriminate an accused does not apply: Finta, at pp. 854-55; R. v. G.F. (1999), 132 C.C.C. (3d) 14 (Ont. C.A.), at p. 32; Williams, at p. 378; Pan, at paras. 54-70; Jama, at para. 155.

[136] The error of not permitting Mr. Poyser’s statement to his lawyer that he knew the perpetrators to carry guns in the past to be used for the truth of its contents would not, standing alone, have warranted a new trial. This is particularly so given that the statement was before the jury for its inconsistency with his trial evidence. However, I find that, with the first two errors I have identified, the cumulative effect was to render the trial unfair….

(4) Conclusion on cumulative impact of these errors

[137] I am of the view that cumulatively, the three errors I have identified denied the appellants a fair trial. The Crown’s case was far from overwhelming. It depended on the jury accepting the credibility of Mr. Poyser’s evidence. There were serious challenges to his credibility. The Crown asked the jury to accept Mr. Poyser’s evidence based on a limited body of corroborating evidence. There were significant gaps in the evidence. This court cannot have any confidence that the verdicts would have been the same absent the errors identified.

D. THE VERDICT AGAINST MR. ALI-NUR IS UNREASONABLE

[140] As I will explain, there are significant frailties in Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog and the identification procedure employed by the police. In my view Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog, standing alone, would unquestionably be an insufficient basis for a properly instructed jury, acting judicially, to reasonably find beyond a reasonable doubt that Mr. Ali-Nur was Cron Dog and was guilty of murder.

(a) Law in relation to unreasonable verdict

[144] A jury’s verdict is entitled to deference. However, s. 686(1)(a)(i) of the Criminal Code requires an appellate court to review the trial record to determine whether a conviction “is unreasonable or cannot be supported by the evidence.” Review of verdicts for reasonableness recognizes that, even where a trial is errorfree and there is some evidence against an accused, appellate intervention is sometimes necessary to avoid an injustice: R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 180-81; 183-86; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 38-42; R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.), at paras. 97-98; R. v. Phillips, 2016 ONCA 651, 364 C.C.C. (3d) 220, at para. 51.

[146] One aspect of the assessment of a verdict’s reasonableness by an appellate court is considering the trial record “through the lens of judicial experience”, alive to features of a case that may give experienced jurists cause for concern: Biniaris, at paras. 40-41….

[147] I would add that the issue in relation to the reliability of the subscriber information for the 226 phone is also an issue of reliability, not credibility, of evidence. Thus, both Mr. Poyser’s evidence identifying Mr. Ali-Nur as Cron Dog and the value of the 226 phone subscriber information as evidence of identification of Mr. Ali-Nur as Cron Dog raise issues about the nature and quality – the reliability – of the identification evidence, rather than the credibility. These are the types of issues an appellate court is well-placed to review when assessing the reasonableness of a verdict.

(b) Circumstances of Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog

[148] Mr. Poyser’s evidence identifying Mr. Ali-Nur as Cron Dog bears many of the hallmarks of unreliable stranger identification evidence, including his consumption of drugs and alcohol leading to significant impairment, at times bearing on his opportunity to observe; his inability to provide a description of Cron Dog with any level of detail; improper and leading police identification procedures involving showing a single photo of Mr. Ali-Nur in circumstances that suggested the photo was of Cron Dog; the absence of a photo line-up at any time; and an in-dock identification. These frailties are evident from a chronological review of the circumstances of the identification.

[149]….Mr. Poyser’s evidence was that he was at Scarlettwood with Cron Dog for between 30 minutes and one hour before he followed the pick-up truck to Shendale….

….Mr. Poyser testified that he drank “most of” the bottle of vodka he had brought with him by the time he left Scarlettwood. Cron Dog had some of the vodka, but “not as much” as Mr. Poyser. Mr. Poyser was inconsistent about when he had started drinking the bottle of vodka. At one point, he said he had not consumed alcohol before arriving at Scarlettwood….

….. Crown counsel then asked Mr. Poyser who the second man with Mr. Poyser was and whether he spent any time with the second man that day. Mr. Poyser said he did not know him and did not know if he had spent time with him, because he was halfway through the bottle of vodka by that point. Mr. Poyser also testified that at some point at Scarlettwood, he was already drunk.

[151] Mr. Poyser continued consuming alcohol and also consumed drugs through the evening.

[152] Mr. Poyser testified that, when he arrived at Shendale after following Cron Dog there (i.e., within a bit longer than 50 minutes of meeting Cron Dog), he “was drunk”. He agreed in cross-examination that because of his level of intoxication, he could not say how long the drive from Scarlettwood to Shendale took. He also testified to speaking to one of the Shaw twins upon his arrival at Shendale, but because of his level of intoxication, he was unable to say which of the twins he spoke to.

[153] They were smoking marijuana when they got to Shendale. At some point, Mr. Poyser left Shendale to go to the LCBO to get more alcohol. He testified that he could not drive because he “was already drunk”, so Shakiyl Shaw drove and there was a woman with them. In cross-examination he adopted his statement to police that at the time they went out to the LCBO he “was stumbling”. They bought a larger bottle of alcohol. Mr. Poyser was not sure what kind of alcohol, but it was 40 percent (alcohol). They returned to Shendale, but then left to buy more marijuana (again with Shakiyl and the woman). They returned again to Shendale and continued to drink alcohol and smoke marijuana….

….They returned to Shendale, “took the Molly” (MDMA) and continued to drink. Mr. Poyser was unable to provide time estimates for events during the time he was at Shendale because he was “just really drunk and really high”….

[154] Mr. Poyser testified that he wears glasses and has since seventh grade. His glasses are for distance. He requires them to drive. He agreed in crossexamination that, if he is not wearing them, the details of things even a couple of metres away become blurry. He agreed that, if it is dark or he is in a dimly lit room and not wearing his glasses, it is more difficult for him to see details. Mr. Poyser initially said in cross-examination that he had his glasses with him on October 15- 16, 2016, but that he was “taking them on and off”. However, he agreed, when shown the videos of him at Scarlettwood and Pizza Pizza, that he was not wearing glasses. He further agreed that he could not recall putting on his glasses at Shendale.

[156] I turn now to the circumstances of Mr. Poyser’s first identification of Mr. AliNur as Cron Dog, in his police interview on December 29, 2016. The interview was videotaped and portions of it were exhibited at trial.

[157] The only description of Cron Dog that Mr. Poyser was able to provide to police in the interview prior to the problematic identification procedure, which I describe below, was that he was “a Somali male”.

[158] The portion of the video with the identification procedure shows the following. After being shown a single photo of Shakiyl Shaw and identifying him, the officers turn to the subject of Cron Dog. Officer Worden says to Mr. Poyser and Officer Shankaran, “We don’t know Cron Dog’s name, right?” Officer Worden then turns to Mr. Poyser and says, “You’d recognize Cron Dog if you saw – a picture of him?” Mr. Poyser responds, “Yeah.” Officer Worden then says to Mr. Poyser, “I don’t know if you’re going to recognize this photo or not, but if you do, just tell me.” He then shows Mr. Poyser a single photo (a photo of Mr. Ali-Nur, exhibit 64(b), which was a youth booking photo). Mr. Poyser replies, “Yeah, that’s Cron Dog.”

[159] I pause to note that although the police chose to show Mr. Poyser a single photo of Mr. Ali-Nur, in the interview video, shortly prior to the single-photo identification procedure, Officer Shankaran states that envelopes, which at the time were being held by Officer Worden, contained photo line-ups “for each person”. All counsel agreed at the appeal hearing that the officers had a photo lineup in relation to Mr. Ali-Nur in one of the envelopes that can be seen on the table and being handled by the officers during the interview. The trial evidence provides no explanation as to why the officers did not follow well-established procedure and use the photo line-up.

[161] The identification during the trial did nothing to improve the reliability of Mr. Poyser’s identification evidence. Not only was there an in-dock identification, but it was preceded by Crown counsel once again showing Mr. Poyser a single photo of Mr. Ali-Nur…

[162] At no point, either during the investigation or during the trial, was Mr. Poyser shown a photo line-up.

(c) The verdict against Mr. Ali-Nur is unreasonable

(i) The unreliable identification evidence of Mr. Poyser

[168] I conclude that Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog is irremediably tainted and bears many of the hallmarks of unreliable identification evidence which have led to wrongful convictions. While it is true that Mr. Poyser had a longer opportunity to observe Cron Dog than a fleeting glance, the evidence shows strong concerns about his ability to observe. He requires glasses for distance beyond a couple of metres. He agreed that if he is not wearing his glasses, it impacts is ability to see detail – it becomes blurry. A reasonable assessment of the evidence is that Mr. Poyser was not wearing his glasses that afternoon and evening. The objective record of the videos from Scarlettwood and the Pizza Pizza scene show him not to be wearing his glasses. I pause to underline that the start of the time at Scarlettwood is the only time that Mr. Poyser was not significantly impaired, and he is not wearing his glasses there.

[169] Mr. Poyser testified that, without his glasses, it is hard for him to see details. He said that it is more difficult for him to see details without his glasses if he is in a dimly lit room. The evidence at trial showed the basement at Shendale to be dimly lit.

[170] Mr. Poyser was significantly impaired for the majority of the time he spent with Cron Dog. He agreed that his impairment affected his vision and his ability to perceive things around him.

[172] The problems with Mr. Poyser’s ability to perceive events around him are clear from his inability to give a description with any detail to the police in his December 29, 2016 interview – he was only able to say that Cron Dog was Somali.

[173] Stranger identification evidence carries with it well-known risks in terms of reliability and danger of wrongful convictions: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 184-86; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 51; R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 31; R. v. M.B., 2017 ONCA 653, at paras. 29-31; R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.), at pp. 421-22; Tat, at paras. 99-100; The Hon. Peter de C. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) (the “Sophonow Inquiry”), at pp. 31-34.

[174] Particular dangers that may cause concern for reliability of identification evidence include: inability of the witness to provide a description of the person; lack of distinctive features of the person; the conditions under which the observations are made, such as lighting, distance; factors affecting the ability of the witness to perceive, such as a need for glasses, intoxication; and, a short time to observe: Miaponoose, at p. 424. In addition, identification procedures employed by police can impact the reliability of identification evidence, which I discuss further below.

[175] While not all of the risks of reliability discussed in the case law are present in this case (indeed, it is rare that all of the risks are present in a particular case), many are – inability to provide a description with any level of detail, intoxication at the time of observation, not wearing glasses. I acknowledge that concerns about reliability of eyewitness identification evidence can usually be addressed by a strong caution to a jury. Reliability issues in relation to identification evidence will not always impact the reliability of a verdict. But in this case, they form the starting point from which improper identification procedures were employed that fundamentally undermined the reliability of Mr. Poyser’s evidence identifying Mr. Ali-Nur as Cron Dog.

[176] The initial frailties of Mr. Poyser’s evidence were significantly compounded by the suggestive identification procedures used by police and reinforced during Mr. Poyser’s guilty plea and during the trial. Mr. Poyser had not previously met Cron Dog before the afternoon/evening of the murder. How the identification procedures were conducted mattered. But rather that conduct a photo line-up, the police chose to show Mr. Poyser a single photo of Mr. Ali-Nur in circumstances which clearly suggested to Mr. Poyser that it would be a photo of Cron Dog.

[177] As the dangers of this type of suggestive identification procedures are wellknown, and have been for many years, I will not belabour them. Two brief quotations from decisions of this court make the point:

If a witness has no previous knowledge of the accused person , so as to make him familiar with that person ’s appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [R. v. Smierc iak (1946), 87 C.C.C. 175 (On t. C.A.), at p. 177]

Later in the reasons for decision, the Court reiterates the need for constant watchfulness on the part of judges and Crown counsel to see that nothing unfair to an accused person is done or put in evidence in connection with identification procedure. I would add that it is clear that the police also have a duty to ensure the integrity of the identification process. Their role indeed may be most important of all since they are usually in control of the methods chosen to recall or refresh the memory of eye witnesses. While it may not be possible to improve upon the reliability of a witness’s original perception of a person, it is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case. Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of the judicial process, may result in a serious miscarriage of justice. [ Miaponoose, at pp. 424 -25 ]

See also Biddle, at paras. 32, 39-44; Phillips, at paras. 20, 23, 28 and 33; Sophonow Inquiry, at p. 32; R. v. Bao, 2019 ONCA 458, 377 C.C.C. (3d) 218, at para. 27.

[179] Further, in this case, the initial suggestive identification process with a single photo was reinforced at Mr. Poyser’s guilty plea when Crown counsel again showed him a single photo of Mr. Ali-Nur, and yet again at trial, prior to the in-dock identification. By this point, there was a real danger that Mr. Poyser was simply recalling the earlier times he had been shown Mr. Ali-Nur’s photo. Mr. Poyser’s identification of Mr. Ali-Nur as Cron Dog was never subjected to the test of a photo line-up. Rather, it was initially made in the suggestive, single-photo circumstances of the December 29, 2016 police interview, and then repeatedly reinforced to confirm the Crown theory of identification. Mr. Poyser was only ever shown one option – a photo of Mr. Ali-Nur.

(ii) The 226 phone subscriber information

[181] The trial judge admitted into evidence a business record from Freedom Mobile for a phone with a number beginning with 226. The 226 number made three calls to Mr. Poyser’s phone the night of the shooting. There was a missed call at 9:42 p.m. on the night of October 15 and two incoming calls at 12:38 and 12:50 a.m. on October 16. The two incoming calls were 13 seconds and 27 seconds long, respectively. Officer Flores, who performed the data extraction of Mr. Poyser’s phone, was unable to say if the second and third calls were answered or went to voicemail. The Crown argues that, taking the subscriber information for the 226 phone together with the calls from the 226 phone to Mr. Poyser shortly before the murder, is corroborative of a link between Mr. Ali-Nur and Mr. Poyser the night of the murder.

[183] The subscriber information from Wind Mobile (subsequently acquired by Freedom Mobile) showed that, at the time of the offence, the 226 phone was a pre-paid phone registered under the name “MOHAMED ALINUR” with a date of birth of “19/05/1998”, and an address on Richview Road in Etobicoke (with no unit number). There was a secondary phone number listed with the subscriber information as a contact. The secondary number could not be linked to Mr. Ali-Nur or to any other person….

[184] Although, on its face, the subscriber information for the 226 phone connected Mr. Ali-Nur to that phone (which in turn was connected to Mr. Poyser by the phone calls from the 226 phone on the night of the murder), there were significant frailties with the subscriber information for the 226 phone. The evidence from telecommunication company witnesses who testified at trial was that a person opening a pre-paid phone account may not be required to provide identification when the account is created, and that after an account is created, there is no way to verify the accuracy of the information that was given when the account was created. Service providers do not do credit checks or verify a subscriber’s identity when selling pre-paid phones because they take on no financial risk. One of the phone service provider witnesses testified that many fictitious names and numbers are associated with pre-paid phone accounts and agreed that fictitious names and numbers are “probably more the norm than the exception.” Further, Mr. Poyser gave evidence which showed that subscriber information for pre-paid phones was unreliable. He testified that he and others purchased pre-paid phones at various locations using fake information, and that phones were regularly passed around between individuals.

[185] I acknowledge that some evidentiary weight could be given to the nature of the subscriber information for the 226 phone in that it not only included the name “Mohamad Alinur”, but also a date of birth and street address corresponding to Mr. Ali-Nur (without the unit number). However, although there is a level of specificity to that information, it is not so personal that it would be unavailable to others besides Mr. Ali-Nur….

[186] In sum, while the 226 subscriber information had some evidentiary value, there were serious frailties with the inferences that could be drawn from it.

(iii) The scene videos and comparison of clothing worn by Mr. Ali-Nur in youth booking photo

[187] I turn now to the two other bodies of evidence relied on by the Crown as evidence that Mr. Ali-Nur is Cron Dog – comparison of the videos of Cron Dog from the Scarlettwood and Pizza Pizza scenes with Mr. Ali-Nur’s appearance in court, and comparison of the clothing in a youth court booking photo of Mr. Ali-Nur (exhibit 64(b)) and a still photo of Cron Dog extracted from the Scarlettwood video (exhibit 44).

[188] The primary problem with the Crown’s argument that the jury could have compared the appearance of Cron Dog in the Scarlettwood and Pizza Pizza scene videos to Mr. Ali-Nur’s appearance in court is that Cron Dog’s face is not visible in any of the videos. Cron Dog’s face is obscured by the hoodie of his sweatshirt and darkness on the Pizza Pizza scene videos. His face is also not visible in the Scarlettwood scene videos. Most of the time, this is because it is obscured by the hood of the sweatshirt he is wearing. Three or four times on the Scarlettwood video, Cron Dog’s face is turned towards a camera for one or two seconds; however, because of the distorted quality of the video, it is not possible to discern his features other than that he is Black….

[189] Further, the videos were not capable of supporting anything but the most generic comparison to Mr. Ali-Nur’s body type or build….

(iv) Conclusion on unreasonable verdict in relation to Mr. Ali-Nur

[196] I return to whether the verdict against Mr. Ali-Nur is unreasonable. The only identification evidence of Mr. Ali-Nur as Cron Dog was Mr. Poyser’s identification evidence and the 226 phone subscriber information. As I have explained, both of these bodies of evidence are extremely flawed.

[201] As I would find that the verdict in relation to Mr. Ali-Nur is unreasonable and would enter an acquittal, it is not necessary to address Mr. Ali-Nur’s arguments that the trial judge erred in admitting Mr. Poyser’s evidence identifying him as Cron Dog and that the jury instructions in relation to Mr. Poyser’s identification evidence were insufficient.

R v Pelletier, 2024 SKCA 12

[February 12, 2024] Spontaneous Utterance or Res Gestae [Reasons by Barringon-Foote J.A. with Richards C.J.S. and Schwann J.A. concurring]

AUTHOR’S NOTE: This case provides a good overview of the law of res gestae hearsay admissibility with a particular factual focus the requirement that the emotional intensity of the event must be with the declarant for the statement to be admissible. Here, the evidence of a continuing state of panic from the incident was lacking. 

I. INTRODUCTION

[1] The appellant, Nicholas Pelletier, was tried by a judge of the Provincial Court on an aggravated assault charge and several firearms charges. The alleged victim of the assault, Kyle Sparvier, did not testify and, as a result, the key to the Crown’s case was two out-of-court statements made by Mr. Sparvier. One was made to a civilian bystander wherein Mr. Sparvier had asked the bystander to call the police for assistance. The other was made to a police officer. In it, Mr. Sparvier identified Mr. Pelletier as the perpetrator of the assault. The trial judge admitted both statements under the spontaneous utterances exception to the hearsay rule. Mr. Pelletier was convicted of aggravated assault. He was also convicted of two firearms offences.

[2] Mr. Pelletier appeals and argues that the conviction for aggravated assault should be set aside because the out-of-court statements were not properly admitted into evidence. He also submits that the weapons convictions should be overturned because the trial judge mishandled the assessment of the relevant circumstantial evidence.

[3] I am persuaded that the trial judge erred by admitting the statements and that, absent those statements, there is insufficient evidence to support a conviction. As a result, Mr. Pelletier’s appeal must be allowed, his convictions quashed and acquittals entered in relation to the charges of which he was convicted. My reasons for these conclusions follow.

IV. ANALYSIS

A. The law: spontaneous utterances

[21] While out-of-court statements are presumptively inadmissible for the truth of their contents, the law continues to recognize an exception to this rule for what have come to be called spontaneous or excited utterances. The Honourable S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence , loose-leaf (Rel 4, October 2023) 5th ed (Toronto: Thomson Reuters, 2023) (WL) at §7:59 [ McWilliams ], suggests that “now … the test can be stated rather simply – a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded”. They describe two key criteria that must be met; that is, “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time of the declaration) under pressure or emotional intensity which would give the guarantee of reliability”. The reason that these conditions are believed to guarantee reliability was more fully explained by Thorburn J.A. in R v MacKinnon , 2022 ONCA 811, 164 OR (3d) 535 [ MacKinnon], as follows:

[40] One of the traditional exceptions to the general rule that hearsay evidence is inadmissible is the exception for spontaneous declarations. The requirement that the statement be made spontaneously under the pressure of a dramatic event is specifically geared to minimize the danger of fabrication or distortion because the declarant’s faculty is so overcome by the harrowing event that there is no opportunity for reflection, speculation or concoction. “Statements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”: R. v. Nguyen, 2015 ONCA 278, at para. 145, leave to appeal refused, [2015] S.C.C.A. No. 365; R. v. Khan, [1990] 2 S.C.R. 521, at p. 540; and S. Casey Hill, David M. Tanovich and Louis P. Strezos, 5th ed., McWilliams’ Canadian Criminal Evidence (Aurora: Canada Law Book, 2022), at § 7:59.

[41] Spontaneity and contemporaneity of the utterance are the guarantors of reliability: R. v. Andrews, [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.), at pp. 300- 1; R. v. Alexander, 2012 ONSC 5873, at paras. 26-27; R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at paras. 78, 83-85; and David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed., (Toronto: Irwin Law Inc., 2020), at p. 231.

[22] In this case, the central issue relates to the requirement for contemporaneity. There was a time when this aspect of what was once called the res gestae exception to the hearsay rule required that a statement had to be effectively part of an unusual, dramatic or overwhelming event to be admissible. In this regard, David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020) at 229, refers by way of illustration to the case of R v Bedingfield (1879), 14 Cox CC 341. The accused, known as “Harry”, went into a house. Very shortly thereafter, the deceased ran out of the house with her throat slashed and said, “See what Harry has done!” The statement was not admitted because it had not been made until after the attack was over.

[23] This requirement for strict contemporaneity has been long abandoned. However, as I have explained, the requirement for contemporaneity remains. The fact that there has been an unusual, dramatic or traumatic event that emotionally overpowered the declarant is not enough. The declarant must, at the time of the declaration, continue to be under the pressure or emotional intensity that obviates the risk of concoction or distortion; it is this that provides the guarantee of reliability which underpins the exception. For this reason, contemporaneity remains an essential aspect of the functional analysis that must be undertaken by a trial judge. As the Court of Appeal for Ontario explained in R v Hartling, 2020 ONCA 243 at para 59, 388 CCC (3d) 305, “since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made”.

[24] This analytical framework was explained with admirable clarity by the House of Lords in R v Andrews, [1987] AC 281 at 300–301 (which is reproduced in both McWilliams at §7:59 and The Law of Evidence at 230), as follows:

1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. …

[25] The following statement by Watt J.A. in R v Camara, 2021 ONCA 79, 400 CCC (3d) 490, is also instructive, emphasizing as it does that the declarant cannot have time for reasoned reflection:

[85] The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability: R. v. Andrews, [1987] A.C. 281 (H.L.), at pp. 300-1.

[26] Because reliability is guaranteed by the related factors of contemporaneity to a dramatic event and spontaneity, there is – except in what have been described as “rare cases” – no separate or free-standing analysis of reliability when considering whether to admit a declaration under this traditional exception to the hearsay rule. Evidence that meets the test for spontaneous utterances is presumptively admissible. In MacKinnon, Thorburn J.A. explained the “rare case” exception as follows:

[44] In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: [R v Badger, 2021 SKCA 118, 406 CCC (3d) 459] at para. 31; see also, [R v Andrews, [1987] AC 1 281 (HL)], at p. 301; R. v. Hall, 2018 MBCA 122, at paras. 41, 53-55. Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking: [R v Starr, 2000 SCC 40, [2000] 2 SCR 144], at para. 214; [R v Mapara, 2005 SCC 23, [2005] 1 SCR 358], at para. 15; and [R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787], at para. 42; see also, [R v Nurse, 2019 ONCA 260, 145 OR (3d) 241], at para. 92. Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies. Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible.

[45] Such cases are expected to be few and far between, as evidence that satisfies the requirements of a traditional exception is presumptively admissible precisely because these exceptions “traditionally incorporate an inherent reliability component”: Starr, at para. 212; Nurse, at paras. 63, 89.

[47] In the context of the spontaneous utterance exception, “rare cases” may include circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions. When there is evidence strongly pointing to the presence of such circumstances, trial judges cannot exclude the real possibility of error and inaccuracy, and the hearsay statement will not meet the threshold reliability requirement under the principled approach: see Andrews, at pp. 300-301; R. v. Hall, 2011 ONSC 5628, at paras. 29, 58-62; Badger, at paras. 34, 37 and 40-42; [R v Hall, 2018 MBCA 122, 368 CCC (3d) 520], at paras. 53-54, 96, 98 and 118-19; and McWilliams, at § 7:59.

[49] … The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara, at para. 36; Nurse, at para. 92.

[51] The onus is on the party wishing to invoke the “rare case” exception to demonstrate that there are special features in a given case such that the presumptively admissible hearsay evidence does not meet the principled requirements of necessity and reliability: Mapara, at paras. 15, 37; Nurse, at para. 91. There is a high threshold to be met by a party seeking to exclude evidence on this basis: see Starr, at paras. 212, 214; R. v. Kler, 2017 ONCA 64, 345 C.C.C (3d) 467, at para. 79; and Nurse, at para. 91.

(Emphasis added)

[27] R v Badger, 2021 SKCA 118, 406 CCC (3d) 459, affirmed 2022 SCC 20, 468 DLR (4th) 607 [Badger], which was cited by both parties, was one of those rare cases where it was appropriate to consider reliability. There, the admission of the utterance at issue was challenged on the basis that it lacked reliability because of the declarant’s intoxication. Here, there was some evidence of intoxication. However, Mr. Pelletier has not appealed on the ground that the trial judge erred in finding that evidence to be of no significance. The rare case exception is not engaged. It is, accordingly, not only unnecessary, but would be an error of law to separately assess threshold reliability.

B. The out-of-court statements and the aggravated assault charge

[28] Mr. Pelletier takes no issue with the trial judge’s statement of the law relating to spontaneous utterances. Rather, his principal argument is that the trial judge erred in the application of the relevant principles by focussing on the traumatic event – the assault – that he found to have dominated Mr. Sparvier’s mind and by overlooking the fact that the temporal connection between the assault and the statements at issue was a crucial part of the required analysis. He stresses that findings of contemporaneity must be rooted in the evidence and contends that the trial judge failed to engage with this issue and instead simply declared the bottom-line result.

[29] In my view, Mr. Pelletier is correct. Having completed a detailed recitation of the voir dire evidence which contained virtually no findings, the trial judge referred with approval to the summary of the governing legal principles relating to spontaneous utterances by Hinds P.C.J. in R v Badger, 2019 SKPC 43 [Badger PC]. He then explained his reasons for finding that both statements were admissible under that exception, as follows:

Turning to my brief analysis, given the timeframes and the – the locations involved, I find that what Mr. Sparvier said to Ms. Ates was contemporaneous to an unusual and overwhelming event, in which Mr. Sparvier was badly hurt with injuries to his head. The statement was so closely associated with the assault, which (INDISCERNIBLE) the statement, that the mind of Mr. Sparvier was still dominated by the assault. I also find that what Mr. Sparvier said to Ms. Ates was under pressure and emotional intensity, which provides the guarantee of reliability.

I further find that there was little evidence that Mr. Sparvier was so drunk or intoxicated, that he would make an error….

The statement was still so closely associated with the assault, which — which (INDISCERNIBLE) the statement, that the mind of Mr. Sparvier was still dominated by the assault. I also find that what Mr. Sparvier spontaneously and without time for concoction said to Constable Gruber, which was more detailed than his utterance to Ms. Ates, was still under pressure and emotional intensity, which provides the guarantee of reliability.

Further, I find that at that point, Mr. Sparvier was so angry, when he repeatedly named Mr. Pelletier as the person who was responsible for hurting him and how he did it, without any prompting from Constable Gruber, that he did not think about the consequences of doing so. Again, I see little evidence of drunkenness or intoxication on the part of Mr. Sparvier. The weight I will give this evidence will be determined at the trial.

[30] Clearly, this reasoning does not relate the particulars of the evidence before the trial judge to the issue of contemporaneity. It is made up of conclusory statements, cast in the language of the legal test for spontaneous utterances. With respect, although the trial judge correctly identified the analytical framework, he committed an error of law by failing to apply it to the evidence.

[31] Importantly, the trial judge did not find when the assault had occurred, despite that the timeline was at issue in this case. Indeed, his assessment of this key issue is brief and incomplete not only in this respect, but in general. He referred to Ms. Ates’s evidence that she first encountered Mr. Sparvier at 3:45 p.m., as well as to her evidence that her encounters with the two men “happened around 3:30 to 4 p.m.” Although he did find that this first encounter occurred at 3:45 p.m. – a finding of fact that must be accepted as it was not challenged by Mr. Pelletier – he did not reconcile this conclusion with Ms. Ates’s evidence that she saw the second man 30 minutes after she saw Mr. Sparvier, and that she subsequently saw Mr. Sparvier at a gas station a mere two blocks away some 30 minutes after that. Rather, having summarized the evidence and referred to an overview by Hinds P.C.J. in Badger PC of the law relating to spontaneous utterances, the trial judge simply found that the statement to Ms. Ates was contemporaneous, and that the statement to Cst. Gruber was “contextually contemporaneous”.

[33] It is also significant that there was no evidence that Mr. Sparvier was in a state of panic because he was being pursued and believed that he was in imminent danger. That is consistent with Ms. Ates’s testimony that she did not see the second person for about 30 minutes. Indeed, Ms. Ates did not describe Mr. Sparvier’s demeanour or state of mind at all. She was not asked to do so. She described only a polite request from Mr. Sparvier that she call the police and stated that he then “wandered off” toward her friends. More specifically, she recalled that he asked: “can you please call the cops, they just beat me up?”, and that she responded as follows:

… I told him I didn’t have my phone on me. And I’d noticed a couple of friends in the yard across the alley, so I looked at them to talk to them and the guy wandered off towards them and I continued down the alley with my dog.

[34] Having failed to deal with the evidence relating to the timeline and to determine when Mr. Sparvier was assaulted, the trial judge also failed to address the evidence as to whether he was emotionally overpowered when he spoke to Ms. Ates. Rather, having concluded that the traumatic event was contemporaneous with that encounter, he assumed that Mr. Sparvier’s mind had been dominated by that event and that what he had said was uttered under emotional intensity.

[35] In the result, I conclude that the trial judge, when considering the admission of Mr. Sparvier’s statement to Ms. Ates, failed to apply the legal test relating to the contemporaneity requirement. Indeed, as I have explained, he did not determine when the assault occurred. He also erred by failing to consider the evidence bearing on the question of whether Mr. Sparvier was emotionally overpowered.

[36] The fact that the trial judge erred in this way in relation to the statement to Ms. Ates also means that he erred in admitting the statement to Cst. Gruber for a hearsay purpose. That is so because the failure to determine a timeline was equally significant when assessing whether the second statement was contemporaneous and whether Mr. Sparvier was still emotionally overpowered when he made it….

[37]….The trial judge’s reasons on that point demonstrate that he equated the fact that Mr. Sparvier was angry because he had been beaten with being emotionally overborne within the meaning of the legal test. That, too, reflects an error of law.

[38]…That is what the trial judge found had occurred. I would accordingly allow Mr. Pelletier’s conviction appeal in relation to all of the offences.

D. Remedy

[46] I have concluded that the trial judge erred in admitting the statements made by Mr. Sparvier to Ms. Ates and Cst. Gruber as spontaneous utterances. Further, it is my opinion that if the trial judge had applied the law, he could not have found that they were admissible on that basis. Ms. Ates’s evidence as to Mr. Sparvier’s demeanour did not support a finding that he was under pressure or emotional intensity so as to provide a guarantee of reliability. To the contrary, she reported a polite request for assistance. The fact that Ms. Ates said that Mr. Sparvier was covered in blood did not demonstrate that he had been very recently injured, particularly given that he was still bleeding from several cuts more than 30 minutes later. There was nothing in his demeanour to suggest he had just fled and was being actively pursued. The evidence of this interaction was sufficient to enable a finder of fact to infer that the incident occurred relatively recently, but nothing more.

[48] Without those statements, this case turned entirely on circumstantial evidence….

[50] Accordingly, the question in this case is whether the trial judge could reasonably have been satisfied that the only reasonable inference that could have been drawn based on the evidence and the absence of evidence is that Mr. Pelletier was guilty of aggravated assault or of the weapons offences….

[57] Based on this evidence, and the absence of evidence, it is plausible that Mr. Pelletier could have been a bystander who observed a fight involving Mr. Sparvier and that he was splattered with blood, or that he could have intervened to help Mr. Sparvier or another participant. While I recognize that “it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation” (Villaroman at para 71), these are plausible theories or possibilities that are inconsistent with guilt that could not be reasonably excluded by a trier of fact, acting judicially.

[58] The same is true in relation to the firearms offences. Absent the direct evidence from Mr. Sparvier that he was assaulted by Mr. Pelletier, a reasonable explanation exists other than that Mr. Pelletier was in possession of the handgun and ammunition and could not be reasonably excluded by a trier of fact. Another person may have used the gun to assault Mr. Sparvier. That person or a third person may have hidden it in the walkway.

V. CONCLUSION

[60] In the result, I find that Mr. Pelletier’s conviction appeals must be allowed and that acquittals be entered in relation to all of the offences of which he was convicted.

R v Clyde, 2024 ONCA 113

[February 13, 2024] Crown Closing in a Sexual Assault Case: Asking Why would the Complainant Allege the Crime [Paul Rouleau, C.W. Hourigan, P.J. Monahan JJ.A.]

AUTHOR’S NOTE: Why would the complainant make up this allegation against someone close to her? This is a question the prosecution should almost never ask in closing submissions. The Crown cannot invite the jury to convict someone on the basis that there was no evidence of a motive to fabricate. They cannot ask the jury to enhance the credibility of the complainant because no evidence of a motive to fabricate was led at trial. A judge must correct such a closing if the case has any hope of being saved from a mistrial. 

A. INTRODUCTION

[1] The appellant was convicted of one count of sexual assault and one count of sexual interference. The background to the convictions may be summarized as follows.

[2] The appellant was in a long-term relationship with the complainant’s mother between 2007 and 2014. The complainant suffered from rashes starting when she was between three to five years old and ending when she was eight or nine. The complainant testified that the rashes were on her buttocks and thighs, but not on her vagina.

[3] The appellant and the complainant’s mother both applied Penaten cream to the rashes, usually in the complainant’s bedroom before bedtime. Since the appellant was frequently with the children at night, he was often responsible for this task. According to the complainant, the cream was not applied to her vagina. However, both the appellant and the complainant’s mother testified that they applied cream to the complainant’s vagina.

[4] The complainant testified about two incidents that form the basis of the charges. In the first, she alleged that the appellant came into her room, took off her pants, massaged her breasts, and massaged her vagina for three to five minutes. In the second incident, she says that he came into her bedroom and began massaging her vagina. The complainant’s testimony was that the incidents of sexual touching were distinct from the cream applications. The incidents of the alleged touching occurred when the complainant was between seven to nine years old; at the time of trial, she was 17 years old.

[5] The appellant testified that he never touched the complainant for a sexual purpose. At trial, the defence did not attack the complainant’s credibility. Instead, the focus was on the reliability of her evidence. The position of the defence was that the complainant was misremembering the appellant’s involvement in her hygiene care.

[6] The appellant asserts three grounds of appeal, all related to the jury charge: (i) the trial judge failed to provide a corrective instruction after the Crown’s closing invited the jury to engage in several paths of impermissible reasoning; (ii) the trial judge misdirected the jury by confining their consideration of the first and second branches of R. v. W.(D.), [1991] 1 S.C.R. 742 to only the appellant’s evidence; and, (iii) the trial judge erred in instructing the jury that they could consider each witness’ interest in the outcome of the case – without regard to the danger this poses when the accused testifies.

[7] At the conclusion of oral argument, we granted the appeal for reasons to follow, set aside the convictions and ordered a new trial. These are our reasons.

[8] In summary, we grant the appeal based on the first ground of appeal. In the circumstances of this case, the trial judge had an obligation to provide a corrective instruction regarding the Crown’s closing, and the failure to provide that instruction necessitates the ordering of a new trial. Given this conclusion, we do not address the second and third grounds of appeal.

B. ANALYSIS

(1) The Crown Closing and Jury Charge

[9] It is undisputed that the complainant viewed the appellant as a father-figure, and that they had a good relationship….

….In his closing address, the trial Crown sought to rely on this close relationship in support of the Crown’s case. The pertinent portions of the closing are as follows:

….And I respectfully suggest that it’s not reasonable, not reasonably possible or possible at all that [K.] is mistaken or misremembers what had happened. Mr. Clyde, [K.] said, was a father figure to her. They were, Mr. Clyde said, “very close.” … It was his job to protect [K.]. Mr. Clyde agreed with me that she was, [K.] was “a very bright” girl. Why would she remember, misremember what happened in the first place and why would she remember what Mr. Clyde of all people did? The defence has not suggested, much less explained how or why [K.] could have misinterpreted the application of cream for therapeutic purpose with sexual offences.… Why would a very bright young woman impute sexual dimensions to innocent care afforded by a father figure that she was apparently fond of and had good reason to be fond of?

And in closing, the main reason you should believe her entirely and reject what Mr. Clyde had to say is this, if she had the slightest doubt she was misremembering or had misperceived what had happened, if her protector or father figure could possibly be innocent, do you think she would have spoken to the police and then come to court to give evidence against the man who had been so kind and decent to her even after the breakup? Unless she was as certain as she said she was, why would she cling to a possibly false memory that could harm and harm terribly her father figure and protector? The only logical conclusion is that she could not possibly have misremembered or misperceived what had happened as my friend has suggested….

[10] In the absence of the jury, the trial judge raised concerns with this part of the Crown closing, asking whether the Crown invited the jury “several times” to look for an answer from the appellant for why the complainant accused him. The court then took a brief recess to consider this issue. When the trial judge returned, she stated that she would not provide a corrective instruction….

[11] The trial judge provided counsel with the afternoon to further consider the issue and invited them to make further submissions if they wished to do so. Ultimately, the defence did not request a specific instruction on this issue.

[12] In the jury charge, the trial judge summarized the positions of the parties. In the section regarding the Crown’s position, she stated, in part, as follows:

Moreover, all the evidence suggests that she had a very good relationship with Mr. Clyde that continued long after his breakup from her mother and that he was very kind to her while they were living together and after the breakup. If she had the slightest doubt in the reliability of her memories, she would not have come forward to incriminate her “protector”.

(2) Motive, Reliability, and Credibility

[13] The appellant submits that the Crown’s closing was problematic in several respects as it invited the jury to engage in impermissible lines of reasoning. His primary complaints are: (i) the Crown relied on the appellant’s good relationship with the complainant and the absence of evidence regarding the complainant’s motive to fabricate to bolster the reliability of her testimony….

…. While we have concerns about the Crown’s closing regarding the latter point, we restrict our analysis to the former point.

[14] As the Crown fairly conceded in its factum, “there is no logical connection to be made between the absence of evidence of a motive for a witness to fabricate and the reliability of that witness.” Despite this concession, the Crown’s position is that any concerns about the submission regarding reliability would have been adequately addressed by the trial judge’s instruction that a credible witness is not necessarily a reliable witness….

[15] We are not persuaded by this submission. The Crown’s closing invited the jury to link an absence of motive with reliability. In fact, the Crown went so far as to tell the jury that “the only logical conclusion” that could be drawn from the appellant’s good relationship with the complainant was that “she could not possibly have misremembered or misperceived what had happened”. A corrective instruction was required to explain to the jury that this line of reasoning was impermissible. The general instruction relied on, which did not highlight the problem with the Crown’s closing, would not have sufficiently brought home to the jury that they could not equate an absence of motive with enhanced reliability. This is especially the case given that, as noted above, later in her charge, the trial judge repeated the Crown submission that if the complainant had “the slightest doubt in the reliability of her memories, she would not have come forward to incriminate her ‘protector’.”

[16] As this court stated in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184, an appellate court must look at whether, “considered in the context of the trial as a whole, including evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial.” In this case, we are satisfied that the appellant’s right to a fair trial was compromised.

C. DISPOSITION

[17] The appeal is allowed. The convictions are set aside, and a new trial is ordered.

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