R. v. Blackman, 2006 CanLII 42356 (ON CA)

Her Majesty the Queen v. Blackman [Indexed as: R. v. Blackman]

84 O.R. (3d) 292

Court of Appeal for Ontario,

MacPherson, Simmons and Cronk JJ.A.

December 20, 2006

Criminal law -- Evidence -- Hearsay -- Principled exception -- Reliability -- Accused charged with first degree murder after fatal shooting -- Crown's theory being that accused shot deceased as revenge for previous incident when deceased stabbed him -- Trial judge not erring in admitting deceased's statement to his mother which support that theory -- Trial judge not erring in finding that statement met threshold reliability criterion -- Circumstantial evidence supporting inference that deceased had no motive to fabricate statements -- Other indicia of reliability of statements existing.

Criminal law -- Evidence -- Identification -- Eyewitness -- Charge to jury -- Eyewitness to fatal shooting stating repeatedly to police that he knew shooter personally and could identify him -- Witness providing detailed description of shooter, immediately picking accused's photograph from photo line-up, and identifying accused in court -- No material differences existing between witness' description of shooter and accused's physical appearance -- Trial judge not erring in failing to give Chartier instruction to jury --Chartier applying where is clear dissimilarity in witness' identification coupled with lack of supporting evidence.

The accused was convicted of first degree murder after a shooting at a nightclub. Almost immediately after the shooting, K, the operator of the nightclub, called 911 and repeatedly said that he knew the shooter and could identify him. He provided a general description of the shooter. Later that morning, K gave a videotaped statement to the police in which he provided a detailed description of the shooter. Several days later, K was shown a police photo line-up and immediately identified the accused's photograph as that of the shooter. K also provided an in-dock identification of the accused at trial. It was the Crown's theory that the accused killed the deceased in revenge for an incident at a sport's bar when the deceased stabbed the accused for refusing to pay a debt. According to the Crown, the accused made a previous, unsuccessful, attempt to avenge that stabbing by participating, with two other men, in an incident in which the deceased was shot and grazed by a bullet. Evidence was admitted at trial of statements allegedly made by the deceased to his mother, which the Crown argued established a motive for the revenge killing by implicating the deceased as the person stabbed by the accused and by implicating the accused as one of the three persons involved in the prior shooting incident. Those statements were admitted under the principled exception to the hearsay rule. The accused appealed his conviction, arguing that the trial judge erred in failing to give the jury a Chartier instruction on eyewitness identification evidence because there were dissimilar features between K's description of the shooter and the accused's appearance, and that the deceased's out-of- court statements should not have been admitted.

Held, the appeal should be dismissed.

Per Cronk J.A. (MacPherson J.A. concurring): The trial judge did not err by failing to provide the jury with a Chartier instruction on eyewitness identification [page293] evidence. The rule in Chartier applies to cases in which there is a clear dissimilarity in the witness' identification coupled with a lack of supporting evidence. This case involved evidence of a witness' direct recognition of the accused as the shooter, rather than evidence of mere resemblance between the shooter and the accused. From the outset of his dealings with the police, K repeatedly stated that he knew the shooter personally and that he could identify him. Moreover, the defence assertion that there were "material" dissimilarities between K's description of the shooter and the accused's physical appearance was not supported by the evidence. Finally, a Chartier instruction was not sought by defence counsel at trial. While not determinative, this told strongly against the submission that a Chartier instruction was required.

The trial judge did not err in admitting the deceased's out- of-court statements to his mother under the principled exception to the hearsay rule. The necessity criterion for admission under the principled exception was not in issue since the deceased was dead. The question was whether the statements had the requisite threshold reliability. The legal test for the assessment of threshold reliability places on onus on the party seeking the admission of a hearsay statement to show that the circumstances surrounding the making of the statement are sufficiently supportive of its reliability to permit its admission, despite the absence of an opportunity to cross- examine the declarant. Under this test, there is no evidential onus on the party resisting the admission of a hearsay statement to establish that the statement was made in unreliable circumstances. On consideration of the trial judge's ruling as a whole, however, it was clear that his reliability analysis was properly concerned with those circumstances that either supported or negated the truth and accuracy and, hence, the reliability of the statements. Although the trial judge used the wrong language to reference the correct legal principles, he ultimately applied the correct legal test to the facts of this case as he found them. Various factors may be considered in evaluating whether a hearsay statement by a deceased declarant was made in circumstances that substantially negate the possibility of inaccuracy or fabrication. These include the presence or absence of any motive by the declarant to lie, the relationship between the declarant and the narrator of the statement, the possibility that the declarant was mistaken, and the state of mind of the declarant at the time that the statement was made. As well, the contents of a declarant's statement may be used for some purposes in determining the admissibility of the statement. In addition, where reliability is said to be dependent on the inherent trustworthiness of the statement in issue, the trial judge must inquire into those factors tending to show whether the statement is true or not. However, where the reliability requirement is said to be met on the ground that the trier of fact has a sufficient basis on which to assess the statement's truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. That question is left to the ultimate trier of fact.

Evidence regarding motive to fabricate remains an important consideration in testing the truth and accuracy of a hearsay statement. However, a trial judge should not use the absence of evidence of fabrication to find that there was no evidence of a motive to fabricate. This was not a case where there was no evidence and no logical inference that the deceased had no motive to lie at the time he made the statements. To the contrary, there was circumstantial evidence that supported the inference that the deceased had no motive to fabricate the statements to this particular witness on this particular occasion. Upon evaluation of that evidence, the trial judge implicitly concluded that the possibility that the deceased had been untruthful was substantially negated by the circumstances surrounding the making of the statements. This was a proper consideration. [page294] Moreover, there were other indicia of the reliability of the statements. Finally, the trial judge did not err by overstating the probative value and underestimating the prejudicial effect of the statements, and his instructions to the jury on the assessment of the evidence of the statements were more than adequate.

Per Simmons J.A. (dissenting): The trial judge erred by founding his implicit conclusion that the deceased had no motive to fabricate on an absence of evidence of a motive to fabricate. Unlike proven absence of motive to fabricate, absence of evidence of motive to fabricate is a neutral factor in the threshold reliability analysis. Further, the trial judge erred in the significance he afforded to the statements being against the deceased's interest. He misstated the test for admission of a hearsay statement under the principled approach when he said"As to threshold reliability, the declarant's statement to his mother was not made under inherently unreliable circumstances", and his reasons did not demonstrate that he subsequently applied the proper test. The trial judge placed undue emphasis on the fact that the deceased's mother was available for cross-examination and on the inherent plausibility of the deceased telling more to his mother about the identity of the shooter than he told to the police as contributing in any way to the threshold reliability of the evidence of the statements.

APPEAL from a conviction entered by Campbell J. of the Superior Court of Justice, sitting with a jury, dated February 28, 2003, for first degree murder.

Cases referred to R. v. Humaid, 2006 12287 (ON CA), [2006] O.J. No. 1507, 210 O.A.C. 68, 208 C.C.C. (3d) 43, 37 C.R. (6th) 347 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 232]; R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Khelawon, [2006] S.C.J. No. 57, 2006 SCC 57, affg 2005 4775 (ON CA), [2005] O.J. No. 723, 195 O.A.C. 11, 194 C.C.C. (3d) 161 (C.A.); R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, consd Chartier v. Québec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, [1979] S.C.J. No. 56, 48 C.C.C. (2d) 34, 9 C.R. (3d) 97, 104 D.L.R. (3d) 321; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 502], distd Other cases referred to R. v. A. (S.) (1992), 1992 7517 (ON CA), 11 O.R. (3d) 16, [1992] O.J. No. 2160, 76 C.C.C. (3d) 522, 17 C.R. (4th) 233 (C.A.); R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244, 19 C.R. (6th) 109 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 534]; R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373, 146 C.C.C. (3d) 52 (C.A.); R. v. Demeter, 1977 25 (SCC), [1978] 1 S.C.R. 538, [1977] S.C.J. No. 60, 34 C.C.C. (2d) 137, 75 D.L.R. (3d) 251, affg (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, [1975] O.J. No. 2648, 25 C.C.C. (2d) 417 (C.A.); R. v. Dimitrov (2003), 2003 50104 (ON CA), 68 O.R. (3d) 641, [2003] O.J. No. 5243, 181 C.C.C. (3d) 554, 18 C.R. (6th) 36 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 59]; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Johnson, 2004 NSCA 91, [2004] N.S.J. No. 280, 188 C.C.C. (3d) 214 (C.A.); R. v. Kimberley (2001), 2001 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129, 45 C.R. (5th) 273 (C.A.); R. v. Merz, 161, 1999 1647 (ON CA), [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313, 127 O.A.C. 1 (C.A.); R. v. O'Brien, 1977 168 (SCC), [1978] 1 S.C.R. 591, [1977] S.C.J. No. 65, 35 C.C.C. (2d) 209, 76 D.L.R. (3d) 513; R. v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463, [1990] O.J. No. 2063, 41 O.A.C. 305, 60 C.C.C. (3d) 380, 1 C.R. (4th) 385 (C.A.); R. v. Savoury, 2005 25884 (ON CA), [2005] O.J. No. 3112, 200 C.C.C. (3d) 94, 31 C.R. (6th) 1 (C.A.) [page295] Authorities referred to Law Reform Commission of Canada, Report on Evidence (1975)

Jennifer Woollcombe, for respondent. Leslie Maunder and Mark Halfyard, for appellant.

1CRONK J.A. (MACPHERSON J.A. concurring): -- In the early morning hours of April 21, 2001, 18-year-old George Ellison was fatally shot at an after-hours nightclub on Dufferin Street in Toronto. In the confusion that followed, the shooter escaped. Approximately ten days later, the appellant Leucherin Blackman was arrested and charged with Ellison's murder.

2The only issue at trial was the identification of the shooter. On the Crown's theory, the appellant killed Ellison in revenge for an incident on July 21, 2000 at a sports bar when Ellison stabbed the appellant for refusing to pay a debt arising from a pool game. According to the Crown, the appellant sought to avenge this stabbing by participating, together with two other men, in an incident on February 16, 2001, when Ellison was shot and grazed in the head by a bullet fired outside the House of Lancaster, a strip club in Toronto. The Crown maintained that when Ellison survived this attack, the appellant retaliated for the stabbing by murdering Ellison at the nightclub two months later.

3In support of this theory, the Crown relied primarily on an eyewitness's identification of the appellant as the shooter at the nightclub. The Crown also led circumstantial evidence of motive. Following a pre-trial voir dire, evidence was admitted at trial of out-of-court statements allegedly made by Ellison to his mother, which the Crown argued established a motive for the revenge killing by both implicating Ellison as the person who stabbed the appellant and the appellant as one of three persons involved in Ellison's shooting outside the strip club.

4The appellant did not testify at trial. On February 28, 2003, following a 30-day trial before a judge and jury, he was convicted of first degree murder. He was sentenced to life imprisonment, without the possibility of parole for 25 years.

5The appellant appeals his conviction. He argues that the trial judge erred by failing to instruct the jury on eyewitness identification evidence in accordance with Chartier v. Québec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, [1979] S.C.J. No. 56, 48 C.C.C. (2d) 34. He also submits that the trial judge erred by [page296] admitting the evidence of Ellison's out-of- court statements and, having admitted this evidence, by then providing flawed instructions to the jury regarding its assessment of this evidence.

6For the reasons that follow, I consider that a "Chartier instruction" was not required in this case. I also conclude that the evidence of Ellison's out-of-court statements was admissible under the principled exception to the hearsay rule. Finally, I see no error in the trial judge's instructions to the jury concerning the assessment of this evidence. Accordingly, I would dismiss the appeal.

I. Additional Facts

(1) The identification of the shooter

7At the time of the shooting, the after-hours nightclub was crowded, exceeding its capacity by 30 or more people. The front door of the nightclub was locked. At about 3:40 a.m., four black males requested Peter Keene, the operator of the nightclub, to unlock the front door so that they could leave. When Keene went to do so, however, the men made no move to leave. Instead, they remained inside the front entrance of the nightclub with their backs to Keene, who was standing about three feet away from them. Other patrons were also nearby.

8Some time passed, during which Keene noticed Ellison standing near the four men, in front of a railing. Keene then saw one of the four men remove a gun from the waist of his pants. Keene recognized the man with the gun as someone he had seen in the nightclub and around the neighbourhood on previous occasions, although he did not know his name.

9The shooter fired several shots in rapid succession. Keene saw Ellison fall to the ground. When the shooting stopped, Keene opened the front door and stepped around it to stand outside the nightclub. From this vantage point, he continued to observe the shooter and his companions as they fled.

10Ellison was shot three times, once in the mouth and twice in the back. He died from his wounds before the police and an ambulance arrived. Keene called 911 almost immediately after the shooting. During this call, he repeatedly said that he knew the shooter and could identify him. He also said that the shooter was a black male, aged 20 to 25.

11At about 4:25 a.m., Keene met with Detective Zubek and told him that he could identify the shooter. Later that morning, Keene gave a videotaped statement to the police in which he provided a detailed description of Ellison's assailant. Among other matters, Keene said that the shooter had a "little bump" [page297] or a "little round thing" on the back of his head. When asked by the police interviewer whether this was a bone, Keene replied: "Yeah. Somethin' like that." At one point, in respect of the shooter's forehead, Keene said that the shooter had a "little sink cut" and that there was a "little part" where the shooter's head divided.

12On April 24, 2001, Keene again confirmed to the police that he could identify the shooter. He was then shown a police photo line-up and immediately identified the appellant's photograph as that of the shooter. In so doing, Keene stated that he had known the person he identified for a "couple years" and said"Well I see him all the time. I see him all about" and "I see him around very much you know." During the course of the trial, Keene also provided an in-dock identification of the appellant.

13Although various patrons were near the front entrance of the nightclub at the time of the shooting, only two provided descriptions of the shooter to the police. Neither of these descriptions was as detailed as that furnished by Keene.

(2) The trial

(i) The Crown's position

14It was the Crown's position at trial that the strength of the identification evidence alone justified a conviction. The Crown also sought, however, to lead evidence of motive and planning and deliberation.

15No direct evidence implicated Ellison in the stabbing incident. However, Ling Gao, the wife of the owner of the sports bar, testified that while she was working at the sports bar on July 21, 2000, she evicted a group of teenagers who were playing pool. One of the teenagers was called "George". After Ellison was killed, Ms. Gao recognized him from his photograph in a newspaper as one of the group that had been playing pool on July 21.

16The Crown also sought to rely on evidence of out-of- court statements allegedly made by Ellison to his mother, Gwendolyn Freckleton, regarding the July 2000 stabbing and the February 2001 shooting incidents. For the purpose of a pre- trial voir dire, a videotaped statement to the police provided by Ms. Freckleton on May 3, 2001 and her evidence on a voir dire at the appellant's preliminary inquiry were tendered by the Crown.

17According to Ms. Freckleton, she learned from a third party in the summer of 2000 that her son had been involved in a stabbing incident. When she confronted her son with this information, he essentially denied any involvement, claiming that it [page298] was a rumour and telling his mother to "cool it". Ms. Freckleton believed that her son was hiding the truth from her. Later, after he was shot at the House of Lancaster, Ellison told his mother that he had been shot by "a white guy and two brothers" who had guns and knives. Ellison allegedly said that his three assailants included two black brothers from Trinidad, one of whom he had stabbed the previous summer in connection with a dispute regarding a pool debt, and that the shooter was the brother of the stabbing victim (collectively, the "Statements").

18Ms. Freckleton also said that, at some point after the February 2001 shooting, the police came to her home and spoke privately with Ellison. After the police left, Ms. Freckleton advised her son to tell the police what he knew. Ellison, who did not disclose the identity of the person who shot him to the police, told his mother that he was not going to "inform on the guy" because, when Ellison stabbed him, the "guy" did not inform on Ellison. Ms. Freckleton said that the stabbing referenced by her son was the one at "Ms. Chink's bar".

19The Crown relied on Ms. Freckleton's testimony as evidence of motive that supported both the Crown's identification case and its theory that the murder was both planned and deliberate.

20The trial judge admitted the evidence of the Statements under the principled exception to the hearsay rule. He held that this evidence was necessary and that the Statements were not made under "inherently unreliable" circumstances. He concluded that although Ms. Freckleton's evidence presented "problems", it was not "so implausible or inherently unworthy of belief that it would produce unfair prejudice that would outweigh the probative value of her evidence".

21No forensic evidence linked the appellant to the crime scene. The evidence at trial, however, established that the gun used to kill Ellison was the same gun used in the House of Lancaster shooting two months earlier. The same gun, with a modified barrel, was employed in two other shooting incidents that occurred after the appellant's arrest in May 2001.

(ii) The defence position

22The appellant's defence at trial, through counsel, was to attack the reliability of Keene's identification evidence. In addition, with respect to the evidence of the Statements, the defence challenged both the reliability of Ellison as an informant and the reliability and accuracy of Ms. Freckleton's testimony.

23It was common ground that the appellant was stabbed in July 2000, and that Ellison was shot outside the House of [page299] Lancaster and never identified the perpetrators to the police. However, the defence maintained that the Crown had failed to prove a link between Ellison and the appellant in respect of either incident.

II. Issues

24There are three issues:

(1) Did the trial judge err by failing to provide the jury with a "Chartier instruction"?

(2) Did the trial judge err by admitting the evidence of the Statements?

(3) Did the trial judge err in his instructions to the jury concerning its assessment of the evidence of the Statements?

III. Analysis

(1) The failure to provide a "Chartier instruction"

25In Chartier, supra, the Supreme Court of Canada held that a witness's identification of a murder suspect was not established where there was evidence of one dissimilar feature between the witness's description of the killer and the appearance of the suspect. In these circumstances, the witness in question, at most, had merely noted a resemblance between the killer and the suspect.

26The appellant relies on Chartier to argue that, because Keene's description of the shooter was "materially" dissimilar to the appellant's appearance, the jury should have been instructed that Keene's testimony could be exculpatory evidence exonerating the appellant, not just inculpatory evidence of identification. I disagree, for several reasons.

27First, in my view, Chartier had no application in this case. Chartier did not involve jury instructions, nor was it a criminal case. Although the principles identified in Chartier have been applied in the criminal law domain, they are not engaged in all eye-witness identification cases. As observed by this court in R. v. Dimitrov (2003), 2003 50104 (ON CA), 68 O.R. (3d) 641, [2003] O.J. No. 5243, 181 C.C.C. (3d) 554, at para. 18, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 59: "The rule in Chartier applies to cases in which there is a clear dissimilarity in the witness's identification coupled with a lack of supporting evidence" (emphasis added). See also R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373, 146 C.C.C. (3d) 52 (C.A.), at para. 19; [page300] R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244 (C.A.), at para. 96, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 534.

28This case, unlike Chartier, involves evidence of a witness's direct recognition of the appellant as the shooter, rather than evidence of mere resemblance between the shooter and the appellant. From the outset of his dealings with the police, Keene repeatedly stated that he knew the shooter personally and that he could identify him. Although the record suggests that Keene had some obvious communication limitations as a witness, he never wavered in his assertion that he knew the appellant from before the night of the murder and that he recognized him as the shooter. In addition, Keene unhesitatingly identified the appellant in a police photo line- up. No challenge to the propriety or fairness of the line-up is made on this appeal. This evidence was available to the jury to enhance the reliability of Keene's identification of the appellant as the shooter: see R. v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463, [1990] O.J. No. 2063, 60 C.C.C. (3d) 380 (C.A.), at p. 469 O.R., p. 387 C.C.C.

29Moreover, to trigger a "Chartier instruction", a clear dissimilarity between the eyewitness's identification and the accused's appearance must exist, together with a lack of other evidential support for the identification evidence. In my opinion, neither of these prerequisites was satisfied in this case.

30Among the alleged "material" dissimilarities between Keene's description of the shooter and the appellant's physical appearance, two are especially significant:

(i) Keene told the police within hours of the shooting that the shooter had a "little bump" or a "little round thing" that was "very noticeable" in the back of his head. The appellant, however, claims that there is nothing distinctive about the back of his head; and

(ii) Keene indicated that the shooter had an unusual forehead, whereas the appellant claims that the evidence confirmed that he has a normal forehead.

The record, however, undercuts these claims by the appellant.

31At trial, Detective Sergeant Martin, the police booking officer, testified that she noticed a distinctive feature at the back of the appellant's head, both at the time of his arrest and, again, during some of her observations of the appellant in court. She described this as a small circular spot on the back of his head, in the "shape of a Loonie", stated that it was "very apparent", and indicated that the appellant's hair was "growing different there than on the rest of his head". [page301]

32Dr. Hermann Helmuth, an anthropologist who testified for the defence concerning his observations of the appellant in court, said that he did not notice any bumps or protrusions on the back of the appellant's head. However, he did describe in his evidence a particular form of hair feature known as an "occipital hair whorl", which occurs when the direction of growth in a person's hair turns either clockwise or counter- clockwise. According to Dr. Helmuth, the appellant's braided hairstyle at trial made it impossible to tell whether he had a distinctive hair "whorl", as described by Martin.

33Martin's testimony on this issue was consistent with Keene's description of the shooter and, hence, supportive of his identification of the appellant as the assailant at the nightclub. Helmuth's evidence, although not confirmatory of a distinctive feature on the back of the appellant's head, did establish the existence of a hair "whorl" phenomenon of the type described by Martin.

34The record reveals a similar flaw in the appellant's contention that there is nothing unusual about the appearance of his forehead. In his videotaped April 2001 statement, Keene described the shooter as having "a little sink cut", stating that his forehead had a "little part""like the head divide". In his earlier statement on the same day to Detective Zubek, Keene described the shooter's forehead with gestures, from which Zubek understood that the shooter had a big, prominent forehead.

35Dr. Helmuth testified that the appellant's "frontal eminences" -- the rounded elevations of the frontal bone above each eye socket -- were circular"moderately developed bumps", that were both "slightly forward protruding" and visible in the courtroom. In her testimony, Detective Sergeant Martin outlined her observations in court of the appellant's "protruding forehead". She said that she observed two "very noticeable bumps on either side of his forehead" and that he had a horizontal line in his forehead that "pretty much divided his forehead immediately in half". The evidence of these witnesses thus lent support both to Keene's identification evidence, and to the Crown's claim that the visibility of the appellant's distinctive forehead feature depended upon the nature of the appellant's hairstyle and the prevailing lighting conditions.

36Nor am I persuaded that the evidence established other clear dissimilarities between the appellant's characteristics and those of the shooter. For example, the appellant stresses that he is right-handed, whereas the evidence indicated that the shooter used his left hand to fire the gun that killed Ellison. But there was no evidence at trial that the manner in which the gun was [page302] fired, or its features (such as its weight or firing mechanism), required the shooter to use his dominant hand in order to discharge the weapon successfully.

37Second, in this case, the trial judge provided the jury with a clear caution about the frailties of identification evidence in general, and Keene's evidence in particular. He also reviewed for the jury much of the evidence relied upon by the defence as pointing to dissimilarities between the appellant's appearance and that of the shooter at the nightclub. Although the trial judge did not touch in his jury charge upon all the suggested dissimilarities between Keene's description of the shooter and the appellant's appearance, these were reviewed by counsel in their closing addresses to the jury. In any event, as Doherty J.A. of this court recently observed in R. v. Savoury, 2005 25884 (ON CA), [2005] O.J. No. 3112, 200 C.C.C. (3d) 94 (C.A.), at para. 13:

Chartier is not authority for the proposition that in a jury trial it is the trial judge's function to decide whether there are discrepancies between a description provided by a witness and the actual appearance of an accused and, if so, whether those discrepancies are significant. These are factual questions that arise out of the evidence and like other factual questions, are for the jury to decide.

38Third, it is also significant that an instruction of the type now contended for by the appellant was not sought by defence counsel at trial. Nor did defence counsel object to the trial judge's limiting instructions concerning eyewitness identification evidence and Keene's testimony. While not determinative, this tells strongly against the submission that a "Chartier instruction" was required.

39I would reject this ground of appeal.

(2) The evidence of the Statements

40The appellant attacks the admission of Ms. Freckleton's evidence of the Statements on the grounds that the trial judge erred by concluding that the Crown had established the threshold reliability of this evidence and, further, by concluding that the probative value of this evidence outweighed its prejudicial effect.

(i) Threshold reliability

41In support of his claim that the threshold reliability of the challenged evidence was not made out, the appellant makes two principal submissions. First, he contends that by focusing on whether the circumstances surrounding the making of the Statements were "inherently unreliable", the trial judge applied the [page303] wrong legal test, and thereby effectively imposed an onus on the appellant to establish that Ellison had a motive to lie to his mother, instead of requiring the Crown to demonstrate that Ellison did not have a motive to lie. The appellant maintains that this was the same type of reversible error identified by this court in R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502. Second, the appellant submits that the trial judge erred by failing to treat Ms. Freckleton's credibility and reliability as relevant to his threshold reliability analysis. I would reject both of these submissions.

42Hearsay evidence in the form of an out-of-court statement is presumptively inadmissible. As observed by the Supreme Court of Canada in R. v. Khelawon, [2006] S.C.J. No. 57, 2006 SCC 57, released on December 14, 2006, the central concern underlying this exclusionary rule is the difficulty of testing the reliability of the declarant's assertion. The exclusionary rule recognizes the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. As Charron J., writing for the Supreme Court, explained at para. 35 of Khelawon: "The fear is that untested hearsay evidence may be afforded more weight than it deserves." See also paras. 58, 59 and 61 of Khelawon.

43It is now settled law, however, that hearsay evidence in the nature of an out-of-court statement is admissible on a principled basis as an exception to this exclusionary hearsay rule where its admission can be justified on the twin criteria of necessity and reliability: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449; Khelawon, supra. "Necessity" was not in issue in this case because Ellison was dead. The issue here was whether the criterion of "reliability" was satisfied, having regard to the circumstances under which the Statements were made.

44As the Supreme Court of Canada has emphasized repeatedly, there is an important distinction between threshold and ultimate reliability. Only the former is relevant to admissibility.

45Historically, the Supreme Court also stressed the distinction between factors relevant to threshold reliability and those that concern ultimate reliability alone. Thus, in Starr at paras. 215-17, the Supreme Court indicated that, at the threshold reliability stage, the judicial inquiry is concerned only with the circumstances surrounding the making of the statement at issue and [page304] whether these afford "sufficient elements of reliability" that the statement should be considered by the trier of fact. See also R. v. Humaid, 2006 12287 (ON CA), [2006] O.J. No. 1507, 208 C.C.C. (3d) 43 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 232; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 111 C.C.C. (3d) 129.

46In Khelawon, however, this principle was abrogated. At para. 93, Charron J. held that the factors to be considered on the admissibility inquiry "should not be categorized in terms of threshold and ultimate reliability". Instead"the court should adopt a more functional approach . . . and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers". Under this approach, the trial judge plays a limited, albeit critical, role in determining admissibility. Justice Charron cautioned at para. 93"[I]t is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre- determined on the admissibility voir dire."

47Thus, Khelawon confirms that while the factors relevant to the admissibility of a hearsay statement should not be characterized according to the divide between ultimate and threshold reliability, the distinction between these measures of reliability remains of vital importance on the admissibility inquiry. Only threshold reliability is to be inquired into on the admissibility voir dire. In addition, the relevance of any particular factor to the admissibility inquiry depends on the particular dangers "arising from the hearsay nature of the statement and the available means, if any, of overcoming them": see Khelawon, at paras. 50 and 55.

48The legal test for the assessment of threshold reliability mandated by Starr and related cases places an onus on the party seeking the admission of a hearsay statement to show that the circumstances surrounding the making of the statement are sufficiently supportive of its reliability to permit its admission, despite the absence of an opportunity to cross-examine the declarant: see Smith, supra, at p. 932 S.C.R., p. 270 C.C.C.; Humaid, supra, at para. 50; R. v. Kimberley (2001), 2001 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.), at para. 64. Under this test, there is no evidential onus on the party resisting the admission of a hearsay statement to establish that the statement was made in unreliable circumstances.

49I do not read the Supreme Court's decision in Khelawon as displacing these principles. Khelawon affirms that there are two principal ways of satisfying the reliability requirement, neither of [page305] which excludes consideration of the other. One is to show that the traditional dangers associated with hearsay are either not present or are overcome because the truth and accuracy of the hearsay statement in issue can be sufficiently tested by means other than contemporaneous cross- examination: see for example, R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257; Hawkins, supra. Another is to show that the circumstances in which the statement was made provide sufficient comfort in its truth and accuracy: see the Khan, Smith, Starr and Humaid line of cases. In either situation, the proponent of the hearsay evidence bears the onus of satisfying the reliability requirement.

50In this case, the trial judge referred in his admissibility ruling to whether the circumstances surrounding the Statements were "inherently unreliable". To the extent that these references by the trial judge may be read as limiting the Crown's evidential onus to proof that the Statements were not made in circumstances of unreliability, or as requiring the appellant to demonstrate that the Statements were made in unreliable circumstances, the trial judge misspoke.

51On consideration of the trial judge's ruling as a whole, however, I conclude that his reliability analysis was properly concerned with those circumstances that either supported or negated the truth and accuracy and, hence, the reliability of the Statements. In my view, although the trial judge used the wrong language to reference the correct legal principles, he ultimately applied the proper legal test to the facts of this case as he found them. I say this for the following reasons.

52In determining that the evidence of the Statements should be admitted, the trial judge reasoned as follows:

There is nothing inherently unreliable about an account by a shot and wounded family member, recounting to another family member after the incident, the basic circumstances of the shooting and what led up to it, particularly where the family member already has independent information about the shooting, to some extent, from the authorities and from third parties.

Although a family member might have reason to minimize an incident in order to calm down or reassure a family member, nothing in the declarant's alleged statement would do so. It would do the opposite. He gains nothing by telling her this story falsely, and on the other hand he stands to lose by telling her this story falsely.

The mother already knew from others that he had been shot, and already knew from others that he had earlier stabbed someone in July.

Although it is argued that he lied in order to calm her down and put a spin on events that would cause her not to be angry with him, or to throw her off [page306] the trail, it is difficult to see how he could achieve that by telling his mother what he did. One might think the opposite. One might think that he knew he would upset her by telling her what he did and that it, therefore, would be against his interest for him to tell her what he did, if what he told her would be more likely true because it was a statement against his own self-interest. Telling this story falsely to his mother would not help calm her down and put him in a good light, it would do the opposite. If he wanted to mislead her the easiest thing would be to say it was a stranger who shot him, thereby minimizing his own blameworthiness from the stabbing. By linking his shooting to his own stabbing of the person who the Crown seeks to prove is the accused, it is asking for more concern on the part of his mother and not less concern on the part of his mother, hardly a factor that suggests unreliability and perhaps a factor that suggests the opposite to some degree.

53Under the Khan, Starr and Smith line of cases, various factors may be considered in evaluating whether a hearsay statement by a deceased declarant was made in circumstances that substantially negate the possibility of inaccuracy or fabrication. These include the presence or absence of any motive by the declarant to lie, the relationship between the declarant and the narrator of the statement, the possibility that the declarant was mistaken, and the state of mind of the declarant at the time that the statement was made. As well, the contents of a declarant's statement may be used for some purposes in determining the admissibility of the statement.

54These factors remain relevant under the Khelawon framework. In addition, notwithstanding any previous statements by the Supreme Court of Canada to the contrary, Khelawon indicates that where reliability is said to be dependent on the inherent trustworthiness of the statement in issue, the trial judge must inquire into those factors tending to show whether the statement is true or not. However, where the reliability requirement is said to be met on the ground that the trier of fact has a sufficient basis on which to assess the statement's truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. That question is left to the ultimate trier of fact: see Khelawon at para. 92.

55In some cases, evidence of the presence or absence of a motive by the declarant to fabricate plays a critical role in the determination of threshold reliability. In Starr, Iacobucci J. indicated at para. 215 that indicators of the trustworthiness of a hearsay statement could be furnished where the declarant had "no motive to lie". At para. 216 he elaborated"[L]ower courts have recognized that the absence of a motive to lie is a relevant factor in admitting evidence under the principled approach. . . . Conversely, the presence of a motive to lie may be grounds for exclusion of evidence under the principled approach." See also [page307] the decision of this court in Khelawon, 2005 4775 (ON CA), [2005] O.J. No. 723, 194 C.C.C. (3d) 161 (C.A.), at para. 24, per Blair J.A. (dissenting in the result); Czibulka at para. 36. Although the Supreme Court, in Khelawon, overruled other aspects of Starr, the quoted passages from Starr remain unaffected. Thus, evidence regarding motive to fabricate remains an important consideration in testing the truth and accuracy of a hearsay statement.

56In Czibulka, this court considered the importance to threshold reliability of this factor. Writing for the court, Rosenberg J.A. held that the hearsay statement in question should have been excluded because there was little or no evidence of the circumstances under which the statement was made. In particular, the trial judge erred in that case by relying upon the absence of evidence of the circumstances under which the statement was made to find that there was no evidence of a motive by the declarant to fabricate: Czibulka at para. 27. This court held that there was no evidence to support this key finding. Instead, in effect, the trial judge improperly approached the question of fabrication "by using the absence of evidence of fabrication to find that there was no evidence of a motive to fabricate": Czibulka at paras. 35 and 47.

57The appellant submits that the trial judge's admissibility ruling in this case suffers from similar defects. For three reasons, I disagree.

58First, and importantly, Rosenberg J.A. stressed in Czibulka that there was virtually no evidence in that case of the circumstances under which the hearsay statement in issue was made. That is not this case.

59Here, there was evidence tendered on the voir dire about certain of the circumstances surrounding the making of the Statements. This included evidence of the events leading up to the Statements, the contents of the Statements, the timing of the Statements, the declarant's alleged past history of untruthfulness to the narrator of the Statements, the declarant's dealings with the police on the matters in issue, and some evidence of the relationship between the declarant and the person to whom the Statements were made.

60Accordingly, unlike Czibulka, this is not a case where there was no evidence and no logical inference that the deceased declarant had no motive to lie at the time that he made the Statements in question to the person to whom he made them. To the contrary, there was circumstantial evidence that supported the inference that Ellison had no motive to fabricate the Statements to this particular witness -- his mother -- on this particular occasion. Upon evaluation of that evidence, the trial judge [page308] implicitly concluded that the possibility that Ellison had been untruthful was substantially negated by the circumstances surrounding the making of the Statements. Under Khelawon, this was a proper consideration: see paras. 52 and 92.

61As Rosenberg J.A. observed at paras. 37-40 and 50 of Czibulka"whether there is a motive to fabricate the story related in [a] hearsay statement can turn on a number of considerations", including the nature of the relationship between the declarant and the person to whom the statement was made, the context in which the statement was made, the circumstances under which the statement was made, and the subject matter of the statement. All these factors were at play here and were considered by the trial judge.

62The trial judge emphasized that the Statements involved a recounting by a son, who had been shot, to his mother of the background to his shooting. This took place when the mother, Ms. Freckleton, already knew that her son had been shot and, notwithstanding his earlier denial to her, that he may have stabbed someone the previous summer. The trial judge found that while Ellison may have made the Statements with a view to calming or reassuring his mother, the Statements, in fact, did not do so. Further, by acknowledging to his mother that he had stabbed someone, Ellison failed to minimize his own involvement in the events leading up to his shooting and, instead, clearly acknowledged his own earlier criminal activity. He also linked his own shooting to the stabbing by disclosing to his mother, for the first time, that he had stabbed the shooter's brother.

63Thus, in undertaking his admissibility inquiry, the trial judge considered both the relationship between the declarant and the person to whom the Statements were made, as well as the context of the alleged Statements. He was correct to do so. These factors were relevant both to the issue of whether Ellison had a motive to fabricate the story related in the Statements and to the question whether the circumstances surrounding the making of the Statements themselves tended to provide sufficient comfort in the truth and accuracy of the Statements. While the evidence on the voir dire of the circumstances under which the Statements were made was not extensive, it cannot be said that there was an evidential gap on this issue of the type present in Czibulka.

64Second, in contrast to the facts in Czibulka, there were other indicia here of the reliability of the Statements. In this case, the trial judge found that the Statements themselves would have only heightened, rather than reduced, Ms. Freckleton's [page309] concerns regarding her son's conduct and safety. This factual finding, which was open to the trial judge on the evidence adduced on the voir dire, attracts deference from this court: see R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1991] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.), at para. 49. In my view, this finding also accords with logic and common sense. Perhaps for obvious reasons, there was no suggestion at trial that Ellison would lie to his mother on the occasion of the Statements to enhance her concerns. Accordingly, this finding by the trial judge militated strongly against the possibility that Ellison fabricated his story to his mother, thereby alleviating concerns about Ellison's sincerity.

65The Statements also cast Ellison in a bad light and implicated him in criminal activity. Apart from suggesting, as they did, that Ellison may have become a "marked man" as a result of his own conduct, the contents of the Statements were clearly declarations against Ellison's own interest. This, too, enhanced the circumstantial assurance of the truth and accuracy of the Statements. As observed in Czibulka at para. 31"people are unlikely to make false Statements against their interest".

66The trial judge was also aware that the timing of the Statements was relevant to threshold reliability, including to the issue of Ellison's possible motive to lie. Although the evidence did not establish the precise date of the Statements, the trial judge found as a fact that they were made, at the latest, within 38 days after the House of Lancaster shooting. There is no suggestion that this holding was flawed. The trial judge held that this timing was sufficiently proximate to that shooting incident to provide some support for the reliability of the Statements. Thus, on the findings of the trial judge, the timing of the Statements removed any real concern about inaccurate memory. The Statements were clearly prompted by Ellison being shot. Consequently, the circumstances surrounding the making of the Statements (including Ellison's state of mind) were entirely different than the prevailing circumstances when Ms. Freckleton first confronted her son about the stabbing, when he disclaimed any involvement in the incident.

67Importantly, the trial judge also recognized the dangers of admitting the evidence of the Statements when Ellison was not available for cross-examination. He assessed this danger in the context of the evidence of Ellison's alleged history of dishonesty in his dealings with his mother, stating: "The question of [Ellison's] pattern of veracity to his mother and possible motivations to lie to his mother, is accessible through cross-examination of his mother, at least indirectly. And cross-examination of her on this point goes some distance to substituting for cross-examination of the deceased declarant." I agree. [page310]

68Third, and finally, it is important to underscore that evidence of a motive to lie will not automatically result in the exclusion of a hearsay statement. This was recognized by Iacobucci J. at para. 216 of Starr when he said, as I have indicated, that "the presence of a motive to lie may be grounds for exclusion of evidence under the principled approach" (emphasis added).

69I adopt the following propositions advanced by Blair J.A. in this court's decision in Khelawon, supra, at paras. 67 and 68 (dissenting in the result) with which, I understand, the majority of this court and the Supreme Court of Canada expressed no disagreement:

Starr stands for the proposition that "the presence of motive to lie may be grounds for the exclusion of evidence under the principled approach". . . . It does not say that evidence must be excluded in the presence of indicia of any motive to lie, regardless of the strength of those indicia. . . .

A motive to fabricate may be slight, or it may be strong, or it may lie somewhere between those extremes. In my view, depending on its strength, the presence of a motive to fabricate may be overridden, for threshold reliability purposes, by other factors pointing to reliability. It is for the trial judge to determine, in all of the circumstances, whether, in spite of the presence of some evidence of such a motive, other pertinent factors nonetheless render the proffered statement sufficiently reliable at the threshold stage that it should be passed on to the trier of fact for determination of its ultimate reliability.

70I therefore reject the appellant's claim that the trial judge's threshold reliability analysis was infected by a "Czibulka error". There was circumstantial evidence in this case that supported the inference that Ellison had no known motive to fabricate these Statements to his mother at the particular time when they were said to have been made. In the language of the Supreme Court in Khelawon at para. 66, the circumstances in which the Statements came about "provided sufficient comfort in [their] truth and accuracy" to warrant the admission of this evidence for consideration by the trier of fact.

71I also do not accept the appellant's contention that the trial judge erred in his treatment of the question of Ms. Freckleton's credibility and reliability. The trial judge's ruling reveals that he recognized the weaknesses in Ms. Freckleton's evidence. He held, however, that the requisite reliability analysis was concerned with Ellison's reliability and the reliability of the Statements, rather than with the credibility and reliability of Ms. Freckleton.

72This holding is unimpeachable. The quality of Ms. Freckleton's evidence was irrelevant to threshold reliability: see Humaid at paras. 50-51. Threshold reliability stands as a substitute for [page311] cross-examination of the declarant, rather than of the narrator of the statement in issue. Here, Ms. Freckleton was available to testify and her credibility and reliability were subject to full cross-examination at trial.

(ii) Probative value and prejudicial Effect of the challenged evidence

73The appellant also argues that the trial judge erred by overstating the probative value and underestimating the prejudicial effect of the evidence of the Statements. He submits that, on a proper assessment, this evidence should have been excluded by the trial judge in the exercise of his residual discretion, even if the evidence was otherwise admissible. Finally, the appellant maintains that this evidence was inadmissible when assessed in the light of all the trial evidence. In my view, these arguments cannot succeed.

74The trial judge undertook the necessary balancing of the probative value and prejudicial effect of the evidence of the Statements. Nothing in his ruling suggests that he was unmindful of his authority to exclude this evidence, if warranted, even if he was satisfied as to threshold reliability. The trial judge considered the defence concerns that the absence of any direct evidence linking Ellison to the stabbing of the appellant rendered the evidence of the Statements irrelevant and prejudicial, and that the jury would be distracted from its task if the evidence was admitted due to natural sympathy for Ms. Freckleton's loss of her son. He then concluded, as he was entitled to do, that the potential probative value of this evidence outweighed its possible prejudicial effect.

75In reaching this conclusion, the trial judge neither overstated the potential probative value of this evidence, nor misapprehended or understated its possible prejudicial impact. The trial judge stated"It cannot be said that the evidence is of trifling value, in an allegation of a revenge shooting such as this." If anything, this observation minimized the probative worth of this evidence. If accepted by the jury, the evidence of the Statements, together with Ms. Gao's testimony, would afford compelling evidence of a link between Ellison and the stabbing of the appellant and, hence, of a motive for revenge by the appellant. Moreover, the fact of Ellison's declaration that both the appellant and his brother were involved in the House of Lancaster shooting, if accepted by the jury, was strongly probative of the Crown's case on planning and deliberation. In these circumstances, there is no basis for appellate intervention with the [page312] trial judge's discretionary decision to admit the evidence of the Statements.

76I would also reject the appellant's argument that the evidence of the Statements was inadmissible in the light of all the evidence tendered at trial. I agree with the view of the Nova Scotia Court of Appeal expressed in R. v. Johnson, 2004 NSCA 91, [2004] N.S.J. No. 280, 188 C.C.C. (3d) 214 (C.A.), at para. 35, that appellate scrutiny of a trial judge's decision to admit evidence at trial following a pre-trial voir dire must be confined to consideration of the evidence on the voir dire and the trial judge's assessment of that evidence. Pre-trial decisions regarding the admission of evidence cannot be reviewed retrospectively through the application of hindsight, based on a subsequently changed evidential landscape.

(3) The instructions on the assessment of the evidence of the Statements

77I also do not accept the appellant's assertion that the trial judge's instructions to the jury on the assessment of the evidence of the Statements were deficient. To the contrary, I agree with the Crown's submission before this court that, considered as a whole and in the light of the issues engaged during the trial, the charge fairly and adequately conveyed to the jury the principles governing its assessment of this evidence.

78Near the beginning of his charge, the trial judge provided the jury with a general instruction regarding the proper approach to the assessment of the testimony of witnesses, including the reliability and truthfulness of a witness's evidence. Later in his charge, when explicitly addressing Ms. Freckleton's evidence, the trial judge stated:

First, you have to decide what, if anything, he said to his mother. In deciding whether or not George actually said these things that she reports, use your common sense. Take into account his state of mind and his mother's at the time of any conversation and the circumstances in which the conversation took place, and anything else that may make George's story more believable or less believable.

If you find that George's mother has reliably reported any or all of what George said, you may use what you think is reliable to help decide the case. But, if you think that there is anything that she said about what he told her, if there is anything that she has not reliably reported, don't rely on that.

You should be cautious when you determine how much or how little you depend on the evidence of what you find that George said to his mother. It may be more or less reliable than other evidence that was given. George was not under oath or affirmation when he spoke to his mother. He didn't promise to tell the truth. You didn't see or hear him testify. He could not be cross-examined here like his mother or the other witnesses. [page313]

Don't consider this evidence by itself. It is only part of the evidence which is taken into account with all the other evidence that may make it more or less reliable. It is up to you to decide how much or little of that evidence you rely upon.

Here are three questions to keep in mind:

1. Would George's mother have any reason to make up the story about what George said?

2. Would George have any reason to make up the story or any part of the story he told his mother?

3. Do you think George's mother may be mistaken about what George said, or might have put her own interpretation on what George said, or might have mixed it up with something that somebody told her later on?

79Subsequently, the trial judge returned to the subject of Ms. Freckleton's evidence and again cautioned the jury on the need to approach it with care. He reviewed her evidence and summarized the defence and Crown positions concerning it. In brief but pointed terms he reminded the jury of the core defence claims that Ellison was unreliable and untruthful, and that Ms. Freckleton, although an honest witness, may have been confused in her testimony.

80Finally, on numerous occasions during his charge, the trial judge cautioned the jury to consider all the evidence and not to consider any one piece of evidence in isolation. He reiterated this caution in his instructions on Ms. Freckleton's evidence.

81I make the following observations concerning these instructions. First, they responded directly to the defence challenge to the reliability of the evidence of the Statements including, in particular, to the defence themes that Ellison was an unreliable informant and that Ms. Freckleton's recounting of the Statements was unreliable and inaccurate. The trial judge's instructions echoed these themes and explicitly drew the jury's attention to the need to evaluate the reliability both of Ellison as an informant and of Ms. Freckleton's testimony.

82Second, contrary to the appellant's submission, the trial judge's instructions alerted the jury to the underlying weaknesses of Ms. Freckleton's hearsay evidence by underscoring the fact that Ellison, if he made the utterances alleged, did so in circumstances where no assurance of truthfulness was offered. They also pointed out that because Ellison was unavailable for cross-examination, the jury would not have the benefit of assessing his testimony or truthfulness as a witness in its deliberative process. These warnings could not have failed to convey to the jury the dangers of placing reliance on [page314] the evidence of the Statements, and the need to approach this evidence with care.

83Third, the specific questions posed by the trial judge for the jury's consideration, quoted above, highlighted the need to determine whether Ms. Freckleton was mistaken in her recall of her son's Statements, whether she was merely proffering her own version of his remarks, and whether her evidence was infused with, and consequently tainted by, third party information. This caution was also directly responsive to, and supportive of, the defence attack on the reliability of the evidence of the Statements. It unambiguously focused the jury's attention on the issues it had to consider before it placed any reliance on this evidence.

84Fourth, as the appellant concedes, the trial judge's instructions conformed, almost exactly, to the standard jury instructions for use in criminal jury trials in Ontario. While the appellant complains that the trial judge erred by suggesting that the evidence of the Statements "may be more or less reliable than other evidence that was given", in the context of the full instructions given, I do not regard this as significant. The overall effect of the instructions emphasized that the inability to cross-examine Ellison lowered the reliability of the evidence of his alleged Statements, in contrast to the reliability of the evidence of "other witnesses" whose testimony could be tested in court under oath and cross-examination.

85Fifth, the instructions also complied with the guidelines outlined in R. v. A. (S.) (1992), 1992 7517 (ON CA), 11 O.R. (3d) 16, [1992] O.J. No. 2160, 76 C.C.C. (3d) 522 (C.A.), by bringing home to the jury the need to determine whether the Statements were made and, if made, the nature of their contents, as well as the imperative to evaluate the evidence of the Statements carefully and in the light of all the other evidence at trial.

86Finally, if anything, the challenged instructions favoured the defence in several instances. For example, in outlining Ms. Freckleton's evidence for the jury, the trial judge quoted at length from her exchanges with counsel during cross-examination, including from questioning clearly designed to highlight the inconsistencies and other weaknesses in her evidence. This could only have worked to the benefit of the defence.

87I am satisfied, therefore, that the trial judge's instructions to the jury on this issue were more than adequate in the circumstances. No objection was made at trial by the defence to the instructions provided. In my opinion, based on the instructions provided, the jury would have understood that its task was first to decide whether the Statements were made and, if so, to then [page315] assess the reliability of the evidence of the Statements in the light of its inherent weaknesses, the positions of the parties, and all the other evidence at trial in determining what weight, if any, should be given to it.

IV. Disposition

88For the reasons given, I would dismiss the appeal.

89SIMMONS J.A. (dissenting): -- I have had the benefit of reading the reasons of my colleague Cronk J.A. I respectfully disagree with my colleague's conclusion that Ms. Freckleton's evidence of the Statements was admissible. In my view, the trial judge erred in holding that the Crown had established the threshold reliability of this evidence and therefore it should not have been admitted. Accordingly, I would allow the appeal, set aside the appellant's conviction and order a new trial.

I. The Trial Judge's Reasons

90As I read his reasons, the trial judge began the threshold reliability analysis by considering whether Ellison had a motive to fabricate the Statements. In doing so, he considered a theory of fabrication posited by the preliminary inquiry judge and in rejecting that theory implicitly concluded that Ellison had no motive to fabricate. Further, in the context of rejecting the theory of fabrication, the trial judge found the fact that Ellison acknowledged stabbing the shooter's brother was against Ellison's interest and therefore afforded some reliability to the Statements.

91After making these findings, the trial judge went on to consider other factors that might contribute to or detract from the threshold reliability of the Statements. These factors included: the timing of the Statements and, in particular, their proximity to the shooting incident that is the subject matter of the Statements; Ellison's specific veracity vis-à-vis his mother; the fact that Ellison's pattern of veracity and possible motivations to lie was accessible, at least indirectly through cross-examination of his mother; and the inherent plausibility of Ellison telling more to his mother about the identity of the shooter than he told to the police.

92After finding that the probative value of the evidence of the Statements was not outweighed by the possibility of unfair prejudice, the trial judge said he was "satisfied that the Statements of [Ellison] to his mother should be admitted on the basis of the principled approach to the hearsay rule in terms of necessity and reliability". [page316]

II. Analysis

93In my view, by proceeding as he did, the trial judge erred in three respects.

94First, he erred in his approach to the motive to fabricate issue.

95As noted above, on my reading of his reasons, the trial judge reached a conclusion that Ellison had no motive to fabricate the Statements by considering and rejecting a theory of fabrication posited by the preliminary inquiry judge, namely that Ellison told his mother that he was shot by the brother of a man he had stabbed in order to calm her down. In that respect, the preliminary inquiry judge indicated that Ellison had not previously acknowledged to his mother that he was involved in the stabbing and the information that she previously had was obtained from other sources. The preliminary inquiry judge theorized that Ellison's main motivation in making the Statements would be to calm his mother down "and put whatever spin he could on events that would not cause her to be angry with him for his own shortcomings".

96On the trial proper, this theory of fabrication was identified by the Crown during the voir dire submissions and not by the defence. In rejecting it, the trial judge focused on Ellison's alleged motivation to calm his mother down. On my review of the record, I see no specific evidence giving rise to a theory that Ellison wanted to calm his mother down.

97Further, in my view, the trial judge erred in: (a) considering the issue of motive to fabricate in isolation from the issue of Ellison's specific veracity vis-à-vis his mother; (b) holding that there was no motive to fabricate based on a record that demonstrated, at its highest, that there was no evidence of a motive to fabricate; and (c) the significance he afforded to the Statements being against Ellison's interest.

98As noted in R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502, at paras. 37 to 40, the question of whether there is a motive to fabricate the story related in a hearsay statement can turn on a number of considerations, including: the nature of the relationship between the declarant and the person to whom the statement was made; the nature of the relationship between the declarant and the person about whom the statement is made; the circumstances in which a statement is made; and the subject matter of the statement.

99In this case, there was evidence on the record concerning Ellison being deceitful with his mother about his activities and [page317] with whom he associated. In that regard, the trial judge made a specific finding in a subsequent portion of his reasons that Ellison's mother had expressed concerns about Ellison's veracity in relation to her on at least one earlier occasion. In my view, it was incumbent on the trial judge to consider the evidence concerning Ellison's specific veracity vis-à-vis his mother in relation to the issue of motive to fabricate.

100In R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257, the Supreme Court of Canada found that a hearsay declarant's capacity for deceitfulness may be a relevant consideration in assessing the issue of motive to fabricate. The issue in Smith was the admissibility of three telephone calls made by the deceased to her mother. In relation to the first two Statements ("Larry has left me"; and "Larry has not come back and I need a ride"), the court held that the Statements were made under circumstances that did not give rise to apprehensions about their reliability.

101As for the third statement ("Larry has come back and I no longer need a ride"), the court said [at para. 40] it was not "without apprehensions that [the declarant] may have been mistaken, or, indeed, might have intended to deceive her mother on this account" (emphasis added). While there was evidence in Smith indicating a specific theory of fabrication (the mother may have arranged a ride with someone of whom the appellant was afraid), the court also noted that the declarant was travelling under an assumed name using a credit card that she knew was either stolen or forged, and therefore was at least capable of deceit.

102In addition to finding other possible motives to fabricate the court said [at para. 43]: "It may have been that she decided to lie to her mother to conceal some aspect of her activities or circumstances." The court went on to explain its reasoning as follows [at para. 44]:

I wish to emphasize that I do not advance these alternative hypotheses as accurate reconstructions of what occurred on the night of [the declarant's] murder. I engage in such speculation only for the purpose of showing that the circumstances under which [the declarant] made the third telephone call to her mother were not such as to provide that circumstantial guarantee of trustworthiness that would justify the admission of its contents by way of hearsay evidence without the possibility of cross-examination. Indeed, at the highest, it can only be said that hearsay evidence of the third telephone call is equally consistent with the accuracy of [the declarant's] Statements, and also consistent with a number of other hypotheses. I cannot say that this evidence could not reasonably have been expected to have changed significantly had [the declarant] been available to give evidence in person and subjected to cross-examination. (Emphasis added) [page318]

103In this case, the trial judge's implicit conclusion that the Statements were made under circumstances that did not give rise to apprehensions about their reliability and his express conclusion that to the extent the Statements were against Ellison's interest they provided some support for their reliability, were based on considering and rejecting the theory of fabrication that Ellison wanted to calm his mother down.

104In my view, the trial judge reached these conclusions without considering the factors that did give rise to apprehensions about the reliability of the Statements, namely, the circumstances leading up to the Statements (Ellison had recently been involved in a shooting incident), Ellison's specific pattern of veracity vis-à-vis his mother, and the fact that the evidence of the Statements could be consistent with Ellison deciding to lie to his mother to conceal some aspect of his activities or circumstances. Further, the trial judge failed to consider whether, in the light of these factors, the evidence of the Statements could reasonably be expected to have changed had Ellison been available for cross-examination.

105In my view, had the trial judge considered the foregoing matters, at most he would have concluded that Ellison's motive for making the Statements was unclear and that, depending on his motive, the Statements could have been somewhat against his interest. Such a conclusion would not have contributed to a finding of threshold reliability.

106In any event, in my view, the trial judge erred by founding his implicit conclusion that Ellison had no motive to fabricate on an absence of evidence of a motive to fabricate. The trial judge's conclusion was based on rejecting the theory of fabrication posited by the preliminary inquiry judge. The fact that a theory of fabrication was rejected does not demonstrate that there was a proven absence of motive to fabricate. Unlike proven absence of motive to fabricate, absence of evidence of motive to fabricate is a neutral factor in the threshold reliability analysis. As this court explained in Czibulka, at paras. 44 and 45:

Lack of evidence of motive to fabricate is not equivalent to proved absence of motive to fabricate. In other words, a finding that there is simply no evidence one way or the other that the declarant had a motive to fabricate cannot be converted into a finding in favour of the proponent that the declarant had no motive to fabricate.

Where absence of motive to fabricate is an important factor in resolving the reliability question I do not see how a trial judge could be satisfied the Statements possessed "sufficient elements of reliability" in the absence of evidence of motive. [page319]

107Further, in my view, the trial judge erred in the significance he afforded to the Statements being against Ellison's interest. As already noted, depending on whether Ellison had a motive to fabricate, the significance of this factor would vary. Moreover, Ellison's admission to his mother would not meet the requirements of the traditional hearsay exception of being against Ellison's penal interest (see R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, [1975] O.J. No. 2648, 25 C.C.C. (2d) 417 (C.A.), affg 1977 25 (SCC), [1978] 1 S.C.R. 538, [1977] S.C.J. No. 60, 34 C.C.C. (2d) 137; R. v. O'Brien, 1977 168 (SCC), [1978] 1 S.C.R. 591, [1977] S.C.J. No. 65, 35 C.C.C. (2d) 209), and therefore would not provide a guarantee of reliability. Even on a less formalized basis, Ellison's admission was little more than confirmation of that which his mother already knew, or at least suspected.

108Second, as noted by my colleague, the trial judge misstated the test for admission of a hearsay statement under the principled approach when he said"As to threshold reliability, the declarant's statement to his mother was not made under inherently unreliable circumstances." In my view, the trial judge's reasons do not demonstrate that he subsequently applied the proper test. While he found there were some factors contributing to threshold reliability and at least one factor detracting from it, the trial judge did not express a conclusion concerning the weight of the various factors in terms that are different than the conclusion set out above.

109Third, in my view, the trial judge placed undue emphasis on the fact that Ms. Freckleton was available for cross-examination and on the inherent plausibility of Ellison telling more to his mother about the identity of the shooter than he told to the police as contributing in any way to the threshold reliability of the evidence of the Statements.

110The trial judge found that the fact that Ellison's pattern of veracity vis-à-vis his mother and possible motivations to lie was accessible, at least indirectly through cross-examination of his mother went "some distance to substituting for cross-examination of the deceased declarant". Given that there was evidence of Ellison being deceitful with his mother about his activities and associates, her availability for cross-examination was a poor substitute for what might be learned from Ellison about his motivation for making the Statements had he been available.

111Further, while it may be inherently more plausible that a son would tell his mother more about the identity of an assailant than he would tell the police, I fail to see how that general proposition in any way enhances the likelihood that, on the specific [page320] facts of this case, Ellison was truthful in making the Statements to his mother. The fact that Ellison was not forthcoming with the police does not provide a guarantee that he told the truth to his mother.

112On my analysis, the major hearsay danger arising from the evidence of the Statements is the issue of Ellison's sincerity [See Note 1 below] and the fact that he is not available to be cross-examined concerning the truthfulness of the Statements. While I conclude that there is at least one factor detracting from the threshold reliability of the evidence of the Statements with respect to their sincerity (Ellison's specific pattern of veracity vis-à-vis his mother), in my view, there are no factors that "negate or at least ameliorate" that danger with respect to this evidence: see R. v. Kimberley (2001), 2001 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.).

113In that respect, I do not agree that, on the facts of this case, the contemporaneity of the Statements in any way addresses the hearsay danger relating to sincerity. In this case, in my view, the timing of the Statements is a matter that goes solely to the hearsay dangers relating to the perception and memory of the declarant.

114I therefore conclude that the trial judge erred in his analysis of the threshold reliability of the evidence of the Statements and that on a proper analysis the Crown failed to demonstrate their threshold reliability. Accordingly, I would allow the appeal, set aside the appellant's conviction and order a new trial.

Appeal dismissed.

Notes ----------------

Note 1: In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, Iacobucci J. refers to the Law Reform Commission of Canada 1975 Report on Evidence, at pp. 68-69, where the hearsay dangers are described in terms of an inability to inquire into the declarant's "perception, memory, narration or sincerity". See also R. v. Khelawon, [2006] S.C.J. No. 57, 2006 SCC 57, at para. 2.