Her Majesty the Queen v. Kailayapillai

[Indexed as: R. v. Kailayapillai]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Hoy and Pepall JJ.A.

April 22, 2013

115 O.R. (3d) 363 | 2013 ONCA 248

Case Summary

Criminal law — Evidence — Prior consistent statements — Accused seeking to adduce portion of statement made following arrest during his re-examination — Accused charged with murdering his wife — Accused's palm prints smeared with deceased's blood found on wall of garage where deceased's body was found by family — Key issue being [page364] when accused placed print — Accused's children and mother-in-law testifying accused not entering garage during search of deceased nor after body found — Accused testifying at trial that he touched body after it was discovered and then placed hand on wall while turning on light — Crown not referring at any time to statement made by accused to police after his arrest — Trial judge correctly holding that Crown's suggestion on cross-examination that accused lying not amount to allegation of recent fabrication — Statement not admissible under "spontaneous reaction" exception to rule against admissibility of prior consistent statements as there was no evidence at trial as to timing of and circumstances surrounding making of statement.

The accused was convicted of murdering his wife. The deceased's body was found by the family in the garage of their home. The accused's palm prints, smeared with the deceased's blood, were found on the garage wall. The timing of the placement of the prints was a central issue at trial: if they were placed on the wall before the body was discovered, the accused was guilty. The accused's children and his mother-in-law testified that the accused did not enter the garage during the search for the deceased nor after the body was found. The accused testified that he touched the deceased's body after his family discovered it, then he placed his hand on the wall while turning turned on the light, as it was dark in the garage. In cross-examining the accused, the Crown alleged that his evidence was false in many particulars. Defence counsel sought to put to the accused on his re-examination an extract from a statement that the accused gave to the police after his arrest. Counsel had resisted the admissibility of the statement up to that point, and the Crown had not referred to the statement at any point. In the statement, the accused said that he put the light on and then went to the body. The trial judge refused to allow defence counsel to put the extract to the accused, ruling that it did not support the contention that the accused had given a consistent explanation for how his prints had come to be on the garage wall and that there was no allegation of recent fabrication made by the Crown. The accused appealed.

Held, the appeal should be dismissed.

The statement was not admissible to rebut an allegation of recent fabrication. Where the allegation or implication of the cross-examination is merely that the accused is lying because he or she is the perpetrator and is seeking to avoid conviction, the rationale for admitting a prior consistent statement does not apply. A bald allegation of fabrication does not suggest an event, other than the commission of the crime, giving rise to a motive to fabricate. Without that suggestion, the prior consistent statement has no potential to rehabilitate. There was no allegation in the Crown's cross-examination, express or implied, of a cause for fabrication, apart from the Crown's allegation that the accused was the perpetrator. Several years after the accused's conviction, the Ontario Court of Appeal established an exception to the general rule with respect to the inadmissibility of prior consistent statements. That exception applies to an accused's spontaneous reaction when confronted with an allegation. The statement could not have been admitted under that exception as there was no evidence before the trial judge with respect to the timing of, and the circumstances surrounding the making of, the accused's statement to the police. As a result, the trial judge had no way of evaluating the spontaneity of the statement or to determine whether it was made when the accused was first confronted with the accusation. Even taking into account information provided on appeal about the statement, there was still no basis to find that the statement was spontaneous or made when the accused was first confronted with the accusation, as the statement was made seven hours [page365] after the accused first came in contact with the police and four hours after he arrived at the police station, and there was no evidence about what he did or who he talked to between the arrival of the police at his home and the eventual statement.

R. v. Edgar (2010), 101 O.R. (3d) 161, [2010] O.J. No. 3152, 2010 ONCA 529, 269 O.A.C. 171, 260 C.C.C. (3d) 1, 78 C.R. (6th) 106, consd

Other cases referred to

R. v. Badhwar, [2011] O.J. No. 1541, 2011 ONCA 266, 280 O.A.C. 273, 9 M.V.R. (6th) 163, 270 C.C.C. (3d) 129, 94 W.C.B. (2d) 465; R. v. Divitaris, 2004 CanLII 9212 (ON CA), [2004] O.J. No. 1945, 186 O.A.C. 366, 188 C.C.C. (3d) 390, 63 W.C.B. (2d) 212 (C.A.); R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, J.E. 2008-619, EYB 2008-130905, 371 N.R. 384, 229 C.C.C. (3d) 257, 54 C.R. (6th) 228, [2008] 5 W.W.R. 579, 77 B.C.L.R. (4th) 1, 291 D.L.R. (4th) 1, 59 M.V.R. (5th) 1, 251 B.C.A.C. 62, 76 W.C.B. (2d) 761; R. v. Wannebo, 1972 CanLII 1440 (BC CA), [1972] B.C.J. No. 685, [1972] 5 W.W.R. 372, 7 C.C.C. (2d) 266 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms

Authorities referred to

Berger, Benjamin L., "Reasoning with Inferences: Themes from Prior Consistent Statements and Trace Evidence" (2012), 92 C.R. (6th) 254

Hill, S. Casey, et al., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2003)

APPEAL by the accused from the conviction entered by a jury presided over by Fuerst J. of the Superior Court of Justice dated November 29, 2008.

Philip Campbell and Michael Dineen, for appellant.

Michael Bernstein, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

[1] The appellant was convicted of murdering his wife and sentenced to life imprisonment without eligibility for parole for 14 years. He appeals his conviction.

[2] Identity was the central issue at trial. There was little, if any, doubt that whoever killed the victim was guilty of murder. The Crown's case against the appellant was circumstantial. He testified and denied that he had anything to do with his wife's death.

[3] The primary ground of appeal arises out of the trial judge's refusal to allow counsel for the appellant to put to the appellant, [page366] on his re-examination, an extract from a statement the appellant had given to the police. Counsel had resisted the admissibility of that statement and any evidence derived from it throughout the trial, including during the appellant's cross-examination. After cross-examination was completed, counsel changed his position and argued that the extract from the statement was admissible on re-examination because it was consistent, at least to some extent, with the appellant's testimony and could be used to rebut the allegation of recent fabrication made during cross-examination of the appellant.

[4] The argument failed at trial. The trial judge held that the statement was neither consistent with the appellant's trial testimony, nor properly offered to rebut an allegation of recent fabrication.

[5] Counsel renews that submission on appeal, and also argues that the statement is admissible under the principle set down in R. v. Edgar (2010), 101 O.R. (3d) 161, [2010] O.J. No. 3152, 2010 ONCA 529, 260 C.C.C. (3d) 1, a case decided long after this trial.

[6] I agree with the trial judge that there was no allegation of recent fabrication explicit or implicit in the cross-examination of the appellant such as to permit counsel to adduce a prior consistent statement on re-examination. Nor, in my view, can this trial record support the admissibility of the statement under the ratio in Edgar.

[7] The other ground of appeal arises out of the evidence of a Crown witness, Dante Remo. Mr. Remo, who was a co-worker of the appellant and his wife, was having an affair with the appellant's wife at the time of her death. The appellant alleges that the trial judge wrongly instructed the jury that there was no evidence that Remo was involved in the murder and that the trial judge improperly prohibited cross-examination of Remo to show his possible connection to the homicide.

[8] This ground of appeal cannot succeed. It was common ground that there was no evidence that could support a finding that Mr. Remo was involved in the appellant's wife's death. Nor did the trial judge improperly restrict cross-examination. She did, quite properly, take steps to prevent the jury from speculating about Mr. Remo's possible involvement in the murder.

II

Facts

[9] The appellant and the deceased, Thayalini, were married in 1993. In November 2006, they lived in Markham, Ontario [page367] with their three children and the deceased's mother. Both were hard-working individuals. According to the appellant, and others, the marriage was a good one. According to the mother-in-law, there were arguments and the appellant could be verbally abusive.

[10] Thayalini was having an affair with Mr. Remo, a co-worker, although he was more interested in the gifts and money she gave to him than in any romantic or long-term relationship. The appellant testified that he knew his wife and Mr. Remo were friends, but denied knowing about their affair. There was some, but not much, evidence from which it could be inferred that the appellant was aware of the affair.

[11] The appellant and Thayalini went to their respective jobs on the evening of Friday, November 3. The appellant arrived home sometime before 4:30 a.m. on Saturday, November 4. Thayalini, who was working the night shift at Tim Horton's, arrived home between 7:10 and 7:15 a.m. on Saturday, November 4.

[12] Thayalini's body was found by her daughter on the garage floor at about 9:11 a.m. on Saturday, November 4. The garage was attached to the house by a breezeway. Thayalini was lying face down with her head pointed toward the rear of the garage. One end of a rope was tied around her neck and the other end was around the garage door opener track. Her head and neck were about six inches off the ground. There was one pool of blood under Thayalini's head and another by the steps leading from the garage to the breezeway.

[13] The autopsy revealed several blows to the head, probably administered with the heavy metal bar found a few feet from the body. There were also defensive wounds on the deceased's hands.

[14] The Crown's expert opined that death was caused by a combination of asphyxia due to hanging and brain injury caused by blunt force trauma. He testified that his findings were consistent with the deceased's having been rendered unconscious by blows to the head and then hanged using the rope found around her neck.

[15] Two palm prints smeared with Thayalini's blood were found on the wall of the inside of the garage to the right and above the handrail of the stairs leading from the garage to the breezeway. The prints were on the same side of the handrail as a switch controlling the lights in the garage, but were well below that switch. The defence conceded that both palm prints came from the appellant's left hand. Those prints were by far the most important evidence in the case. [page368]

[16] The appellant's mother-in-law, his daughter and his son all testified about the events leading up to the discovery of the body. According to their evidence, the mother-in-law became concerned about Thayalini's whereabouts sometime after 8:00 a.m. when she noticed her daughter's car parked on the street outside of the house. A search of the house ensued. The daughter eventually found her mother's body in the garage.

[17] The mother-in-law, daughter and son all testified that the appellant did not go into the garage while they were searching for the deceased and did not go into the garage after her body was found. The Crown argued that if the jury accepted that the appellant did not go into the garage when, or after the body was found, his bloody palm prints were conclusive evidence of his guilt.

[18] The defence vigorously challenged the evidence of the three witnesses as both unreliable and incredible. Unreliable because the cross-examination of the witnesses demonstrated that they could not really say where the appellant was throughout the time that they were looking for Thayalini or waiting for the police after they found the body. Incredible because the witnesses had a motive to lie. The family came to the conclusion very early on that the appellant had murdered his wife and were, according to the defence, prepared to give false evidence, if necessary, to convict him.

[19] The appellant gave a different version of events. He testified that his daughter woke him up at about 9:00 a.m. and asked where her mother was. The appellant got up and was walking down the stairs to the main floor of home when he heard his mother-in-law scream from the garage. The appellant went to the garage door in the breezeway where his daughter was standing. He saw his wife lying on the garage floor and rushed to her side. There was a rope around her neck and he tried to remove it. The garage door closed and the garage became dark.

[20] The trial judge summarized the next part of the appellant's evidence in these words in her instruction to the jury:

At that point the garage door closed. The garage became dark. He went to the switch located on the wall to the right of the garage door, which activated the light on the garage door opener. It was pretty dark and he couldn't see the switch, but he used it all the time and knew it was there. He had his right hand over his head against the wall and his left hand at chest level in front of him against the wall. He was able to hit the switch and put the light on. Then he ran into the house.

(Emphasis added)

[21] On the appellant's testimony, he went to his wife's body first and only went to the light switch after the lights went off in [page369] the garage. On this version of events, the appellant could have got his wife's blood on his hands as he tried to remove the rope from her neck and he may have left the bloody palm prints from his left hand on the wall as he leaned against it reaching in the dark for the light switch with his right hand.

[22] In his closing address to the jury, counsel for the appellant conceded that if the appellant's prints were placed on the wall before his daughter discovered the body, "it follows necessarily from the timeframe of this case that he must have killed his wife". Counsel argued, however, that the appellant's version of events provided an innocent explanation for the palm prints. Counsel said:

What's distinctive about these marks, I suggest, is that they are exactly where you'd expect them to be if they were placed there by someone trying to turn on the light. Look where they are. We've heard they're approximately four feet off the ground, they're directly below and a little bit to the left of the light switch, and exactly where a right-hander would brace himself if he was leaning towards the wall[.]

[23] I need not review the rest of the evidence, or the arguments for and against the respective positions of the Crown and the defence relating to the palm prints. It is sufficient to say that without the potentially incriminating inference from the palm prints, the Crown's case against the appellant was not strong. The question of when the palm prints were made was ideally suited for determination by a jury. The trial judge's instructions on this issue are not challenged.

III

The Admissibility of the Extract from the Appellant's Statement to the Police

(a) The trial record

[24] The police arrived at the appellant's home at 9:19 a.m. on November 4. The first officer at the scene saw the mother-in-law, daughter and son standing in the doorway between the house and the breezeway. The appellant was lying in a fetal position on the floor of the living room behind the rest of the family. He did not speak to the police officer.

[25] The officer entered the garage and checked Thayalini's body for vital signs. He returned to the living room. The appellant was still lying motionless in the fetal position. The officer quickly checked the appellant. He was awake and breathing, but did not attempt to communicate with the officer. The officer [page370] confirmed that no one other than fire or emergency personnel entered the garage after he arrived.

[26] There was no reference to any statement made by the appellant to the police, or to any interview of the appellant by the police, during the Crown's case. Crown counsel advised the trial judge that a statement had been made, but indicated she would not seek to have that statement admitted as part of the Crown's case.[^1] Nothing said by defence counsel during the Crown's case, either in submissions or by way of cross-examination, suggested that from the defence perspective any interaction between the appellant and the police had any potential probative value for the defence.

[27] The appellant was not asked about any interaction with the police during his examination-in-chief. He was not asked why he went to the police station, what he did before he went to the police station, and he was not asked about his interview with the police.

[28] During Crown counsel's cross-examination of the appellant, Crown counsel sought to ask the appellant questions about a certain photograph. Defence counsel objected on the basis that the information on which the Crown sought to cross-examine came from the statement the appellant had given to the police. Defence counsel indicated that Crown counsel had undertaken not to cross-examine on information derived from that statement. Crown counsel took the position that she was not in breach of the undertaking. After hearing submissions, the trial judge held that the Crown could not pursue the challenged line of questioning. No reference was made during cross-examination to any statement to the police or any interaction between the police and the appellant.

[29] Crown counsel concluded her cross-examination by putting the Crown's position forward through a series of questions, the final one being:

You take off your clothes and shoes that are covered in blood and you get rid of them, and you go back to bed and you wait, and you never enter that garage again, agree or disagree?

[30] When Crown counsel's cross-examination was completed, defence counsel sought permission to re-examine the appellant on a portion of the statement he made to the police. Counsel submitted that as the Crown had suggested in cross-examination that [page371] the appellant's evidence was contrived, counsel should be allowed to lead a prior consistent statement in re-examination to rehabilitate the appellant's credibility. Counsel proffered a translation of a two-page extract from the appellant's statement. He maintained that the contents of the extract supported the claim that the appellant had given a description of his movements into and around the garage that provided an innocent explanation for the bloody palm prints long before the appellant could possibly have realized that those prints were on the wall. Defence counsel put it this way:

It is vitally important to this man's defence for the jurors to know that early on before there are tapes in production, before there are transcripts in production, before there is disclosure, before there is a palm print, that he gave an account which accords with the independent evidence in this case.

(Emphasis added)

[31] The Crown objected to the admission of the extract from the statement on re-examination. She maintained that the accused's statement was "in the purview and complete control of the Crown whether or not to lead that statement or use it for any purpose in cross-examination".

[32] After hearing argument, the trial judge ruled that the extract from the statement would not be permitted on re-examination, first because it did not support the contention that the appellant had given a consistent explanation for how his palm prints in the deceased's blood had come to be on the wall of the garage and, second, because there was no allegation of recent fabrication made by the Crown.

(b) Additional facts pertaining to the statement

[33] The parties at trial led virtually no evidence about either the circumstances surrounding the making of the statement to the police, or the context or chronology relevant to that statement. Quite simply, the statement had no relevance to the case for the Crown or the defence until the appellant's re-examination and even then the limited basis upon which counsel sought to produce the statement rendered many of the details surrounding the taking of the statement irrelevant. Those details are, however, important to admissibility under the argument advanced on appeal based on this court's decision in Edgar.

[34] Crown counsel on appeal filed the DVD of the appellant's interview with the police and a transcript of that interview. That material does provide some context and chronology. I will refer to it for that purpose only.

[35] According to the DVD, the appellant entered an interview room at the police station at 12:23 p.m. on November 4. He was [page372] left alone in the room. There is no evidence about anything the appellant did that morning before he arrived at the police station, no evidence as to how long he had been in the police station before he was shown into the interview room, no evidence as to whether he went to the police station alone or with someone else, and no evidence as to what caused him to go to the police station.

[36] According to the DVD, the appellant was in the interview room, with a few minor exceptions, for some 11 hours, until about 11:21 p.m. He was questioned for part of the time by Detective Martin, but was alone most of the time. The appellant was clearly upset.

[37] Detective Martin began to interview the appellant at about 4:21 p.m., some four hours after he arrived in the interview room. Detective Martin arranged for a Tamil interpreter, who entered the interview room about 4:38 p.m. Within a few minutes, Detective Martin asked the appellant, through the interpreter, whether he knew why he was at the police station. According to the interpreter, the appellant referred to "the problem what happened at home". Detective Martin replied, "what does he mean by the problem"?

[38] The appellant's response to Detective Martin is the statement counsel wanted to tender on re-examination.[^2] I will set out the translation in full:

SK [appellant]: At home . . . wife had gone to work. I was sleeping. Then at nine had to go to the Tamil class for the small child. . . .Wife works at Tim Hortons. Her work finishes at seven. We were sleeping. I was sleeping. Daughter got up at nine and said: mother is not here. Then we both (self and wife) used to sleep in my room. Mother comes in morning. Sometimes she sleeps in the other room or sometimes on the sofa downstairs. Because we were sleeping she did not wish to disturb us I told daughter to check in her brother's room. Not there. Then maybe she is on the sofa sleeping. Go and see. . . . and I came downstairs. . . .Then mother-in-law said the car is there. She is not here. The Jeep is parked in front of the house . . . . She wasn't to be seen. Where could she be, we were wondering . . . . While we were on a side talking, wondering where should could have gone, daughter opened the basement door and saw her inside. I went up and looked. Mother-in-law came running and started shouting and screaming . . . . (sobs) . . . . She was lying face down . . . . Put the light on and looked. Wanted to go and carry her . . . . tugged at the rope. It wouldn't come off. Went to the neighbor . . . . took a knife to cut (the rope): The neighbor said: Don't touch. [page373] I will call the Police. We had called the Police as soon as we saw her in the basement. As soon as daughter saw her mother we had at once run and called the Police . . . around 9:15. Tamil class at 9:30.[^3]

(Emphasis added)

[39] The interview continued for about 25 minutes until the appellant asked if he could speak to a lawyer. Detective Martin arranged for the appellant to consult with a Tamil-speaking lawyer. After the consultation, Detective Martin attempted to resume the interview. The appellant repeatedly told Detective Martin, through the interpreter, that the detective should speak to his lawyer.

(c) Was the statement admissible to rebut an allegation of recent fabrication?

[40] I will first address the argument advanced in this court that tracks the argument made at trial. If a cross-examiner suggests, explicitly or implicitly, that a witness has a reason or motive to fabricate his evidence, and that the motive or reason has caused the witness to lie in his or her testimony, it is open to the party who called the witness to lead evidence on re-examination that the witness gave the same account before the alleged reason or motive to fabricate arose: see R. v. Wannebo, 1972 CanLII 1440 (BC CA), [1972] B.C.J. No. 685, 7 C.C.C. (2d) 266 (C.A.).

[41] If, for example, an accused is cross-examined in an effort to show that his exculpatory version of events was concocted with a co-accused when they were incarcerated together, the defence could lead evidence of a statement made by the accused, consistent with his trial testimony, and made before the alleged meeting with the co-accused in jail: see R. v. Divitaris, 2004 CanLII 9212 (ON CA), [2004] O.J. No. 1945, 188 C.C.C. (3d) 390 (C.A.), at para. 37.

The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness' evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness' evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior [page374] consistent statement: see R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at paras. 5-7.

[42] Clearly, not all cross-examination intended to show that an accused's testimony is false opens the door to prior consistent statements. Were it otherwise, the admissibility of prior consistent statements to rehabilitate credibility could hardly be described as an exception to the general rule excluding such statements: see S. Casey Hill et al., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2003), at para. 11:40.10.20.

[43] The rationale underlying the rule permitting the admission of a prior consistent statement to rehabilitate credibility is triggered by cross-examination that expressly or implicitly suggests that something has occurred between the event giving rise to the charge and the accused's testimony that has provided the accused with a motive to testify falsely. A statement made before the alleged motive arose consistent with the accused's testimony rebuts that suggestion.

[44] Where the allegation or implication of the cross-exami-nation is merely that the accused is lying because he or she is the perpetrator and is seeking to avoid conviction, the rationale for permitting a prior consistent statement does not apply. A bald allegation of fabrication does not suggest an event, other than the commission of the crime, giving rise to a motive to fabricate. Without that suggestion, the prior consistent statement has no potential to rehabilitate.

[45] I have read the cross-examination. There is no doubt that Crown counsel alleged that the appellant's evidence was false in many particulars, including his description of having gone into the garage after the body was found on the morning of November 4. Crown counsel conducted a probing and effective cross-examination of that part of the appellant's evidence. I see no allegation, express or implied, however, of a cause for fabrication, apart from the Crown's allegation that the appellant was the perpetrator.

[46] Mr. Campbell, with his usual force and clarity, submits that the statement should have been received to support the veracity of the appellant's trial testimony because when the statement was made the appellant "had no reason to fabricate the essential aspects of his statement".

[47] I cannot agree with this submission. The most "essential aspect" of the appellant's statement was his indication that he had rushed into the garage as soon as he saw his wife's body and tried to help her. The appellant described himself as acting as one would expect a loving, innocent husband to act in the [page375] circumstances. If the appellant was the killer, he had a strong motive when speaking to the police to depict himself as acting in a manner that was consistent with the way an innocent, loving husband would react. At the time the appellant spoke to the police, he potentially had a very strong reason to fabricate the claim that he had gone into the garage as soon as he saw his wife's body.

[48] I think Mr. Campbell's submission that the prior statement could rehabilitate the appellant's credibility would have more force if the appellant's statement to the police could be read as being consistent with his trial testimony concerning the placement of the palm prints on the wall. Were that the case, it could be argued that a statement to the police providing an exculpatory explanation for potentially incriminatory evidence, at a time when the accused was unaware that the police had the evidence, could be admitted to support the credibility of testimony offering the same explanation at trial.

[49] The difficulty with this submission, however, is that the statement to the police does not support the appellant's trial evidence insofar as the palm prints are concerned. According to the statement, the appellant, when he saw his wife lying on the garage floor:

She was lying face down . . . Put the light on and looked. Wanted to go and carry her . . . tugged at the rope. It wouldn't come off. Went to the neighbour . . . took a knife to cut [the rope].

[50] On this version, the appellant turned the lights on before he went to his wife's body. He could not have had his wife's blood on his hands when he turned the light switch on and the palm prints could not have been made in the manner suggested during his trial evidence. Nothing in the statement suggests that the appellant was anywhere near the site of the bloody palm prints after he had gone to his wife's body and potentially got her blood on his hands.

[51] Not only is the statement not consistent with this aspect of the appellant's trial testimony, if anything, it suggests an attempt by the appellant to tailor his trial evidence to the details elicited during the Crown's case. The very detailed description in the appellant's testimony about his movements in the garage stands in stark contrast to the absence of any detail in the statement to the police.

[52] The trial judge did not err in refusing to admit the extract from the appellant's statement to the police under the traditional recent fabrication exception to the rule excluding prior consistent statements. [page376]

(d) Was the statement admissible under Edgar?

[53] This ground of appeal raises a problem that occurs from time to time in criminal appeals, no doubt because many criminal appeals, particularly murder appeals, are heard years after the trial.[^4] The law sometimes changes as the years pass between the trial and the appeal. Those changes spawn appellate arguments not advanced at trial.

[54] Edgar, decided about two years after this trial, changed, to some extent, the law applicable to the admissibility of prior consistent statements made by an accused who testifies at trial. Counsel, as he is entitled to do, relies on the law as pronounced in Edgar in alleging reversible legal error. Assessing this ground of appeal is less about appellate review of a trial decision than it is about deciding whether the statement would have been admitted had Edgar been decided prior to the trial.

[55] The merits of the appeal based on Edgar must, however, be addressed having regard to the trial record as it exists, even though that record was not constructed with Edgar in mind. The appellant must show that on a proper application of the principle from Edgar to the trial record, the statement would have been admitted. Counsel does not succeed on the appeal by showing that on the principle enunciated in Edgar the statement might have been admissible if counsel had developed a trial record as counsel may have done if he had the benefit of the judgment in Edgar. The possibility, in light of a change in the law, that the trial record might have been different and the statement might have been admissible, does not constitute an error in law, a miscarriage of justice, or provide any other basis for allowing the appeal.

[56] Before turning to the application of Edgar to this trial record, I note that the appellant's statement was proffered on re-examination. Re-examination was an appropriate time to proffer the statement given that it was offered to rebut the allegation of recent fabrication that allegedly arose in cross-examination. Under the wider basis for admissibility contemplated by Edgar, however, an accused's allegedly consistent statement should be introduced during examination-in-chief and not on re-examination. I need not consider the effect of introducing the statement in re-examination on the merits of the argument that the statement was admissible under the principle in Edgar. I am satisfied that even if counsel had tendered the [page377] statement during the appellant's examination-in-chief, it could not have been admitted under Edgar.

[57] In Edgar, this court extended the principled approach to the admissibility of hearsay evidence to prior consistent statements made by an accused: see Benjamin L. Berger, "Reasoning with Inferences: Themes from Prior Consistent Statements and Trace Evidence" (2012), 92 C.R. (6th) 254. Instead of determining the admissibility of prior consistent statements by reference to a series of specific exceptions, e.g., to rebut an allegation of recent fabrication, Sharpe J.A., at para. 72, described a broader basis for the potential admissibility of such statements:

I conclude that it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence), but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

(Emphasis added)

[58] As my colleague explains, an accused's prior consistent statement can be characterized as the accused's "reaction" when confronted with an allegation. As a matter of common sense and human experience, one's reaction to an allegation may assist in determining the truth of that allegation. Similarly, where one's reaction takes the form of a statement, the consistency between that statement and one's trial testimony can enhance the credibility of the trial testimony.

[59] Not all reactions to allegations have probative value. The English cases relied on in Edgar refer to statements made by an accused "when first taxed with incriminating facts". Edgar itself refers to statements that are "spontaneous" and made [at para. 72] "upon arrest or when first confronted with an accusation".

[60] The probative value of the accused's prior consistent statement under the Edgar analysis lies in its ability to truly reflect the individual's honest and genuine reaction to the allegation. Statements made in circumstances where it cannot be said that the statement reflects an honest reaction do not have probative value. The circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.

[61] Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his [page378] or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused's reaction to the allegation. In R. v. Badhwar, [2011] O.J. No. 1541, 2011 ONCA 266, 270 C.C.C. (3d) 129, at paras. 21-22, the court said:

Whatever else may be said about it, it [the statement] can hardly be characterized as spontaneous. The appellant had five hours to consider his position and "think things out" before going to the police station. He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police.

In these circumstances, if the trial judge had had the benefit of Edgar, I believe he would have excluded the appellant's statement for lack of spontaneity[.]

[62] In this case, the trial judge had no evidence upon which to evaluate the spontaneity of the appellant's statement, or to determine whether the statement was made when the appellant was first confronted with the accusation. The record was silent on these matters and everything else surrounding the making of the statement.

[63] It was incumbent upon the defence, as the party proffering the evidence, to establish admissibility. Counsel, of course, cannot be faulted for not foreseeing the development in Edgar. Absolving trial counsel of any fault for not producing the necessary record does not, however, mean that this court can allow an appeal based on what the record might have been had trial counsel turned his mind to the issue raised on appeal.

[64] Even if one takes into account the information provided on appeal about the statement, there is still no basis to find that the statement was either spontaneous or made when the appellant was first confronted with the accusation. Based on the DVD, the statement was made some seven hours after the appellant first came in contact with the police and some four hours after the appellant arrived at the police station. There is still no evidence about what the appellant did or who he talked to between the arrival of the police at his home and the eventual statement.

[65] Nor do the contents of the DVD or the Crown's transcript of the interview provide much assistance. While the transcript would suggest that Detective Martin had not questioned the appellant about the relevant events before the appellant made the statement, the transcript does not clarify what contact the appellant may have had with other officers. Further, given what is known about the family dynamic, it is far from safe to assume that the appellant had not been "confronted with the accusation" that he killed his wife by members of his family before he gave [page379] the statement. I do not intend to engage in speculation. The point is that facts crucial to admissibility under the Edgar principle remain entirely unknown on this trial record. This ground of appeal cannot succeed.

IV

Dante Remo's Evidence

[66] The Crown called Dante Remo primarily to establish that he was having an affair with Thayalini. Although the defence had indicated at a pre-trial conference that it had no evidence upon which to advance a "third party suspect" defence, the Crown was understandably concerned that the jury might speculate about Remo's involvement in her death, given his relationship with Thayalini. The Crown led evidence from Remo placing him at home with his fiancée when the murder occurred.

[67] During cross-examination, counsel established that Remo had initially lied to the police because he was worried that they would think he was involved in the homicide because of his relationship with Thayalini. Defence counsel then continued with a series of questions that, as the trial judge put it, suggested to the jury that "you better take a look at Mr. Remo as a perpetrator".

[68] In response to Crown counsel's objection and after hearing submissions, the trial judge told the jury two things. First, she indicated that the cross-examination of Remo, particularly as it related to his lies to the police, was relevant to the jury's assessment of his credibility. Second, she told the jury that the cross-examination could not support a finding that Mr. Remo was "in any way responsible for or connected to the killing".

[69] I see no error in this instruction. It was important that the jury, when assessing Remo's credibility, have the full advantage of the cross-examination demonstrating that Remo had lied to the police. It was equally important that the jury not be implicitly invited by way of questions put on cross-examination to speculate in the absence of any evidence that Mr. Remo may have been involved in the murder. The trial judge's instructions achieved both goals.

[70] The trial judge repeated the instruction that there was no evidence that Mr. Remo was responsible for the killing during her final instructions to the jury. The appellant concedes that there was no evidentiary basis upon which Mr. Remo could be connected to the homicide. I agree with counsel's concession. Given the absence of any evidence connecting Remo to the homicide, I do not see how the trial judge's instruction could amount to error. The trial judge was attempting to avoid [page380] improper speculation about Mr. Remo's involvement in the murder and to ensure that the jury's verdict would be based only on the evidence.

[71] This ground of appeal fails.

V

Conclusion

[72] I would dismiss the appeal.

Appeal dismissed.

Notes

[^1]: Apart from the question of whether the statement had any probative value for the Crown, there were very real Canadian Charter of Rights and Freedoms problems with the admissibility of much, if not all, of the statement.

[^2]: Counsel initially thought, based on a misleading reference on the transcript of the translation, that this part of the statement was made at 10:08 a.m., less than an hour after the body was found. In oral argument, however, counsel advised the court of their misunderstanding and indicated that the relevant part of the statement was in fact made at about 4:40 p.m. on November 4.

[^3]: This translation differs from that filed by the Crown on appeal, but I think it is appropriate to use the translation that was before the trial judge.

[^4]: This appeal was heard almost four years after the verdict.

End of Document