COURT OF APPEAL FOR ONTARIO DATE: 20221122 DOCKET: C67958

MacPherson, Paciocco and Thorburn JJ.A.

BETWEEN

His Majesty the King Respondent

and

Kyle Sparks MacKinnon Appellant

Counsel: Anil K. Kapoor and Cameron Cotton-O’Brien, for the appellant Kyle Sparks MacKinnon Katie Doherty, for the respondent His Majesty the King

Heard: September 27, 2022

On appeal from the conviction entered on January 13, 2019, by Justice Ian MacDonnell of the Superior Court of Justice, sitting with a jury.

Thorburn J.A.:

OVERVIEW

[1] In the early morning hours of January 31, 2016, five unarmed men were shot. Quinn Taylor and David Eminess were killed. Stewart Douglas survived a shot in the head. Two passers-by were wounded.

[2] The Crown alleged that the appellant, Kyle Sparks MacKinnon, and his co-accused opened fire on Messrs. Taylor, Eminess and Douglas for no apparent reason.

[3] The central issue at trial was whether the appellant was one of the shooters.

[4] A jury convicted the appellant of the second-degree murder of Mr. Taylor and Mr. Eminess, and of wounding the two passers-by. He was acquitted of attempting to murder Mr. Douglas. The appellant’s half-brother and co-accused was acquitted on all charges.

[5] The appellant raises two grounds of appeal: first, he claims that the trial judge erred in admitting Mr. Taylor’s description of the shooter given to police just after he was shot, and second and in the alternative, the trial judge’s instructions to the jury as to how to treat the statement were flawed.

[6] For the reasons that follow, I would dismiss the appeal.

BACKGROUND

Evidence of the Shootings

[7] In the early morning hours of January 31, 2016, Messrs. Taylor, Eminess and Douglas were looking for an afterhours club and, as they could not find one, stopped to ask for directions. Mr. Douglas approached a group of nine men, one of whom was the appellant. Messrs. Taylor, Eminess and Douglas did not know any of these men.

[8] Mr. Douglas asked where the club was and was told the men did not know. Mr. Douglas asked again and was shot in the head. He fled south and collapsed.

[9] After Mr. Douglas was shot, a second man in the group (whom the Crown alleged was the appellant) took out a handgun and fired it. Mr. Eminess was shot in the back of the head and died on the sidewalk. Mr. Taylor was then shot five times and fled across Spadina Avenue where he collapsed in the alcove of a restaurant. He died at the hospital several hours later.

[10] After the shooting, the group of men fled. The entire exchange, from the initial interaction to flight, took seconds.

Casings Found at the Scene

[11] Several casings were found at the scene and were later subject to scientific examination. The .45 cartridges found near the restaurant were determined to be fired from a .45 Glock pistol that was recovered nearby, and other cartridges recovered from the area were fired from a .40 pistol. The latter pistol was never recovered. The casing locations and the directions from which shots were fired suggest that there were two shooters.

Evidence from Witnesses

[12] None of the witnesses at or near the scene was able to directly say that the appellant was a shooter.

[13] There was no dispute the appellant was at the scene. Defence counsel admitted that the appellant was present and that he is a black male, with short black hair, clean-shaven, with a thin build, and was wearing a long-sleeved shirt with a red and black pattern and sporting a long thick gold chain around his neck.

[14] Four witnesses said that as the shots rang out, they saw a black male with short hair wearing a long-sleeved red shirt or fitted sweater (another two said it was purple and two others said it was black). Two witnesses also said he wore a gold chain around his neck with a pendant. While some of the witnesses could not see the object held by this man, a witness testified to seeing a black object in his hand and two witnesses saw him pointing a gun.

Video Surveillance

[15] Video surveillance was gathered from places near the shootings and a compilation video was produced. The video shows nine males in the area just before the shootings, but it did not capture the shootings.

[16] The appellant did not dispute that he was one of the nine men depicted in the video or that he was the one wearing a long-sleeved red and black shirt and a long thick gold chain around his neck.

[17] The video depicts Messrs. Eminess, Taylor and Douglas passing the security camera south of the New Ho King restaurant at 3:15 a.m. (the timestamps for this one recording are approximately one hour ahead) and, at almost the same time, the appellant and two other men are seen walking a few feet behind them. Less than a minute later, Mr. Eminess is seen falling to the ground and Mr. Douglas is seen running south. At 3:16 a.m. the appellant and three other males are seen running south followed closely thereafter by four other men.

[18] A different footage shows that Mr. Taylor collapsed after being shot at 3:16:54 a.m.

Mr. Taylor’s Statement

[19] Officer Daniela Quinn arrived at the scene and was the first officer to tend to Mr. Taylor. Officer Quinn began to speak with Mr. Taylor at 3:24:27 a.m.

[20] Officer Quinn testified that Mr. Taylor was seriously injured as he had been shot five times, twice in the torso. He screamed, “Help me, help me, I’ve been shot” and “Don’t let me die.” Officer Quinn asked who shot him. Mr. Taylor responded, “I don’t know, I was shot several times.” Officer Quinn then got Mr. Taylor into a seated position and tried to bandage his chest wounds. She asked him again, “Who shot you?” and Mr. Taylor again replied that he didn’t know. Officer Quinn said that a few moments later, Mr. Taylor said the shooter was a person like him, “it’s a male, he’s five seven”. Officer Quinn said, “I don’t know what that means” and he replied, “[t]he skin colour”. Officer Quinn then testified that:

[Mr. Taylor] was mulatto, so it’s a light-skinned black person… and he said [the shooter] had a shaved head and he was wearing a red shirt and a gold chain. He kept saying the chain was very thick , was a gold chain. I think at that time right away I put the description of that male, as I’m trying to put the description in between [Mr. Taylor] screaming and yelling of me helping him and not to let me die… he just said that, “He was 5’7 and he was like me.” [Emphasis added.]

[21] The fire department came and put an oxygen mask on Mr. Taylor’s face so he could breathe, and they waited for the ambulance. Mr. Taylor was transported to hospital and died at 8:42 a.m.

The Trial Judge’s Ruling

[22] The trial judge held that Mr. Taylor’s statement was admissible under the spontaneous declaration exception to the rule against hearsay. A spontaneous declaration is admissible when a person is so emotionally overpowered by a contemporaneous event that the possibility that the statement was concocted or distorted can be disregarded. In the alternative, he admitted the statement in accordance with the principled approach to hearsay as one that is necessary and meets the high standard for substantive reliability.

[23] The trial judge gave the jury the following instruction in considering the statement:

You should be cautious when you determine how much or how little you will rely on what Mr. Taylor said in the conversation with Officer Quinn. It may be less reliable than other evidence that has been given. Mr. Taylor was not under oath or affirmation. He did not promise to tell the truth. He could not be cross-examined here like the other witnesses who testified before you. Do not consider his evidence by itself, of course, it is only part of the evidence in the case. Consider it along with any other evidence that may make it more reliable or less reliable. And to be clear, while I have permitted you to hear this evidence, it is up to you to decide how much weight to give to it.

THE APPELLANT’S POSITION

[24] The appellant claims that Mr. Taylor’s statement ought not to have been admitted as a spontaneous utterance or under the principled exception to the hearsay rule as there was insufficient evidence to support its admission for the truth of its contents.

[25] The appellant claims the statement was not sufficiently reliable as:

i. there was no information regarding the circumstances under which Mr. Taylor made his observations, ii. there are concerns about his state of mind given that he was in pain and had consumed alcohol, taken drugs, and suffered an unexpected traumatic event, iii. there is no way of knowing whether he made assumptions in recounting his observations, iv. his description of the shooter was that of a man six inches shorter than the appellant, and v. other witnesses at the scene gave differing descriptions and none said the appellant was the shooter. As such, the appellant argues there was no evidence upon which the trial judge could rely to substantially negate the possibility that Mr. Taylor was mistaken in his identification statement: R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 30.

[26] Moreover, the appellant claims the trial judge did not properly instruct the jury on the weight to be accorded to the statement, as the trial judge did not repeat the dangers of eyewitness identification when providing his specific instructions in respect of Mr. Taylor’s statement, nor did he note the lack of information about the circumstances under which Mr. Taylor made his identification.

DISCUSSION OF THE LEGAL PRINCIPLES AT PLAY

The Framework for the Admission of Hearsay Evidence

[27] Hearsay is an out-of-court statement tendered for the truth of its contents. In a jury trial, the trial judge decides whether the hearsay statement should be admitted into evidence (threshold reliability). If the hearsay statement is admitted, the jury then considers whether the hearsay statement is to be believed and if so, what weight, if any, should be attributed to it in the context of the entire evidentiary record (ultimate reliability): R. v. Khelawon, 2006 SCC 57, 2 S.C.R. 787, at paras. 3, 50.

[28] It is important to remember that in a jury trial, at the admission stage, the trial judge’s role is limited to deciding whether to admit the hearsay statement, not whether the statement should ultimately be relied on and what its probative value is: R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, at para. 41.

[29] In a criminal jury trial, it is “constitutionally imperative” that questions of ultimate reliability be left for the jury: Khelawon, at para. 50; Bradshaw, at para. 114. This is because, “[w]here the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.”: R. v. Smith, [1992] 2 S.C.R. 915, at p. 9.

[30] Hearsay evidence is presumptively inadmissible because it is difficult for the trier of fact to assess its truth when the circumstances under which it was made may not be clear, and the person who gave the statement is not available for cross-examination, cannot be observed by the trier of fact, and did not testify under oath when giving the statement: Bradshaw, at para. 20.

[31] However, courts have recognized that in some circumstances, hearsay evidence should be admitted at trial for the jury’s consideration.

[32] First, statements falling within traditional exceptions to the hearsay rule, such as spontaneous utterances, are presumptively admissible: R. v. Schneider, 2022 SCC 34, at para. 51; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 212; and R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 61. In “rare cases” however, evidence falling within a traditional exception may be excluded where the indicia of necessity and reliability are lacking in the particular case: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; Schneider, at para. 51.

[33] Second, even if hearsay evidence does not fall under a traditional exception, it may still be admitted under the “principled approach” provided that the statement is both necessary and sufficiently reliable such that it “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”: Khelawon, at para. 2; Bradshaw, at para. 24.

[34] The traditional hearsay exceptions and the principled approach are generally informed by the same reliability considerations. Save for certain exceptions with “unique doctrinal roots”, such as party admissions, the Supreme Court has long recognized that the traditional exceptions inherently embody a reliability component either because “many of the traditional dangers associated with hearsay are not present”, as in the case of statements made in former proceedings, or because “the statement provides circumstantial guarantees of reliability”, as in the case of spontaneous utterances, dying declarations and statements against interest: Starr, at para. 212; Khelawon, at para. 6. For discussion of party admissions exception, see Schneider, at para. 53; R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.), at para 37; and R. v. Evans, [1993] 3 S.C.R. 653, at p. 664.

[35] In Mapara, at para. 24, McLachlin C.J. specifically recognized that in the case of spontaneous utterances, the “surrounding context furnishes circumstantial indicators of reliability.”

[36] In R. v. Youvarajah, 2013 SCC 4, [2013] 2 S.C.R. 720, at para. 20, Karakatsanis J. further elaborated that the traditional exceptions were developed over time for “ statements carrying certain guarantees of inherent trustworthiness , often because of the circumstances in which they were made” such that it may be “safe” to admit these statements. Later in Bradshaw, at para. 22, Karakatsanis J. called the traditional exceptions the “types of hearsay statements that were considered necessary and reliable”.

[37] To be admissible, hearsay statements under both exceptions must be “trustworthy”. However, this does not require that reliability of the perception, memory, narration or sincerity of the declarant be established with absolute certainty since this would go to ultimate reliability. The trial judge must, however, be satisfied on a balance of probabilities that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at paras. 23, 30-32; R. v. Carroll, 2014 ONCA 2, 34 C.C.C. (3d) 252, at para. 111.

[38] The major difference between the two exceptions is that once the requirements of a traditional exception are established, the hearsay statement is presumed to be admissible, absent a “rare cases” exception: Starr, at para. 212. By contrast, in the case of a principled exception, there is no presumption of admissibility. Indeed, the starting presumption is that the hearsay statement is inadmissible, and the analysis of reliability and necessity must be conducted in full: Khelawon, at paras. 47-48; Bradshaw, at para. 23.

[39] Whether a hearsay statement ought to be admitted is a question of law judged on a correctness standard. However, factual findings that feed that determination are entitled to deference on appeal. “[A]bsent an error in principle, the trial judge’s determination of threshold reliability is entitled to deference”: R. v. Youvarajah, 2013 SCC 4, [2013] 2 S.C.R. 720, at para. 31; see also R. v. Young, 2021 ONCA 535, 407 C.C.C. (3d) 265, at para. 30.

The Traditional Hearsay Exception for Spontaneous Utterances

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

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

[42] Exact contemporaneity is not required, as spontaneity depends on the circumstances, but the statement and the event must be reasonably contemporaneous such that the event would still be dominating the mind of the declarant when the statement is made: R. v. Badger, 2021 SKCA 118, 468 D.L.R. (4th) 610, at para. 31, aff’d 2022 SCC 20, 468 D.L.R. (4th) 607; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 15, leave to appeal refused, [2017] S.C.C.A. No. 139; and Nurse, at paras. 80-81.

[43] The question is whether the event was so unusual or startling that it would “dominate the thoughts and expressions of the person making the utterance”, such that there is no real risk of concoction or distortion: Badger, at para. 31; see also, Camara, at para. 85.

[44] In some cases, a spontaneous utterance should not be admitted if there are “special features” that could give rise to an error by the declarant: Badger, at para. 31; see also, Andrews, at p. 301; R. v. Hall, 2018 MBCA 122, at paras. 41, 53-55. Courts have also recognized that, in “rare cases”, even traditional exceptions to hearsay – including spontaneous utterances – can be challenged on the basis that, in a particular case, the indicia of necessity and reliability are lacking Starr, at para. 214; Mapara, at para. 15; and Khelawon, at para. 42; see also, Nurse, at para. 92. Given the potential overlap of these inquiries and the fact that they are both directed at ensuring the reliability of a statement, the “special features” of a case are, in my view, best considered together with the analysis of whether the “rare case” exception applies. Stated otherwise, in rare cases, special features may render a statement considered under the traditional exception for spontaneous utterances unreliable and therefore inadmissible.

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

[46] Despite its well-established acceptance, there has been little guidance as to what constitutes a “rare case”. Andrews provides that “special features” are “circumstances of particular difficulty” beyond the ordinary fallibility of human recollection: at p. 301.

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

[48] However, “special features” or “rare case” exceptions should not include factors that may give rise to concerns about the declarant’s honesty or sincerity. Although the House of Lords in Andrews considered malice as a potential “special feature”, which might give rise to the possibility of concoction or distortion, this consideration has formed part of the determination of whether the statement is admissible as a spontaneous utterance wherein spontaneity and contemporaneity are guarantors of the statement’s reliability: Nurse, at para. 63; R. v. Clark (1983), 42 O.R. (2d) 609, leave to appeal to S.C.C. refused, [1983] S.C.C.A. No. 253.

[49] In other words, any reliability concern relating to truthfulness is inherently captured and addressed in the requirements of the spontaneous utterance exception and, in light of the principled approach jurisprudence, cannot form the basis for exclusion under the “rare case” exception. The “rare case” exception must extend beyond the reliability concerns inherently captured in the traditional hearsay exception to be unique to the case at hand: Mapara, at para.36; Nurse, at para. 92.

[50] Nor does the “rare case” exception include weaknesses that go to the ultimate weight of the evidence, which is for the jury to decide.

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

The Principled Exception for Admission of Hearsay Evidence

[52] If hearsay evidence does not fall under a traditional hearsay exception, such as spontaneous utterance, it may still be admitted as a principled exception if sufficient indicia of necessity and threshold reliability are established on a balance of probabilities: Bradshaw, at para. 23; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 33.

[53] Necessity is established, for instance, where the declarant is dead: Blackman, at para. 34; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 57, leave to appeal refused, [2012] S.C.C.A. No. 8.

[54] Threshold reliability can be established through:

i. adequate substitutes for testing the truth and accuracy of the statement (procedural reliability); ii. circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or iii. a combination of elements of both procedural and substantive reliability: Bradshaw, at paras. 27, 30 and 40; McMorris, at paras. 26-27. The trial judge must identify the specific hearsay dangers presented by the statement, consider how they can be overcome, and decide whether the hearsay is “sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Khelawon, at para. 49; Bradshaw, at para. 26.

[55] If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue; if the hearsay danger is memory, narration, or perception, accuracy will be the issue: Bradshaw, at para. 44. The trial judge must be able to rule out any plausible alternative explanations for the hearsay statement on a balance of probabilities: Bradshaw, at para. 49.

[56] The statement must be “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31, citing Khelawon, at para. 49.

[57] In Bradshaw, the Supreme Court addressed the issue of when corroborative evidence can be relied on by a trial judge in deciding whether to admit hearsay evidence under the principled exception. Justice Karakatsanis, for the majority, held that “[t]o determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement”: Bradshaw, at para. 30.

[58] The circumstances in which a hearsay statement was made may, on their own, enable the trial judge to rule out any plausible alternative explanations for the statement on a balance of probabilities, bearing in mind the specific hearsay dangers associated with the statement: see Bradshaw, at paras. 3, 44 and 47. In such cases, extrinsic evidence need not be considered to determine admissibility because substantive reliability has been established and the statement is admissible. Any other extrinsic evidence that tends to corroborate (or contradict) the hearsay statement, if admissible, will go to ultimate reliability, not threshold reliability. It is for the trier of fact to decide how much reliance is to be placed on the hearsay statement in the context of the entire evidence which may include evidence that supports or undermines the proffered truth in the hearsay statement: Khelawon, at para. 50.

[59] However, if substantive reliability is not met after examining the circumstances in which the statement was made, trial judges may turn to corroborative evidence to establish substantive reliability provided that the corroborative evidence is “trustworthy” and shows that “the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”: Bradshaw, at paras. 38, 44, and 50.

[60] In other words, while corroborative evidence may provide trial judges with additional evidentiary guarantees of the statement’s inherent trustworthiness, it is not a prerequisite and its absence does not, by itself, raise a concern about the substantive reliability of the statement. Another appellate court has drawn a similar conclusion: see Hall (MBCA), at paras. 79-85.

[61] There are strong policy reasons for limiting the use of corroborative evidence in this manner. For example, as noted by the court in Bradshaw, if a trial judge is entitled to consider any extrinsic evidence that corroborates any part of a hearsay statement when assessing its threshold reliability, the voir dire could become an unwieldy trial within a trial. There is also a risk that flawed inculpatory hearsay evidence could be admitted simply because there is strong evidence of the accused’s guilt: Bradshaw, at para. 42; R. v. Laure, 2018 YKCA 9, 47 C.R. (7th) 133, at para. 93, aff’d 2019 SCC 25, [2019] 2 S.C.R. 398.

[62] To summarize, the focus at the admissibility stage is on threshold, not ultimate reliability. The Starr/Mapara framework for determining the admissibility of hearsay evidence may be further developed as follows:

i. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The onus is on the party tendering the evidence to show that it meets the requirements of a traditional exception or the principled approach. ii. Evidence that falls under a traditional exception to the hearsay rule is presumptively admissible as traditional exceptions embody circumstantial guarantees of trustworthiness. (In the case of a spontaneous utterance exception, the inherent reliability stems from the requirement that the statement was made contemporaneously with a startling event that dominates the mind.) a. In “rare cases” however, evidence falling within an existing traditional exception may be excluded because there are “special features” such that the hearsay statement does not meet the requirements of the principled approach in the particular circumstances of the case. The onus rests on the party resisting admission. b. In the context of the spontaneous utterance exception, the basis for asserting a “rare cases” exception includes circumstances of gross intoxication, highly impaired vision, and exceptionally difficult viewing conditions, which are sufficiently grave that the trial judge cannot exclude the possibility of error or inaccuracy on a balance of probabilities. However, the “rare cases” exception does not include weaknesses that go to the ultimate reliability of the evidence or reliability concerns that are inherent in the traditional exception. iii. Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if sufficient indicia of necessity and threshold reliability are established on a voir dire on a balance of probabilities. This is established by satisfying the following criteria: a. Threshold reliability (or reliability for the purpose of admission into evidence only) may be established through procedural reliability, substantive reliability, or both. b. To establish procedural reliability, there must be adequate substitutes for testing the evidence and negating the hearsay dangers arising from a lack of oath, presence, and cross-examination. Procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement. c. To establish substantive reliability, the circumstances surrounding the statement itself must provide sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. This is a functional inquiry. Substantive reliability is concerned with whether there is a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy. Where hearsay evidence has sufficient features of substantive reliability, there is no need to consider any extrinsic evidence that corroborates or conflicts with the statement. Courts should be wary not to turn the principled approach into a “rigid pigeon-holing analysis”: Khelawon, at paras. 44-45. d. If substantive reliability is still lacking after examining the circumstances surrounding the statement, trial judges can rely on corroborative evidence to establish substantive reliability only if the corroborative evidence meets the criteria set out by the Supreme Court in Bradshaw. e. The process set out in Bradshaw is as follows: (i) identify the material aspects of the hearsay statement tendered for its truth, (ii) identify the hearsay dangers raised, (iii) consider alternative, even speculative, explanations for the statement, and (iv) determine whether the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Assessing the Adequacy of the Jury Instruction

[63] A jury instruction must be assessed using a contextual approach to determine whether there were deficiencies in the charge which may have led to a miscarriage of justice. The test is whether the instruction was adequate: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9, 39-40.

[64] No specific formula or wording is required: R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 48; R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 79.

ANALYSIS OF THE TRIAL JUDGE’S DECISION

The Admissibility of Mr. Taylor’s Hearsay Statement

[65] Mr. Taylor’s statement to Officer Quinn was sought to be introduced for the purpose of providing evidence that a person who matched many aspects of the description of the appellant was one of the shooters.

[66] In deciding whether to admit the statement, the trial judge was concerned with threshold, not ultimate reliability: he was determining whether the proposed hearsay evidence should be admitted for the jury to consider in deciding whether the Crown had met its burden of proof. The trial judge was not deciding what, if any, of the evidence he believed or would accept, as that was a matter for the jurors to decide.

The Spontaneous Utterance Exception

[67] The Crown took the position that Mr. Taylor’s statement to Officer Quinn was admissible under the spontaneous utterance exception. The Crown argued the statement was an instinctive reaction to the shooting and was reliable as it was made “in response to being attacked where there was no realistic concern about concoction or fabrication”: Nurse, at para. 87. Defence counsel challenged Mr. Taylor’s accuracy but not his truthfulness.

[68] The trial judge admitted the statement. He accepted that the statement was reliable and concluded that there were no special features that undermined the statement’s reliability. The statement was therefore admissible under the spontaneous utterance exception. In the alternative, he accepted the statement under the principled approach to hearsay as the requirements of necessity and threshold reliability were met on a balance of probabilities.

[69] For the reasons that follow, I agree that the statement was admissible under the traditional exception for spontaneous utterances.

[70] First, the fact that Mr. Taylor’s statement relates to the identification of the person who shot him does not eliminate the statement from potential admission under the spontaneous utterance exception: Badger, at paras. 35-36.

[71] Second, the trial judge noted that although Mr. Taylor’s description of the shooter was not provided immediately after he was shot, it was done within minutes without any intervening event. Thus, he concluded that the utterance was sufficiently spontaneous.

[72] Third, the trial judge addressed the circumstances under which the statement was made, and the reliability concern raised by the defence. He noted that the spontaneity of the statement and shock of the shooting rendered the possibility of Mr. Taylor concocting the description of his shooter “fanciful”. As such, it fit within the traditional exception to hearsay for spontaneous utterances. He concluded that:

With respect to accuracy, the fact that the description was provided within minutes of the shooting is significant. The only events that intervened between the shooting and the statements to Constable Quinn were Mr. Taylor's flight across Spadina Avenue and his collapse in the entranceway to the Sizzler Kebab restaurant. The possibility that in that brief interval he had misremembered the appearance of the shooter is remote. As with any description provided by any witness, there will always be the possibility of error but there is nothing in the record to suggest the presence of 'special features' of the kind referred to in Andrews [which considered the rare circumstances in which a spontaneous utterance would be inadmissible] that might undermine the reliability of the description. I acknowledge that the description is relied upon by the Crown as evidence identifying [the appellant] and that as such caution is called for in assessing its reliability. The statements do not carry with them, however, the added dangers associated with situations where a witness expresses an opinion that a defendant is the person involved in the material events.

[73] Similarly, it is clear from reading the trial judge’s reasons in the context of the record as a whole that he did not accept that the evidence regarding Mr. Taylor’s intoxication rose to a level of a special feature that could give rise to a real possibility of error in his perception of the events that transpired.

[74] During oral submissions, this issue was discussed at some length by the trial judge and defence counsel. When reviewing the appellant’s toxicology report, the trial judge expressly noted that the alcohol level according to the urine sample “wouldn’t even blow a warn on the roadside test”. Trial judges’ reasons should not be dissected into small pieces and examined in isolation: R. v. Morrissey (1995), 22 O.R. (3d) 514, 80 O.A.C. 161 (C.A.). On a fair reading of the reasons in the entirety of the record, it is evident that the trial judge rejected the appellant’s argument that Mr. Taylor’s intoxication constituted a special feature that warrants exclusion of the evidence. The trial judge correctly concluded that this was not one of those rare cases where a presumptively admissible statement under a traditional exception nevertheless lacks the indicia of necessity and threshold reliability required by the principled approach.

[75] Finally, this case is distinguishable from Alexander cited by the appellant on appeal. In Alexander, unlike this case, the trial judge had evidence about “the speed with which events unfolded, the darkness, the crowd, the recent altercation … the fact that the majority of the statements … were elicited by questioning” and most importantly, “his misidentification of [another assailant]” before concluding that there was a very real danger that the declarant erred in his identification of the accused.

[76] For these reasons, I see no error in the trial judge’s conclusion that (i) the statement was made in circumstances that were sufficiently spontaneous when Mr. Taylor’s “mind was dominated by the shock of the shooting and by his fear that he was dying”; (ii) this is not a “rare case” in which “special features”, such as gross intoxication, undermine the inherent reliability of the statement; and (iii) the statement should therefore be admitted to be considered by the jury, along with all the other admissible evidence.

A. The Principled Exception to Hearsay

[77] In the alternative, the Crown argued that, even if the court did not accept that Mr. Taylor’s statement to Officer Quinn was a spontaneous utterance, the statement should nonetheless be admitted pursuant to the principled exception to hearsay, as there were sufficient guarantees of trustworthiness, and it was therefore substantively reliable. Defence counsel disagreed, arguing that the statement did not meet threshold reliability.

[78] The trial judge examined the circumstances under which the statement was made and agreed with the Crown’s position. In so finding, he applied the principles outlined in Khelawon and Bradshaw to determine whether to admit the evidence pursuant to the principled exception to the hearsay rule.

[79] The necessity of this hearsay evidence was established because Mr. Taylor had died and was therefore no longer available to testify. As such, the admissibility of Mr. Taylor’s statement rested on whether threshold reliability was met. There was no dispute that procedural reliability was not engaged, so the determination turned on substantive reliability. The trial judge noted the standard to be applied and detailed the circumstances which lead him to conclude that the statement was substantively reliable and therefore admissible:

In my opinion, however, notwithstanding the inability to cross-examine Mr. Taylor, the circumstances in which the description was offered provide sufficient guarantees of trustworthiness to warrant leaving it for the jury to determine whether to make use of it .… Those circumstances include:

(i) the description was provided 8 to 9 minutes after Mr. Taylor was shot; (ii) in the interval between the shooting and the statement, there were no significant intervening events; (iii) at the time he spoke to Constable Quinn, Mr. Taylor’s mind was dominated by the shock of having been suddenly shot five times by a stranger; (iv) although Mr. Taylor did not have a settled expectation of death, he genuinely and for good reason was extremely fearful that his life was in immediate peril; (v) the person whom Mr. Taylor purported to describe was a stranger and thus he had no motive to fabricate any part of the description; (vi) there is nothing in the record to suggest the presence of ‘special features’ of the kind referred to in Andrews that might undermine the reliability of Mr. Taylor’s description; (vii) the description was a statement of physical features and clothing, not an opinion that either of the defendants was the shooter; (viii) the description was detailed; (ix) there was nothing in the questions asked by Constable Quinn that suggested any part of the description provided by Mr. Taylor; and (x) the description itself was not provided in response to a direct question asked by Constable Quinn. [Emphasis added.]

[80] The trial judge noted that “the only real hearsay danger in this case arises from the inability of the defence to cross-examine Mr. Taylor to test the accuracy of the description he provided.” Given the circumstances in which the description was made, he was nevertheless satisfied that there were sufficient guarantees of trustworthiness to admit the statement and leave it to the jury to assess what weight, if any, it should be given. The trial judge also noted during oral submissions that the concern about Mr. Taylor’s impairment did not affect his view of the trustworthiness of Mr. Taylor’s statement.

[81] Since he found the statement was sufficiently reliable to be admitted, he held that he did not need to consider the similarities in the descriptions provided by Mr. Taylor and the eyewitnesses:

I do not find it necessary to consider whether, post- Bradshaw, the similarities between the descriptions provided by other witnesses and the description provided by Mr. Taylor tend to confirm the reliability of his description. I am satisfied that in any event, the circumstances described above are sufficient to establish threshold reliability and to justify admission pursuant to the principled approach.

[82] I find no error in the trial judge’s conclusion. He correctly held that there were sufficient circumstantial indicia to establish substantive reliability and that the appellant’s concerns about the circumstances under which Mr. Taylor made his observations, including whether he was assuming that the man he described shot him and his ability to see clearly, go to the weight and ultimate reliability of the evidence, not threshold reliability for admissibility: Andrews, at pp. 300-301; Nurse, at para. 86; see also Badger, at paras. 35-36.

[83] The trial judge was not required to consider the corroborative evidence as he was satisfied that threshold reliability was met upon looking at the circumstances in which Mr. Taylor’s statement was made, Bradshaw, at paras. 30, 44 and 56; see also, Khelawon, at paras. 93-100.

[84] As noted by Moldaver J. (dissenting but not on this point) in Bradshaw, at para. 122, trial judges should be trusted to decide when “the probative value of certain corroborative evidence is tenuous and outweighed by its prejudicial effect in prolonging and complicating the proceedings … to ensure the trial proceedings are not derailed by the voir dire” (citations omitted).

[85] Furthermore, the concerns about accuracy raised by the appellant at the voir dire and on appeal are concerns about the absence of evidence about Mr. Taylor’s opportunity to observe. The appellant did not allege that there is anything in the circumstances surrounding Mr. Taylor’s statement that would spark concerns about the accuracy of his perception. Any alleged danger that Mr. Taylor may have misperceived who shot him is speculative. As this court has previously held, where there is no evidence of a motive to lie, motive “is in effect a neutral consideration” in considering threshold reliability: R. v. Czibulka, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152, at paras. 43-45; see also, Blackman, at paras. 39-43. As noted by Rosenberg J.A. in Czibulka, at para. 43:

There are three possible scenarios: First, the Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused.… Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story. … Or the case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In the last scenario, motive is in effect a neutral consideration. Because it is for the proponent of the hearsay evidence to show that it was made under circumstances of trustworthiness, if there are few other compelling circumstances of reliability the application to admit the hearsay statement will probably fail. If there are other indicia (and for example in Khan there were many others) the statement may or may not be admitted depending on the strength of those other factors on the reliability issue.

…[I]t is the role of the trial judge to determine threshold reliability by satisfying him or herself that notwithstanding the absence of the declarant for cross-examination purposes, the statement possesses sufficient elements of reliability that it should be passed on to be considered by the trier of fact. [Emphasis added, italics in original, citation removed.]

[86] The logic from Czibulka is applicable here and the trial judge cannot be said to have erred in concluding that substantive reliability was established on a balance of probabilities, considering other strong indicia of reliability that were borne out by the evidence, including the spontaneous, unprompted, and relatively detailed description provided by Mr. Taylor within minutes after he was shot. As the Supreme Court has recognized, spontaneous utterances, such as the one at bar, carry with them “circumstantial indicators of reliability”: Mapara, at para. 24; Youvarajah, at para. 20.

[87] Perfection is not demanded for admission. The jury was sufficiently equipped to deal with any residual accuracy concern in determining how much weight and reliance they would ultimately assign to Mr. Taylor’s ante mortem statement in the context of the entirety of the evidence, as there was evidence about the time, location and speed of the event from other sources and Officer Quinn was available to “provide significant detail about Mr. Taylor’s demeanour”.

[88] Lastly, even if corroborative evidence were considered (and I believe the trial judge was correct that it should not have been), the corroborative evidence confirms the material aspects of Mr. Taylor’s statement. The video surveillance shows that a man who matched the appellant’s description was in the vicinity at the time of the shooting and was the only one wearing a red shirt. Moreover, there were eight eyewitnesses to the events who testified at trial, and although due to the well-known frailties of identification evidence, not all descriptions were identical, several described the man they saw as a black man with short hair, wearing a red sweater and having a black object in his hand or pointing a gun: see Hay, at para. 40. The appellant is the only person in the video who matches that description. This corroborative evidence leaves accuracy as the only likely explanation for Mr. Taylor’s description of his shooter.

[89] In sum, I see no error in the trial judge’s conclusion that Mr. Taylor’s hearsay statement was necessary as Mr. Taylor had died, and sufficiently trustworthy to establish threshold reliability given the circumstances in which it was made. For these reasons, while trial judges may admit evidence that satisfies a traditional exception without being required to go on to consider compliance with the principled exception, in this case, even if the statement were not admissible as a traditional exception to the hearsay rule, I would conclude that the trial judge was correct that the statement was admissible pursuant to the principled approach to hearsay. As such, there was no need to advert to corroborative evidence.

The Adequacy of the Jury Instruction on Mr. Taylor’s Statement

[90] I further find that the trial judge’s jury instructions concerning Mr. Taylor’s statement were entirely appropriate.

[91] In his general instructions, the trial judge reminded the jury that it was their role, not his, to decide the facts.

[92] In his general instructions on eyewitness evidence, the trial judge specifically cautioned the jury on the possibility of “honest and convincing but mistaken eyewitness identification” and the “danger” that a witness may “fill in” perceived events to create a logical sequence of narrative. He asked the jury to consider if the witness was “able to make accurate and complete observations” and “ha[d] good opportunity to do so”.

[93] He told the jury to consider “whether there is any reason why a witness’ testimony, and in particular the description he or she gave, would not be reliable” and he outlined the danger that, even a witness who acted in good faith, might fill in details to create a logical sequence for what happened. He asked the jury to consider “the circumstances in which [the witness’] observations were made” and the condition the witness was in when making the statement.

[94] The trial judge reviewed the evidence relating to whether the appellant was one of the shooters, the number of shooters, the video evidence that included the appellant, the eyewitness evidence, and the statements of Mr. Taylor and the attempted murder victim, Mr. Douglas.

[95] In specifically addressing the appellant’s evidence, the trial judge explained the rule against hearsay and that he had allowed the jury to hear Officer Quinn’s evidence about Mr. Taylor’s statement.

[96] Furthermore, he drew the jury’s attention to the lack of certain procedural and substantive safeguards surrounding Mr. Taylor’s statement including that it was not under oath, that Mr. Taylor could not be cross-examined and that, at the time of making the statement, he had consumed alcohol and other drugs which might have adversely affected his mental faculties.

[97] He expressly asked the jury to be “cautious”, instructed them on the considerations to be taken into account in addressing the weight and ultimate reliability to be attributed to the statement, and noted that “it may be less reliable than other evidence that has been given”.

[98] The trial judge did not need to repeat his general instructions on how to approach both the reliability and credibility of a witness’ statement when reviewing Mr. Taylor’s statement as jurors were given clear instructions on the appropriate framework by which to assess eyewitness evidence, including that of Mr. Taylor.

[99] Lastly, there was no need to provide the same instruction in respect of Mr. Taylor’s hearsay statement to Officer Quinn as he provided for Mr. Douglas’ testimony. Mr. Douglas was shot in the head and suffered a multitude of intellectual and behavioural challenges in addition to being on various medications. He had a lengthy criminal record, suffered from schizophrenia and was living in the community under the supervision of the Ontario Review Board when he testified. The parties agreed that some of his evidence was untrue. As such, his circumstances were quite unlike those of Mr. Taylor.

[100] In sum, the trial judge adequately drew the jury’s attention to evidentiary concerns, to help them assess the reliability of Mr. Taylor’s statement.

CONCLUSION

[101] For the above reasons, I would dismiss the appeal.

Paciocco J.A. (concurring)

[102] I, too, would dismiss the appeal because I agree with my colleague’s conclusion that the trial judge did not err in admitting Mr. Taylor’s statement to Police Constable Quinn pursuant to the spontaneous exclamation exception. That is enough to resolve the appeal. There is therefore no need to consider whether the trial judge was correct in his “alternative” analysis in finding that Mr. Taylor’s statement would independently have been admissible under the principled hearsay exception, an issue on which I have reservations that need not be pursued.

[103] This court recognized in R. v. Nurse, 2019 ONCA 260, [2019] O.J. No. 1636, at para. 95, that where a traditional hearsay exception has been found to be satisfied, and the appellant has neither brought a categorical challenge to that exception nor met the “rare case” exception, the hearsay evidence is admissible, and an appeal may be dismissed without going on to consider whether the hearsay evidence would also have met the principled exception. That is this case.

[104] The underlying proposition that evidence that satisfies a traditional hearsay exception is admissible without consideration of the principled exception is sensible. Although indicia of reliability must be present to satisfy either a traditional exception or the principled exception, the inquiry into whether there are sufficient indicia of reliability differs. Where a traditional exception is met, necessity and reliability arguments are “exhausted” and need not be considered further, save in those “rare cases” where the party opposing admission demonstrates that there are particular reliability concerns that warrant a “rare exception” inquiry: R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at paras. 75-79. When a “rare case” exception is considered, the exploration of reliability concerns is of limited scope. It focuses on whether there are unique reliability concerns that extend beyond the reliability concerns inherently captured in the hearsay exception, and the burden is on the party seeking to avoid the application of the hearsay exception to establish that the evidence is not reliable enough to admit given these concerns: Nurse, at paras. 64, 92. In contrast, where the sufficiency of indicia of reliability are being examined under the principled exception, the onus is on the party seeking the admissibility of hearsay evidence to establish threshold reliability at large, which “is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 215 (emphasis omitted).

[105] Moreover, not all traditional exceptions have indicia of reliability that address all of the hearsay dangers. As my colleague points out, the party admissions exception satisfies neither necessity nor reliability concerns: R. v. Schneider, 2022 SCC 34, at para. 53. The business records and spontaneous exclamation exceptions do not have a necessity component. The reliability conditions of the spontaneous exclamation and dying declaration exceptions, beyond eliminating concern for memory problems, focus exclusively on whether the hearsay declarant could by lying. I could go on. As Charron J. recognized in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 65, “[s]ome of the traditional exceptions stand on a different footing [than the principled exception]”. It is therefore entirely possible for the same evidence to meet admissibility standards for a traditional exception but fail to satisfy the principled hearsay exception.

[106] Moreover, requiring evidence to meet the admissibility standards of the principled exception even where it meets the admissibility requirements of a traditional exception would complicate and extend hearsay admissibility voir dires, undermining the benefits identified in Starr, at paras. 202-207, in retaining the traditional exceptions.

[107] I therefore reject the premise of Mr. MacKinnon’s submission that to determine the admissibility of the hearsay evidence in this case the focus should be on the principled exception. Despite appeal counsel’s able arguments, I do not feel that it is necessary or prudent to address those arguments because they can make no difference to the outcome of the appeal.

[108] Finally, I need to express disagreement with my colleague’s analysis in paras. 85 and 86 of her decision that the absence of evidence about Mr. Taylor’s opportunity to observe is a neutral consideration in assessing the sufficiency of threshold reliability under the principled exception. Without the benefit of cross-examination, the absence of evidence of a declarant’s opportunity to observe leaves a trier of fact without information on whether or not the hearsay declarant may have misperceived the facts to which the hearsay statement relates: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32. The absence of information about the opportunity to observe is therefore not a neutral indica of reliability; it is a hearsay danger that indicia of reliability must overcome if the principled exception is to be met: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 26-27. The absence of information about the opportunity to observe is therefore a central concern at the threshold admissibility stage. In my view, there is nothing speculative in considering that there is no information pertaining to the hearsay declarant’s opportunity to observe, when deciding whether the indicia of reliability warrant admission.

[109] As I say, I need not consider whether there were sufficient indicia in this appeal to satisfy the principled exception. I would dismiss the appeal on the basis that Mr. Taylor’s hearsay statement was admissible as a spontaneous exclamation.