COURT FILE NO.: CR-23-10000201-0000 DATE: 20240104 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Responding Party – and – UMAR ZAMEER Defendant
COUNSEL: M. Cantlon and K. Simone, for the Crown/Responding Party N. Hasan and A. Heine, for the Defendant/Applicant
HEARD: November 9, 2023
MOLLOY J.
reasons for decision (Statements made by the Accused)
A. INTRODUCTION
[1] Umar Zameer is charged with first degree murder in relation to the death of DC Jeffrey Northrup on July 2, 2021. DC Northrup and several other police officers, working in plainclothes, were investigating a stabbing that had occurred in the underground parking below Toronto’s Nathan Phillips Square shortly before midnight on July 1, 2021. Mr. Zameer’s car was parked in that same lot while he, his wife, and two-year-old were visiting nearby festivities. When they returned to their car, the investigation of the stabbing was underway. The Crown’s position is that DC Northrup and DC Forbes approached Mr. Zameer as he was getting into the driver’s seat, identified themselves as police officers, and asked to speak with him. According to Crown witnesses, instead of cooperating with the police, Mr. Zameer got back into his car and attempted to flee. Two other officers were nearby in an unmarked van with rolled-up tinted windows. They pulled their van in front of Mr. Zameer’s car, blocking his way. Mr. Zameer reversed and manoeuvred his car to flee in a different direction. Even though DC Northrup was standing right in front of Mr. Zameer’s car waving at him to stop, Mr. Zameer ran him down. DC Northrup died from his injuries. Mr. Zameer was apprehended at the exit where there were cars ahead of his in a queue to pay and exit the lot. Because DC Northrup was a police officer acting in the line of duty, Mr. Zameer was charged with first degree murder.
[2] The defence position is that Mr. Zameer did not know that the people approaching him and blocking his way were police officers. He was aware of the stabbing that had occurred a short time earlier. He is expected to testify at trial and to say that he thought he and his family were under attack and that he acted in self defence. He is further expected to say that while he was in the process of trying to pull out of the parking spot, the two individuals who had approached him were hitting his car and yelling. One of them (DC Northrup) fell to the ground, and Mr. Zameer’s vehicle drove over him as it pulled forward.
[3] The defence seeks to tender in evidence three statements made by Mr. Zameer to the police – two made at the scene immediately upon apprehension, and the third at the police station 12 hours later.
[4] The Crown concedes the admissibility of the first two statements as spontaneous utterances, but takes the position they cannot be tendered through cross-examination of the Crown’s witnesses, but only as part of the defence case after Mr. Zameer himself testifies. The Crown disputes the admissibility of the third statement or the formal statement at the police station.
B. THE THREE STATEMENTS
The First Statement
[5] Approximately thirty seconds passed from the time Mr. Zameer’s vehicle ran over DC Northrup and the police removed Mr. Zameer from his car at gunpoint. DC Correa (who had been driving the unmarked police van) was the first officer to reach the driver’s side of Mr. Zameer’s car. He handcuffed Mr. Zameer with his hands behind his back, while he was lying facedown on the ground. DC Pais (the passenger in the unmarked police van) first went to the passenger side and dealt with Mr. Zameer’s wife. He then went to the driver’s side of the car to assist DC Correa in moving Mr. Zameer to the other side of the car. By then he was wearing a vest with the word “POLICE” across the front. He testified at the preliminary hearing that he ordered Mr. Zameer to stand up, and that when he did not immediately comply, he punched him in the face “to get his attention.” He could not recall if Mr. Zameer was lying facedown at that point, or if he had been brought up to his knees. [1]
[6] DC Pais testified that he then pointed to the front of Mr. Zameer’s vehicle and said, “There’s flesh and blood on the car. You just ran over a cop.” He said that Mr. Zameer’s immediate utterance was, “We didn’t know you were cops.” [2] He also said that they had heard about the earlier stabbing in the area and they were scared. [3]
The Second Statement
[7] DC Pais told Mr. Zameer that he was under arrest for dangerous operation of a motor vehicle and advised him of his rights to counsel. As he was doing this, another officer, DC D’Souza, had arrived on scene and took over from DC Pais. DC D’Souza cautioned Mr. Zameer and then asked him what had happened. Mr. Zameer then made the following statements:
- He and his wife had heard about the stabbing and had seen a lot of police cars in the area;
- They decided to leave, went to the parking garage, and got in their car;
- A man and woman arrived and started hitting his window and door. He also saw a black van;
- He did not see either of these people with a police badge;
- He saw the man reach into his pocket, but did not see what he had in his hand;
- He had no idea they were police;
- They were not wearing a police vest (referring to what DC D’Souza and other officers were wearing at the time of his arrest);
- He was scared and trying to get away; and
- If he had known they were police he would not have gone. [4]
The Third Statement
[8] Mr. Zameer was placed in a transport wagon and taken to 52 Division, where he was paraded. At that time, he was told that he was charged with dangerous operation of a motor vehicle. He was placed in a cell at approximately 2:00 a.m. At some point after that, he spoke to duty counsel.
[9] At 4:05 a.m., two detectives spoke to Mr. Zameer in his cell. Det. Browne told Mr. Zameer that the person he hit with his car had died from his injuries and that there was a “strong likelihood” of an elevated charge against him, referring specifically to dangerous operation of a motor vehicle causing death. He also advised him of the possibility that he would be charged with first degree murder because the person killed was a police officer who was “murdered in the line of duty.” Det. Browne told Mr. Zameer that the police would like to speak to him and get his side of the story but before doing that they would be arranging for him to have another discussion with duty counsel to get advice in light of the increased jeopardy.
[10] Following that discussion with the detectives, Mr. Zameer had a further telephone call with duty counsel.
[11] Shortly after noon, Mr. Zameer was brought to an interview room to be questioned by Det. Sgt. Allington and Det. Grieve. The interview started at 12:20 p.m. At the outset, Mr. Zameer confirmed that he had spoken to duty counsel twice and had also conferred with a lawyer named Aswani Datt. Det. Sgt. Allington then told Mr. Zameer, for the first time, that he was being charged with first degree murder and advised him of his right to remain silent. Det. Sgt. Allington explained the different levels of homicide and the difference between first and second degree murder, including that the murder of a police officer in the line of duty was automatically a first degree murder. He told Mr. Zameer that this was the charge against him and that the penalty upon conviction is a life sentence with no chance of parole for 25 years. To this, Mr. Zameer immediately responded, “I didn’t know he was a police officer.”
[12] From the outset of the interview, Mr. Zameer stated that he was choosing to remain silent on the advice of his lawyer. The officers continued to ask questions. Mr. Zameer invoked his right to silence 15 times in the course of the 21-minute interview. However, at times he also volunteered some information, including the following:
- The person he struck was not wearing a police vest;
- A van without police tags blocked his car; and
- He and his wife thought they were going to be killed by the people who approached them, which he referred to as “that whole mob” and “the whole gang.”
C. APPLICABLE LEGAL PRINCIPLES
[13] The law with respect to prior consistent statements is both complex and confusing. The main difficulty is the application of the many exceptions to the rule, and the manner in which this rule intersects with the rule excluding hearsay evidence and its exceptions. Often, decisions in this area do not distinguish between the two and frequently misidentify the applicable exception that permits admissibility. The most frequent confusion appears to be between the concepts of res gestae and spontaneous utterances. Accordingly, it is important to go back to first principles. For the most part, prior consistent statements of any witness are treated in the same manner as prior consistent statements of an accused person, but there are some differences. Since this application relates to prior consistent statements of the accused, I will concentrate on the law applicable to that category of evidence.
The Rule Against Hearsay and Its Applicable Exceptions
[14] At the outset, it is important to clarify which rules of evidence are applicable in which situations. Out-of-court statements of an accused (or any other witness) would not normally be admitted at trial through another witness because that would offend the rule against hearsay. The danger of hearsay evidence is that it is not under oath, is not subject to a charge of perjury, and cannot be tested by cross-examination. In addition, the trier of fact does not usually have the opportunity of observing the demeanour of the witness when making the statement. Thus, asking a police officer to testify as to what the accused said to him, if seeking to adduce that evidence for its truth, is a breach of the rule excluding hearsay evidence.
[15] For that evidence to be admissible, it would have to fall within one of the exceptions to the hearsay rule. If the statement made by the accused is inculpatory, it is admissible under the exception for confessions, or admissions against interest. The rationale underlying that rule is that a person is unlikely to make statements against his interest unless they are true. The same rationale does not apply to exculpatory statements made by an accused. Such statements do not fall within the exception and are considered hearsay when adduced through another witness.
[16] Thus, if the evidence of the accused’s exculpatory statement is to be admissible for its truth through a police witness, it must fall within some other exception to the hearsay rule. This may arise when the evidence falls within one of the traditional exceptions to the hearsay rule (e.g. res gestae) or when it is determined to be admissible through the principled approach developed in cases such as R. v. Khan and R. v. Khelawon by establishing the criteria of necessity and reliability. [5] Given the usual situation that an accused person is present at trial and capable of testifying, it will be rare for the necessity requirement to be met in order to justify the admissibility of hearsay about the accused’s out-of-court statements. However, res gestae is frequently invoked as a basis for introducing such statements through other witnesses, as indeed is argued here.
[17] Another frequently invoked exception to the hearsay rule is that a statement is being introduced as “part of the narrative.” The defence raised that exception in this case during oral submissions. For present purposes, I note only that statements that would otherwise be hearsay but which are admitted as part of the narrative are not admissible for their truth. They are admitted merely to provide context. I will deal further with this issue below in relation to the admissibility of the specific statements in this case.
The Rule Against Prior Consistent Statements and Its Exceptions
[18] Quite apart from the hearsay exclusionary rule, there is a separate evidentiary rule prohibiting the admissibility of prior consistent statements made by a witness. That rule applies to anyone giving evidence about a prior consistent statement, including the witness who made the statement and including when that witness is the accused.
[19] As a general rule, witnesses are not permitted to give evidence that on a prior occasion they made a statement consistent with the evidence they have given in court. The reason for the exclusion of such evidence is that it has no probative value and has the potential to improperly influence the trier of fact. Evidence of prior consistent statements is sometimes referred to as “self-serving” or “oath-helping.”
[20] As is the case with most exclusionary rules of evidence, the rule against the admissibility of prior consistent statements is subject to exceptions. In R. v. Edgar, [6] the Court of Appeal for Ontario referred to four such exceptions applicable to prior consistent statements of an accused person, while noting that this list is not exhaustive. The four exceptions referred to are:
- If it is alleged that testimony given at trial is a recent fabrication, or was fabricated in response to something that happened in the past, evidence that the witness said the same thing earlier, or before the event alleged to have triggered it, is admissible to rebut that suggestion.
- Mixed statements that are partly inculpatory and partly exculpatory may be introduced, even though the exculpatory statements might otherwise be considered to be prior consistent statements. The inculpatory statement would always be admissible under the hearsay exception for confessions or admissions against interest. However, as a matter of fairness to the accused, the Crown is required to introduce the entire statement, not merely the portions helpful to the Crown’s case.
- A prior statement may be admitted as part of the res gestae where the statement itself forms part of the incident that gives rise to the charge. This is also an exception to the hearsay rule, and operates notwithstanding that the statements might be consistent with the evidence subsequently given by a witness at trial.
- Statements made by an accused at the time of the offence may be admissible to show the state of mind of the accused at the time the offence was committed. [7]
[21] Of these four exceptions, the first two do not arise in this case. In my view, res gestae does not arise either, for reasons I will develop further below. The Court in Edgar created a new exception to the rule excluding prior consistent statements, which is related in some ways to other recognized exceptions, and which does apply to the circumstances of this case.
[22] In his 2013 article “Perils and Potential of Prior Consistent Statements: Let’s Get It Right,” Justice Paciocco, writing extra-judicially, analyzes the rule against prior consistent statements and the complexity of the various exceptions to that rule. [8] He notes that to understand the exceptions, it is important to consider the dangers that the exclusionary rule seeks to avoid and how the exceptions avoid those dangers. He also notes that the rule against hearsay and the rule against prior consistent statements can be seen as working in tandem to control the admission of prior consistent statements, but that they should be seen as analytically separate. [9] Prof. Paciocco (as he then was) notes that the most common explanation for the exclusion of prior consistent statements is that they lack probative value, citing two oft-quoted jurists on that point: Twaddle J.A. who wrote that “consistency is a quality just as agreeable to lies as to the truth,” and Feldman J.A. who held that “a concocted statement, repeated on more than one occasion, remains concocted.” [10]
[23] There is a danger that the trier of fact may not appreciate this lack of relevance and treat a prior consistent statement as either supportive of credibility or corroborative of his or her evidence. Prof. Paciocco points out that both are prohibited lines of reasoning. Even if the prior consistent statement becomes part of the evidence for other reasons, these two prohibitions still apply. The fact that the witness said the same thing on another occasion cannot logically be considered to be corroborative. In other words, “corroboration requires support from an independent source”. [11]
[24] Further, Prof. Paciocco refers to the “prohibited inference” that a prior consistent statement supports the credibility of the evidence given by the witness at trial, citing the Supreme Court of Canada decision in R. v. Stirling. [12] In that case, a prior consistent statement was held to be properly admitted at trial to rebut a suggestion of fabrication, but not otherwise admissible for its truth. Defence counsel put to Mr. Harding (the Crown’s main witness) that he had fabricated his testimony about the accused being the driver of a vehicle to bolster his own civil claim for damages or in exchange for the charges against Mr. Harding be dropped. The trial judge admitted evidence of a prior statement by Mr. Harding identifying Mr. Stirling as the driver prior to either of the two events suggested to have motivated his evidence at trial. Although the Supreme Court of Canada held that the evidence was admissible for the purpose of rebutting those suggestions, the Court made it clear that the evidence was admissible only for this limited purpose, and not for the truth of the statement made. In particular, the prior consistent statement could not be used to support the credibility of the evidence given in court, but could be used to rebut two of the motivations suggested for having fabricated the evidence. Bastarache J. held:
However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313. This case illustrates the importance of this point. The fact that Mr. Harding reported that the appellant was driving on the night of the crash before he launched the civil suit or had charges against him dropped does not in any way confirm that that evidence is not fabricated. All it tells us is that it wasn’t fabricated as a result of the civil suit or the dropping of the criminal charges. There thus remains the very real possibility that the evidence was fabricated immediately after the accident when, as the trial judge found, “any reasonable person would recognize there was huge liability facing the driver” (Ruling on voir dire, June 21, 2005, at para. 24). The reality is that even when Mr. Harding made his very first comments about who was driving when the accident occurred, he already had a visible motive to fabricate — to avoid the clear consequences which faced the driver of the vehicle — and this potential motive is not in any way rebutted by the consistency of his story. It was therefore necessary for the trial judge to avoid using Mr. Harding’s prior statements for the truth of their contents. [13]
The “Edgar” Exception to Prior Consistent Statements Exclusion
[25] In Edgar, the Court of Appeal for Ontario revisited the long-standing rule against admitting prior consistent statements and reconsidered the legitimacy of the previously accepted rationale that such statements would never have probative value. Referring to a body of English jurisprudence, the Court concluded that there is some evidentiary value to exculpatory statements made by a person upon being confronted with an accusation, citing with approval the English Court of Appeal in R. v. McCarthy, as follows:
One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime. If he has been told, as the appellant was told, that he was suspected of having committed a particular crime at a particular time and place and he says at once, "That cannot be right, because I was elsewhere," and gives details of where he was, that is something which the jury can take into account. [14]
[26] Sharpe J.A. also referred in Edgar to a number of Canadian authorities in which an accused’s earlier statement was admitted in circumstances where the accused had testified, pointing out that the rationale for excluding such evidence was substantially weakened if the accused testified and could be cross-examined both on his testimony at trial and his previous statement.
[27] Ultimately, Sharpe J.A. concluded that it was time to abandon “the ‘myth’ that exculpatory statements made upon arrest are inadmissible except to the extent they bear upon state of mind or rebut an allegation of recent fabrication.” [15] Instead, an accused’s “spontaneous out-of-court statements made upon arrest or when first confronted with an accusation” would be admissible at trial “as evidence of the reaction of the accused to the accusation and as proof of consistency….” [16] However, this exception would only apply if the accused took the stand, thereby exposing himself or herself to cross-examination. The Court contemplated that, as a practical matter, the accused would testify first and then call or recall the officer who took the initial statement to confirm the accused’s evidence as to the content of the statement. In those circumstances, the evidence would be admitted as “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.” [17]
[28] The decision in Edgar is very clear that the accused must first testify before he can elicit evidence with respect to the prior consistent statement. This applies even where there is an undertaking by counsel to call the accused as a witness. The Court in Edgar reasoned that such an undertaking cannot be enforced as it is always the choice of the accused whether or not to testify, and the accused is free to change his mind right up to the point of actually taking the stand. [18] In my view, the requirement imposed in Edgar that the accused must first testify before a prior consistent statement is admissible, is an integral component of this exception. The Court’s reasoning was that the accused being subject to cross-examination weakens the traditional rationale for excluding such statements. This is a pivotal component of the balancing exercise in weighing the probative value of the evidence against its potential prejudicial impact.
[29] That said, if the evidence is admissible through some other exception, it is not necessary to comply with this requirement. The Court left this option open, stating that the statement of the accused under the Edgar exception is “not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence)….” [19]
[30] It must be noted that the rule developed in Edgar is not an exception to the inadmissibility of hearsay evidence. Rather, it is an exception to the rule relating to prior consistent statements. Evidence admitted from third parties pursuant to the Edgar rule does not become admissible for its truth, but does become admissible for the reaction of the accused upon hearing the accusation against him. This is relevant to the credibility of the accused and as circumstantial evidence that can be taken into account in determining his innocence. Further, it cannot be taken as corroboration of the evidence given by the accused at trial, nor is the mere fact that the prior statement is consistent with the evidence at trial a permissible inference. It is admissible only to show the spontaneous reaction of the accused upon being arrested or accused of an offence before there was an opportunity to invent an explanation. [20]
Res Gestae, Excited Utterances, and Spontaneous Statements
[31] There has been much blurring in the case law between words spoken as part of the res gestae (and therefore admissible as an exception to the hearsay rule) and words regarded as “excited utterances” or “spontaneous utterances” close in time to the event giving rise to the charge. In fact, true res gestae is a much more limited rule. The confusion arises because the statements that constitute res gestae are typically made spontaneously or in a state of excitement.
[32] In R. v. Liard, Laskin J.A. defined res gestae as follows:
Literally translated, res gestae means “things done”. It refers to the facts surrounding or accompanying a transaction. Statements made naturally and spontaneously, and without deliberation, during the course of an event may form part of the res gestae. [21]
[33] Statements uttered as part of the res gestae are admissible for their truth. Examples include the words spoken by a person while stabbing another person, whether those words be inculpatory (showing an intent to kill) or exculpatory (suggesting self-defence). In R. v. Sylvain, the Alberta Court of Appeal held that the trial judge correctly admitted into evidence a tape recording of the complainant’s call to 911, which was made at the time she was being sexually assaulted. Further, the Court found that because the 911 call was admissible under the res gestae exception, it could be considered for its truth, as well as being relevant to the time and place the assault occurred, whether the complainant was consenting, and her emotional and physical state at the time. [22]
[34] Many leading scholars have commented on the quagmire surrounding prior consistent statements and res gestae. I will not purport to solve those problems here. However, in my view Edgar fundamentally changed the law. Decisions prior to Edgar often mistakenly refer to spontaneous exculpatory statements made after the event as being res gestae, perhaps to justify their admission into evidence for the same reasons that the Court in Edgar did. However, care must be taken in determining whether such statements are truly res gestae and therefore admissible for their truth, or whether the limits described in Edgar are still applicable.
[35] An interesting illustration of this distinction arose in R. v. Hillis, [23] a 2016 decision of Pomerance J. Mr. Hillis was charged with second degree murder and aggravated assault after stabbing another man during a fight and injuring a second person. Mr. Hillis had made offensive remarks about a woman at a party and was physically attacked by the male deceased and another woman who was at the party. The accused admitted to causing the death and injury, but claimed he had acted in self-defence. The defence sought to introduce four sets of statements made by Mr. Hillis, arguing that all four were admissible for their truth as res gestae.
[36] The first set of statements were made by the accused shortly after stabbing the deceased and were utterances made in a high-pitched voice, stating “I didn’t mean it”; “call an ambulance”, “call the police” and “I’m sorry, I didn’t mean it”. Pomerance J. held that there was a “strong temporal connection” between the stabbing and the utterances, that the accused was reacting “emotionally and spontaneously” and that these statements could properly be considered as part of the res gestae. [24]
[37] A 911 call was placed at 4:13 a.m. and the first police officers arrived at 4:16 a.m. When they entered, they saw Mr. Hillis with his hands pressed to the victim’s neck in an apparent attempt to stop the bleeding, while yelling “come on man”. This second statement was also found to be part of the res gestae as the accused appeared to be attempting resuscitation and the words “come on man” could be seen as declarations accompanying and explaining relevant acts.” [25]
[38] Two other officers arrived at 4:20 a.m., one of whom heard Mr. Hillis utter an apparently spontaneous statement: “He attacked me. I was defending myself.” He was then arrested at 4:34 a.m. and made a fourth statement in answer to a question from the officer escorting him to the police wagon for transport, again stating, “he attacked me. I was defending myself.” [26] Pomerance J. held that these last two statements were different in nature and did not fall within the res gestae exception. They were, however, found to qualify under the Edgar exception if the accused chose to testify at trial. Pomerance J. held:
The third and fourth sets of statements analyze differently. The statements made by the accused to the police when first being monitored, and after being arrested, fall outside of the res gestae exception. By the time these statements were made, the accused seemed to have recovered his bearings. The stress of the event was not operating with the same immediacy. Not a great deal of time had passed. But, by this time, the accused knew that the police were at the scene, and very likely knew that Mr. Jubenville was dead. He would have appreciated the predicament that he found himself in and the benefit of making a self-serving statement. The initial statement made to Appleyard was spontaneous in the sense that it was not a response to a police question. It was spontaneous in that it was the first conscious response upon being confronted by police. For that reason, it qualifies for admission under Edgar. It was not, however, spontaneous in the sense that it was a part of the actual event. The link had, by that point, been severed. The same holds true for the fourth statement, made by the accused after his arrest, in response to a police query. These statements, admissible pursuant to the Edgar exception, are not admissible as res gestae. [27]
[39] Against this backdrop, I now turn to a consideration of the statements the defence seeks to admit in this case.
D. POSITION OF THE PARTIES
[40] The Crown concedes that the reasoning in Edgar applies to the first two statements and that the proper procedure is for the accused to testify, and only after that to call evidence from the two police officers to whom he made those statements. The Crown does not accept that the third statement falls into the exclusionary rule created in Edgar or any other exclusionary rule. The defence relies upon the Edgar exception for the admissibility of all three statements, arguing that the third statement was a continuation and amplification of the earlier two statements. Alternatively, the defence submits that the third statement should be admitted under the res gestae exception.
[41] In oral argument, defence counsel requested that he be permitted to elicit the evidence of Mr. Zameer’s exculpatory statements through cross-examination of the officers when called to testify by the Crown, rather than having to recall them as part of the defence case. He gave three reasons why this should be permitted. First, it is in the interests of trial efficiency to put this evidence in through the police officers, who will already be testifying as part of the Crown’s case, rather than having to call those officers a second time as part of the defence case. Second, the statements should go in as part of the narrative. It would be unnatural to suggest that the apprehension and arrest were met with total silence, when in fact Mr. Zameer’s wife was screaming and crying and Mr. Zameer provided his explanation for what happened as soon as he was accused. The defence submits that not introducing these statements at the outset would give the jury a skewed impression of the reactions of Mr. Zameer and his wife. Third, he argues that the strictures of Edgar do not apply where the evidence is admissible in any event through a different exception, such as res gestae.
E. ANALYSIS
The Two Statements Made at the Time of Arrest are Admissible Under Edgar
[42] There is no dispute that the two statements made by Mr. Zameer at the scene after being removed from his car are properly treated as one continuous statement. This started with the statement made to DC Pais, and when DC Pais was called away, DC D’Souza (who was standing beside him) stepped in to replace him and continued advising Mr. Zameer of his rights and noting the statements he made. For purposes of determining admissibility, these two statements can be considered as one.
[43] It is also clear that these statements meet the test established in Edgar, as indeed is conceded by the Crown. The statements were made spontaneously at the time Mr. Zameer was removed from his vehicle and arrested. This was within approximately 30 seconds after he drove his car over DC Northrup. He had almost no time to react or to fabricate a response prior to making these exculpatory statements. Both statements meet the requirements of Edgar, but are only admissible under this exception if the accused testifies.
[44] I recognize, as suggested by defence counsel, that it would be more efficient to deal with the evidence of the police officers about these statements when they testify in chief. However, trial efficiency is not a reason to admit evidence that is not otherwise admissible. The Court of Appeal for Ontario was clear in Edgar that even in the face of an undertaking that an accused will testify, his hearsay explanations for his actions cannot be introduced through others prior to the accused testifying himself and subjecting himself to cross-examination.
Admissibility of the First Two Statements as Res Gestae or Narrative
[45] I agree with the defence submission that where there is an available exception to the hearsay rule, there is no impediment to introducing the prior statements made by Mr. Zameer through a witness other than Mr. Zameer. It would, for example, be permissible for the defence to put them in through cross-examination of the police officers at the scene. However, I do not agree that there is any hearsay exception that applies to the proposed evidence.
[46] The two proposed hearsay exceptions are that the words spoken to the police should be admitted as res gestae or, alternatively, as part of the narrative.
[47] I reject the proposition that any of the statements by Mr. Zameer are necessary for purposes of the narrative. There is nothing about the statements made after the alleged offence had occurred that make it necessary to introduce them for context or to make other evidence comprehensible. Defence counsel argued that without such statements, the jury would have a skewed impression of how the arrest unfolded and make it appear that it happened in silence. I disagree. In order to reach its ultimate conclusion, the jury does not need to know anything about the circumstances of the arrest, other than that it happened. If the exculpatory statements were introduced at this point as part of the narrative, the jury would then have to be instructed about the limited use that could be made of such evidence, including that they are not admissible for their truth. The evidence has no other useful purpose. Therefore, there is no point in eliciting it under this exception. Indeed, introducing them at the outset would raise one of the same dangers that the rule against prior consistent statements was intended to avoid: that the accused would have the opportunity to put his evidence before the jury without it being under oath or subject to cross-examination. If the evidence was otherwise necessary, it could be admitted as part of the narrative, but only with a strong limiting instruction that it could not be accepted for its truth. [28] In any event, defence counsel has indicated that he wishes to provide an opening address to the jury immediately following the Crown’s opening, to which I have acceded. He therefore has an opportunity to advise the jury of what to expect in the evidence to follow and to provide them with context, all of course subject to the usual instruction to the jury that nothing the lawyers say can be considered as evidence.
[48] In my view, these statements are also not admissible as part of the res gestae. They were not uttered as part of the event itself as it was unfolding, but rather after-the-fact in response to an accusation and questioning by police. I accept that the statements were made in circumstances of high emotion, and perhaps shock. Mr. Zameer was never left unattended before making these statements and he had very little time to concoct a story. Given these circumstances and the fact that the statements were made so close to the event, they qualify as spontaneous utterances under the Edgar exception. Indeed, the statements are exactly the types of utterances that the Edgar exception was designed to address. However, that does not make them part of the res gestae.
[49] The defence relies on the decision of Douglas J. in R. v. Tavares [29] as supporting their position that the statements made by Mr. Zameer at the scene are properly characterized as res gestae and therefore admissible for their truth, in addition to being admissible under the Edgar exception. In that case, the accused was standing in a parking lot behind a bar when he was grabbed by an OPP officer and thrown to the ground. While he was pinned to the ground, a second officer nudged a bag under a nearby car and yelled “Gun!” The first officer then arrested Mr. Tavares, who immediately told the officers the gun was not his. He testified that he repeated this two or three times at the scene (“the arrest statements”). He was then put in a cruiser and, after a 10-minute wait, was transported to the police station. During that 5-to-10-minute drive, he again repeated three or four times that the gun was not his (“the cruiser statements”). Then, upon arriving at the detachment, he again repeated numerous times that the gun was not his (“the detachment statements”). The defence sought to admit all three sets of statements as res gestae for their truth, and also under the Edgar exception as “evidence of the reaction, demeanour and emotional state of the Defendant and as proof of consistency....” [30]
[50] Douglas J. noted that the parties agreed on the applicable legal principles, which he stated were as follows:
The courts have identified two situations in which the res gestae doctrine may be invoked: first, declarations accompanying and explaining relevant acts, and second, spontaneous exclamations.
To qualify for admission under the first category the words must be so inter-related to a fact in issue that they become part of the fact itself. The words must introduce the fact in issue and explain its nature or form in connection with it in one continuous transaction.
To qualify for admission under the second category the words must be the result of a startling occurrence or excitement-provoking event. The words need not be spoken strictly contemporaneously with the occurrence; however, the stress or pressure from the event must be ongoing at the time the words were spoken and the statement must be made before there has been time to contrive or misrepresent. [31]
[51] The Crown conceded that the arrest statements were properly characterized as res gestae and admissible for their truth and also conceded that the statements in the cruiser and at the detachments were admissible under the Edgar exception (provided the accused testified), but not as res gestae. Douglas J. agreed with the Crown on both points. With respect to the finding that the arrest statement constituted res gestae and therefore admissible for its truth, he held:
The Crown concedes that the arrest statements fall within the definition of res gestae. I agree with this assessment as the evidence supports the conclusion that virtually immediately upon a gun being located nearby the Defendant proclaimed it was not his. The immediacy of the utterance creates a temporal link between the words spoken and the events then unfolding, and it reduces the possibility of concoction. Therefore, the application is granted in respect of the arrest statements as res gestae …. [32]
[52] With respect to the statements in the cruiser and at the detachment, Douglas J. held that the accused had been formally arrested, handcuffed, given his rights, cautioned, and left for 10 minutes in the cruiser to sit and contemplate his situation, all of which served to sever the temporal and logical connection between the arrest statements and the cruiser and detachment statements. He therefore found this was not one continuous series of statements and that the cruiser and detachment statements were not part of the res gestae. However, he found they were admissible pursuant to Edgar, again as conceded by the Crown, but without any analysis of how the Edgar criteria were met.
[53] Under the principles of judicial comity and stare decisis, I am bound by clear authority from other judges of this Court. Alternatively, I may decline to follow a decision of this Court where I find that it: (1) is inconsistent with binding appellate authority; (2) was reached per incuriam (through carelessness or by inadvertence); or (3) was not fully considered. [33] These exceptions apply here. In my view, the decision in Tavares is inconsistent with the Court of Appeal for Ontario’s decision in Edgar, which is binding on me. If Douglas J. is correct that an excited utterance spoken at or close to an event is admissible for its truth under the res gestae exception, there would be no need for the Edgar exception. Virtually every spontaneous statement admissible under Edgar would fall within that category. According to the analysis in Tavares, such statements would then become admissible for their truth, with no limiting instruction to the jury, and no requirements for the accused to testify. I note as well that it takes a mere nanosecond for a person face down on the ground with a police officer on top of him to immediately deny ownership of a handgun found nearby. Such a denial is close to a reflexive reaction, and carries with it none of the circumstantial inferences of there being little time to concoct or fabricate a defence. It is one thing to hold that such statements can be admissible to show the spontaneous reaction of the accused to an accusation or arrest, subject to the accused submitting to cross-examination. However, it is another thing entirely to hold that such statements are admissible for their truth. Indeed, as noted by Prof. Paciocco in his article, the decision in Edgar has come under some criticism for its “conclusion that a spontaneous protestation of innocence is probative” because “even bald assertions of innocence which would take no time to concoct are caught, arguably stunting the force of the theory that credibility is enhanced by the lack of opportunity to contrive a false explanation.” [34]
[54] I note that this point was conceded by the Crown in Tavares, which in my view dramatically reduces the precedential weight that can be given to the decision. It was not a fully considered decision, nor does it fairly take into account the implications of the Court of Appeal for Ontario’s decision in Edgar. Further, in my view the law as stated by Douglas J. and the conclusion he reached in Tavares with respect to the arrest statements are not consistent with the decision of Pomerance J. in R. v. Hillis. I cannot follow two divergent opinions of this Court. I agree with the principles and conclusions as stated by Pomerance J., which is the more considered decision of the two.
[55] In the result, I decline to follow the decision in Tavares.
[56] The defence also relied on the Court of Appeal for Ontario’s decision in R. v. Hartling, [35] a unanimous decision of Benotto, Paciocco, and Thorburn JJ.A. That case did not involve a prior consistent statement of an accused, but rather statements made by the complainant to first responders after she was attacked, allegedly by her son, who was then charged with aggravated assault. The ambulance arrived on scene quickly and the victim told them that her son had hit her several times in the living room and then continued to beat her in the bedroom when she tried to call 911 for help. She was crying, bleeding, and intoxicated at the time she made these statements. At the time of trial, she gave a completely different story, testifying that it was her then boyfriend who had started an altercation with her, and that he slapped her causing her to fall, at which point she hit her face on the base of the dining room table causing the injuries. She said it was her son who called 911.
[57] The trial judge found the victim’s statements to the first responders about what happened to her to be admissible as res gestae because: “(1) they were made under ongoing stress of a dramatic event, (2) the statement related to the occasion that caused the stress, and (3) there was little or no possibility of concoction or fabrication.” [36] The trial judge also considered the statements to be admissible under the principled exception to the hearsay rule, meeting the criteria of necessity and reliability. On appeal, Benotto J.A. held that the trial judge had not erred in admitting the statement. She noted that the trial judge at times referred to this as res gestae, and at other times, as a spontaneous utterance and stated that her colleague (referring to Paciocco J.A.) had written that the better and more descriptive term is “spontaneous statement” rather than res gestae. Ultimately, the Court held that deference would be given to the trial judge’s conclusion that the victim “was still and very clearly, under the stress and pressure of the assault upon her when she made the statements in question” and that this refuted the allegation of concoction. The statement was also admitted by the trial judge under the principled exception to the hearsay rule. However, given the Court of Appeal’s conclusion, it was not necessary to address this approach.
[58] I would distinguish this case from the one before me. In Hartling, the witness testified and was cross-examined with respect to a prior statement. It was a judge-alone trial and the trial judge found that the statement given by the witness to the paramedics was spontaneous and given in circumstances where it could not have been concocted. He gave detailed reasons for why he found it to be reliable. In those circumstances, he admitted it for its truth, both under the spontaneous utterance (or res gestae) exception and under the principled exception to hearsay. The Court of Appeal deferred to that finding, while pointing out that it was not, strictly speaking, res gestae.
[59] I do not see Hartling as a precedent for admitting the spontaneous exculpatory statements of an accused person upon arrest as res gestae admissible for their truth. These are very different circumstances.
[60] Accordingly, I find that the statements made by Mr. Zameer to the officers in the parking garage at the time of his detention and arrest are admissible pursuant to the Edgar exception, provided that he first testifies and is cross-examined. However, they are not admissible for their truth and will be subject to the usual cautions as to the use the jury may make of them.
Admissibility of the Statement Made at the Police Station
[61] The statement at the police station was made approximately 12 hours after the events in question. It was video and audio recorded. During the intervening time, Mr. Zameer had spoken to duty counsel twice and had a third conversation with another lawyer. At the outset of the interview, he was again cautioned.
[62] In my view, the res gestae exception clearly does not apply. This statement cannot be considered to be part of the event itself because of the separation in time and location. It is simply an after-the-fact exculpatory statement. There is no basis for admitting this evidence through any exception to the hearsay rule.
[63] Further, this statement does not qualify for admission under any exception to the rule preventing the admission into evidence of prior consistent statements. The exception recognized in Edgar requires that the statement be made spontaneously upon arrest or when first confronted with an accusation. This statement was made 12 hours after Mr. Zameer’s arrest. Although Mr. Zameer was told for the first time during the interview that he was being charged with first degree murder, he was advised of this possibility hours before and had spoken to a lawyer for legal advice after that. There is nothing spontaneous about the statement. It was made after many hours of reflection. I have watched the video of the interview. For the most part, Mr. Zameer refused to answer questions, stating that he was relying on legal advice. A few times he volunteered exculpatory explanations, but those statements were not made reflexively or as part of a surprised reaction. This statement does not fall within the Edgar criteria, nor is it admissible on any other basis. It is not admissible through the police officers who took the statement, nor is it admissible through Mr. Zameer’s own testimony.
[64] The defence points to a number of authorities which have held that the length of time between an event and the spontaneous statement is not necessarily determinative. I agree. The determination as to whether a statement is spontaneous within the meaning of Edgar will be fact-specific and turn on the circumstances of the case.
[65] In R. v. Badhwar, [37] the accused was charged with criminal negligence causing death while street racing. At trial, he sought to introduce in evidence the statement he gave to the police five hours after the accident. The application was denied by the trial judge. Mr. Badhwar was convicted at trial. Prior to the argument of the appeal, the Court of Appeal for Ontario’s decision in Edgar was released. Mr. Badhwar argued that the trial judge erred in failing to admit his statement to the police. Moldaver J.A. (as he then was) held that spontaneity is a key factor underlying the exception described in Edgar, and that Mr. Badhwar’s statement would not have been admissible in any event. He stated:
Whatever else may be said about it, it 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 likely have excluded the appellant’s statement for lack of spontaneity. But even if the statement had been admitted, in my view, its probative value would have been minimal due to its lack of spontaneity. The appellant’s reaction upon being confronted with an accusation that he knew was coming and that he had had five hours to think about was not likely to be of much value to the jury. Bearing that in mind, as well as the fact that the statement contains nothing that the appellant did not tell the jury in his testimony, I am satisfied that the verdict would inevitably have been the same had the appellant been permitted to inform the jury of his statement to the police. [38]
[66] The defence relies on the Court of Appeal decision in R. v. Liard in which a prior consistent statement of an accused was admitted by the trial judge, even though 13 hours had passed from the time of the alleged murder to the commencement of the police interview. [39] Prior to the commencement of the interview, Ms. Liard’s boyfriend had already been charged with first degree murder and Ms. Liard had been charged with being an accessory after the fact for having helped clean up the scene. At approximately six hours into the interview, the police advised Ms. Liard that she also was being charged with first degree murder. She appeared stunned by this and stated, “I’m fucking innocent.” She continued to protest her innocence, including asking “how is this possible?” [40] At trial, Corbett J. held that the statement was admissible under the Edgar exception based on the spontaneity and naturalness of her police statement. He found that this was “powerful evidence of her state of mind” and that he had the “strong impression that we were getting far more of the ‘real Michelle Liard’ during the police statement than during her testimony.” [41] The Court of Appeal upheld this decision, finding that the three requirements under Edgar were met: (1) the accused testified and was cross-examined; (2) the statement was made when the accused was first accused of first degree murder; and (3) the trial judge found the statement to be spontaneous. Laskin J.A. held that the requirement of spontaneity “is the critical requirement for admissibility under the Edgar exception” and that it “is what gives the statement its probative value and justifies its admission.” [42] He went on to hold that there is no single point in time that is determinative, but that the passage of time between the crime and the accused’s reaction to an accusation will be relevant in determining spontaneity. He also noted that “spontaneity lies along a spectrum” and that when in doubt as to spontaneity, the trial judge “should admit the statement and allow the jury to assess its weight.” [43]
[67] In R. v. Graham, the Court of Appeal for Ontario had the benefit of the decision in Liard, but nevertheless upheld the decision of the trial judge excluding a prior consistent statement that was given approximately eight hours after the accused was arrested for sexual assault. The Court held:
The appellant was arrested at 12:50 p.m. and began his statement to police at 8:20 p.m. The trial judge did not err in concluding that the passage of time and the intervening events deprived the appellant’s statement of any potential relevance. He was entitled to give significant weight to the seven and a half hour gap between his arrest and the prior consistent statement in deciding that the statement lacked the necessary spontaneity to be admissible. [44]
[68] As has been observed in a number of these decisions, the determination of spontaneity is critical to a decision dealing with the Edgar exception and this is a contextual assessment depending on the whole of the surrounding circumstances. I recognize that Mr. Zameer was told for the first time that he was being charged with first degree murder, but this was not a surprise to him. He had already been warned about this and provided with access to additional legal advice because of the change in his jeopardy. Further, regardless of the specific charge, he knew from a very early stage that he was accused of running down a police officer and that officer had died from his injuries. I do not see Mr. Zameer’s statement to the police at the station as being in any way spontaneous. It provides no information as to his reaction upon being accused of murder. Neither is it a continuation of his prior statements merely because it is consistent with them. The fact that Mr. Zameer told the same story to police officers 12 hours after his arrest, after considerable reflection and three consultations with lawyers for advice, is irrelevant to any issue at trial. It is not corroborative, nor can it be considered as enhancing credibility by repetition. It is simply not admissible.
F. CONCLUSIONS
[69] The statement given by Mr. Zameer at the police station is not admissible in evidence.
[70] The statements made by Mr. Zameer to the police officers at the scene are admissible under the Edgar exception, but are not otherwise admissible through cross-examination of the police officers prior to Mr. Zameer testifying. If Mr. Zameer does not testify, the statements are not admissible.
[71] If the statements are admitted, they will be the subject of limiting instructions to the jury. I will not determine the content of those instructions before hearing submissions from the parties. I would propose that this be part of the closing instructions to the jury, unless the Crown seeks a mid-trial instruction prior to the evidence being led.
Molloy J. Released: January 4, 2024
Footnotes
[1] Preliminary Hearing Transcript, Cross-examination of DC Pais, p. 61. [2] Ibid. [3] Ibid at p. 70. [4] Preliminary Inquiry Transcript, Cross-examination of DC D’Souza, pp. 41-46. [5] R. v. Khan, [1990] 2 S.C.R. 531; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. [6] R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161 [Edgar]. [7] Ibid at para. 35. [8] D. M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 Can Crim L Rev 181 [Paciocco Article]. [9] Ibid at p. 185. [10] Ibid at pp. 185-186, n 6 citing, R. v. L.(D.O.), 73 Man. R. (2d) 238 (C.A.) and R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.). [11] Ibid at p. 186. [12] R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272. [13] Ibid at para. 7. [14] Edgar, supra note 6 at para. 44, citing R. v. McCarthy (1980), 71 Cr. App. R. 142 (Eng. C.A.) at p. 145. [15] Ibid at para. 71. [16] Ibid at para. 72. [17] Ibid. [18] Ibid at para. 79. [19] Ibid at para. 72 [emphasis added]. [20] Ibid. [21] R. v. Liard, 2015 ONCA 414, 327 C.C.C. (3d) 126, at para. 46, n 2 [Liard]. [22] R. v. Sylvain, 2014 ABCA 153, 575 A.R. 59, at para. 40. [23] R. v. Hillis, 2016 ONSC 450. [24] Ibid at paras. 23 and 34. [25] Ibid at paras. 24 and 35. [26] Ibid at paras. 26-27. [27] Ibid at para. 36. [28] Paciocco Article, supra note 8 at pp. 197-199. [29] R. v. Tavares, 2015 ONSC 2603. [30] Ibid at para. 1. [31] Ibid at paras. 11-13. [32] Ibid at para. 7. [33] R. v. Sullivan, 2022 SCC 19, 166 O.R. (3d) 638, at paras. 73-80. [34] Paciocco Article, supra note 8 at p. 209. [35] R. v. Hartling, 2020 ONCA 243, 388 C.C.C. (3d) 305. [36] Ibid at para. 17. [37] R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163. [38] Ibid at paras. 21-22. [39] Liard, supra note 21. [40] Ibid at para. 36. [41] Ibid at paras. 39-40. [42] Ibid at para. 62. [43] Ibid at paras. 63-64. [44] R. v. Graham, 2019 ONCA 347, 377 C.C.C. (3d) 205.