DATE: 20030306

DOCKET: C39214

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

SHAWN CHAPPELL Appellant

James Foord, for the appellant Riun Shandler, for the respondent

Heard: January 28, 2003

On appeal from conviction by Justice J.M. Bordeleau of the Ontario Court of Justice dated October 1, 2002.

ROSENBERG J.A.:

[1] This appeal concerns first, the duty of a trial judge to give reasons on a ruling admitting hearsay evidence and second, the admissibility for its truth of a statement made by a recanting witness. The appellant was convicted by Bordeleau J. of assault causing bodily harm on his wife.[^1] There was a body of circumstantial evidence to support the conviction. However, the appellant’s wife testified and denied that the appellant assaulted her. She explained that the significant injuries observed by the police were caused by an accidental fall. The trial judge permitted the Crown to cross-examine the witness on statements she had made to the police and then ruled that the statements were admissible for their truth in accordance with the decision in R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.).

[2] In my view, the trial judge erred in law in failing to give reasons for admitting the statement for its truth. Accordingly, I would allow the appeal and order a new trial.

THE FACTS

[3] Just after six o’clock in the morning of July 27, 2002, three police officers came to the appellant’s apartment building as a result of a complaint from another resident in the building. The officers heard some noise from within the appellant’s apartment that sounded like a bit of a struggle. The officers then entered the building and went to the appellant’s apartment. They did not hear anything when they reached the door. The officers knocked on the door but the appellant refused to open it. They then broke through the door with an axe. Two officers placed the appellant under arrest and removed him from the apartment. The appellant appeared to be intoxicated.

[4] The third officer, Constable Hollett, saw a table knocked over, broken glass on the floor and a tire iron lying on the floor of the bathroom. He then located Ms. Chappell curled up in a ball on the bed in the bedroom. While he had earlier drawn his service revolver, he had put it back in the holster before approaching Ms. Chappell. She was crying and had several visible serious injuries, including an apparent fracture on her right hand. Her eyes were swollen and red, and her lips were swollen. According to Constable Hollett, Ms. Chappell said, “He was beating on me for the past two hours. I tried, but I couldn’t get out. He used a crowbar to beat me.” She made this statement before the officer had a chance to say anything to her. She was shaking and crying and seemed upset and scared and “terrified as to the ordeal that she just endured”. The bedroom seemed to be in disarray, as if there had been a struggle.

[5] Constable Hollett tried to speak to Ms. Chappell. She was uncooperative and initially refused to identify herself. She said, “I didn’t want anything to happen from this. I didn’t want police involvement.” She also told the officer that she was terrified of the appellant and that he would kill her “if she got involved”. At some point, ambulance attendants took Ms. Chappell to the hospital.

[6] Ms. Chappell is 5’6” and weighs about 120 pounds. The appellant is 6’2” and weighs about 180 pounds.

[7] At trial, Constable Hollett described Ms. Chappell as “may have been drinking, but she did not seem intoxicated”, “a bit intoxicated”, “appeared sober … I knew she was drinking some alcohol”. In his notes, he described her as “intoxicated”.

[8] Another officer, Constable Burns tried to interview Ms. Chappell at the hospital. She kept saying, “you don’t understand, this is the end for me. I didn’t do this. You can’t do this to me.” Constable Burns told her about the mandatory policy of laying charges in domestic assault cases. Ms. Chappell pleaded with her not to lay charges, that the appellant would kill her. Ms. Chappell also wanted the appellant to know that she did not call the police. Constable Burns asked Ms. Chappell about her injuries. She said that she did it to herself and when asked about the blood on her arm, she said, “I got hungry and took a bite.” She refused to let the police take pictures of her injuries or to authorize the release of her medical records.

[9] Ms. Chappell testified that the appellant is “loving and caring”. She testified that the night the police came to her apartment she and the appellant had been drinking. They were arguing, shouting and calling each other names. The appellant broke a glass in the kitchen and then went to the living room to sleep. Ms. Chappell tripped over his toolbox, fell down the stairs, and landed on a tire iron from the box. She yelled at the appellant for leaving his tools around and she carried the tire iron up to the bathroom. She rinsed off her hand and was going to sleep in the bedroom when the police broke in.

[10] Ms. Chappell testified that she was intoxicated. She remembered talking to Constable Hollett. He said, “you took a bad beating” and she said, “you don’t understand”. She asked him if she could go to the bathroom, but he said “no”. She admitted telling the officer that the appellant had been beating on her for the past two hours, that she could not get out, and that he had used a crowbar to beat her. However, she testified that she said that only after he refused to let her go to the bathroom. After she told the officer that the appellant had beat her he let her go to the washroom. She testified that she caused the injuries to herself while she was in a state of intoxication.

[11] She also admitted that she told the officer, “You don’t understand, he’ll kill me” but testified that she said that because the police had arrested the appellant saying that he had beat her up and she knew he would be “mad”. She was upset, but denied being scared. While the appellant was in jail pending the trial she visited him about twice a week. She apologized to him because he was in jail for something she did to herself.

[12] Constable Hollett agreed that he originally told Ms. Chappell that she could not go to the bathroom. He said it was out of concern for her safety. However, he later did let her go to the bathroom. He could not recall what changed his mind.

[13] Although the tenor of Constable Hollett’s evidence was that he alone questioned Ms. Chappell at the apartment, another officer, Constable White testified that he also talked to Ms. Chappell. Constable White’s evidence was not very specific about the conversation. He only recalled that Ms. Chappell was uncooperative and that she said, “He’s going to kill me.” He could not recall whether Constable Hollett had a conversation with Ms. Chappell. When the ambulance arrived about thirty minutes after the police, this officer went with Ms. Chappell. At the hospital, she kept saying, “I can’t. He will kill me.” He testified that he did not recall whether she was intoxicated.

THE SECTION 9(2) CROSS-EXAMINATION

[14] The trial judge ruled that Crown counsel could cross-examine Ms. Chappell in accordance with s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. Ms. Chappell did not materially change her testimony during this cross-examination. She agreed that she never told the police that the injuries were caused when she fell down the stairs and landed on the tire iron. She testified that she was scared not of her husband, but because the police had smashed her door down, were in her apartment, had assaulted her husband, and dragged him away. She testified that the injuries occurred 45 minutes to an hour before the police arrived. She claimed that Constable Hollett kept saying that her husband beat her and hit her and asking her what he used. He refused to let her go to the bathroom because it was “a crime scene”.

[15] Ms. Chappell denied that she concocted her trial testimony while visiting with the appellant at the jail.

THE HEARSAY RULING

[16] Crown counsel sought to have Ms. Chappell’s statements to all three officers admitted for their truth pursuant to R. v. B. (K.G.). The trial judge’s ruling was as follows:

It is clear that the statements are not signed, that they are only notes from the officers, that there is an absence in this case of video or audio recording and it is not a formal statement.

Now, it is clear, and it has not been argued on that point, and I am satisfied that necessity has been established by the Crown.

Now, the only issue for this court to decide is as to whether the statements made to the three officers are in fact reliable.

I have heard the submission of both [counsel] and they have referred to me numerous cases, including the case of Regina v. K.G.B. which is a well known decision of the Supreme Court of Canada.

Now, having heard the evidence, having heard the testimony of the police officers, having heard the testimony of the complainant in this case, Maureen Chappell, I have come to the conclusion that, on the totality of the events of the day in question, namely, on the 27th of July of the year 2002, that I am persuaded on a balance of probabilities that the statements made by Mrs. Chappell to the officers are in fact reliable.

Consequently, the statements made will be admitted in the voir dire as part of the evidence to be considered by the court.

THE REASONS FOR CONVICTION

[17] In his reasons for judgment, the trial judge reviewed the evidence. He set out verbatim Constable Hollett’s testimony of his conversation with Ms. Chappell. He held that “[t]here is no evidence before the court that Mrs. Chappell was intoxicated. There is evidence that she had been drinking.” The trial judge stated that he had the “distinct impression” from what Ms. Chappell testified that she was very scared of the appellant. He then held as follows:

I am satisfied that, in fact, on the day in question, the injuries that she has received, and I am satisfied beyond a reasonable doubt having regard to all the circumstances, were caused by the actions of Mr. Chappell and that he fact caused the injuries to Mrs. Chappell.

ANALYSIS

The Sufficiency of Reasons

[18] In R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), Binnie J. discussed the duty on trial judges to give reasons for convicting or acquitting the accused. At paragraph 55, Binnie J. summarized his conclusions. His points 5, 6 and 8 are of importance in this case:

5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered.

6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

7. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.

[19] The functional approach described by Binnie J. is, in my view, applicable to the ruling in this case. The ruling on the admissibility of Ms. Chappell’s statements to the police, especially those to Constable Hollett, was a pivotal one. In view of Ms. Chappell’s testimony, her statements at the scene were the only direct evidence consistent with the appellant’s guilt. The appellant could only understand why he was convicted if he understood why his wife’s hearsay statements had been admitted. Further, meaningful appellate review would be difficult if the trial judge did not explain why the hearsay statements should be admitted.

[20] The trial judge’s ruling in this case did not satisfy the functional requirements. After reciting circumstances showing why the statement was not reliable, i.e. “that the statements are not signed, that they are only notes from the officers, that there is an absence in this case of video or audio recording and it is not a formal statement” the trial judge simply concluded “on the totality of the events of the day in question” that the statements were reliable. He gave no explanation for how he could have made that finding in the face of the earlier recited circumstances. The trial judge also failed to resolve crucial factual issues upon which any finding of reliability depended, for example: the degree of Ms. Chappell’s intoxication; whether the first statement was made spontaneously before Constable Hollett questioned Ms. Chappell or only after vigorous questioning by the officer; and whether the police arrived shortly after the injuries occurred or, as testified to by Ms. Chappell, some 45 to 60 minutes later.

[21] It seems to me that point 6 quoted above from Sheppard reasons directly applies in this case. For convenience I repeat it:

Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

[22] As I will discuss below, the full extent of the B. (K.G.) exception to the hearsay rule is not yet determined. The statements sought to be admitted in this case did not fall within the traditional strictures of that exception as set out in that case. If the trial judge intended to embark on a further expansion of the exception he was confronting “troublesome principles of unsettled law” and was bound to provide reasons for doing so. Further, while the trial evidence was perhaps not confused, it was contradictory on several key issues. Finally, the unarticulated basis of the trial judge's conclusion is certainly not apparent from the record. In the circumstances, I am of the view that the trial judge erred in law in failing to provide adequate reasons.

The B. (K.G.) Exception

[23] In R. v. B. (K.G.), Lamer C.J.C. explained when a prior inconsistent statement of a Crown witness may be admissible for its truth as an exception to the hearsay rule. In doing so, he applied a variant of the principled approach articulated by the court in R. v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.) and R. v. Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.). He accepted that the court could admit hearsay evidence if it met the requirements of necessity and reliability. In the case of a prior inconsistent statement the necessity requirement could be met because the witness has recanted his or her prior version of events and thus that version is no longer available to the trier of fact.

[24] As to reliability, Lamer C.J.C. held in R. v. B. (K.G.) at p. 288 that because “the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial … additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence.” Those additional indicia and guarantees of reliability focus on the hearsay dangers of the absence of an oath and presence. The absence of contemporaneous cross-examination, i.e. cross-examination at the time the statement was made is usually[^2] adequately compensated for by the fact that, by definition, the declarant is available at the trial for cross-examination.

[25] To compensate for the absence of oath, Lamer C.J.C. held that the “best” indicia of reliability is that the statement was taken under oath, solemn affirmation, or solemn declaration and following the administration of a warning of the witness’s amenability to prosecution if it were discovered that the witness has lied (p. 291). However, there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable.

[26] To address the hearsay danger arising from the fact that the trier of fact cannot observe the witness when he or she made the prior inconsistent statement, Lamer C.J.C. held at p. 293 that there should be a complete videotape record of the statement. Again he held that it might be possible that the testimony of an independent third party observing the making of the statement in its entirety “in exceptional circumstances” could also provide the requisite reliability.

[27] However, Lamer C.J.C. made it clear at p. 294 of R. v. B. (K.G.) that the requirements were not to be applied mechanically and thus, “other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires”. An example of these alternative circumstances is provided by R. v. U. (F.J.) (1995), 101 C.C.C. (3d) 97 (S.C.C.) where the complainant recanted from an allegation that her father, the accused, had sexually assaulted her. The court held that although the complainant’s statement was not taken under circumstances that would have met the R. v. B. (K.G.) requirements it was sufficiently reliable because of the striking similarity between the statement and the accused’s own statement to the police, provided that there was neither reason nor opportunity for the declarants to collude and no improper influence by interrogators or other third parties. While R. v. U. (F.J.) illustrates the flexibility of the principled approach as applied to prior inconsistent statements, it also shows the unusual circumstances that must exist before the R. v. B. (K.G.) requirements can be wholly disregarded.

[28] In this case, the only one of the R. v. B. (K.G.) requirements that was met was the fact that the complainant was available for cross-examination. There was nothing else, as the trial judge seemed to recognize, to bring the case within R. v. B. (K.G.). The statements were not videotaped or even audiotaped. It is not even clear that there was an accurate record of the entire statement-taking process. The three officers involved conceded that they did not purport to take down everything that the uncooperative declarant was saying. There was no warning to the witness of the consequences of lying. There was no independent third party to compensate for the fact that the trier of fact was not present when the statement was made.

[29] The question then is whether there are other exceptional circumstances as in R. v. U. (F.J.) that would permit the trial court to admit the prior inconsistent statements for their truth. In R. v. U. (F.J.) Lamer C.J.C. held that neither that case nor R. v. B. (K.G.) should be read as foreclosing the possibility that other indicia of reliability might suffice, where the declarant is available for cross-examination. Thus, he said the following at para. 39:

[39] Cross-examination alone, therefore, goes a substantial part of the way to ensuring that the reliability of a prior inconsistent statement can be adequately assessed by the trier of fact. In B. (K.G.), I wrote that prior inconsistent statements subject to cross-examination, made under oath and videotaped would be substantively admissible because each of the hearsay dangers would be addressed. I also, however, indicated that in certain particular circumstances a prior inconsistent statement could be admitted even in the absence of an oath and a video record, although not in the absence of cross-examination. In my assessment, this is one of the cases where there are sufficient circumstantial guarantees of reliability that the statement of the complainant ought to have been admitted for the truth of its contents. [Emphasis added.]

And at para. 45:

[45] I anticipate that instances of statements so strikingly similar as to bolster their reliability will be rare. In keeping with our principled and flexible approach to hearsay, other situations may arise where prior inconsistent statements will be judged substantively admissible, bearing in mind that cross-examination alone provides significant indications of reliability. It is not necessary in this case to decide if cross-examination alone provides an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements. [Emphasis added.]

[30] In the absence of findings of fact by the trial judge, this court is in no position to decide whether there are exceptional circumstances as in R. v. U. (F.J.), that would allow the trial judge to make substantive use of any of Ms. Chappell’s statements to the police. I therefore offer the following comments to assist the trial judge on the new trial, should the Crown choose to proceed to retry the appellant.

[31] It seems to me that, at best, only the initial statement to Constable Hollett could possibly meet the threshold reliability requirement. Two factors that the trial judge could take into account in favour of admitting that statement for its truth are: (1) Ms. Chappell was available for cross-examination and it appears that defence counsel was able to effectively cross-examine her; and (2) although she disputes Constable Hollett’s evidence about the circumstances under which the first statement was made, she concedes that his recollection of the content of that statement is correct.

[32] Even so, it seems to me that the statement would only be available for substantive use if certain critical findings of fact were made in favour of the Crown. If contrary to the evidence of Constable Hollett, the statement was not spontaneous or Ms. Chappell was intoxicated, the statement would not be sufficiently reliable. The trial judge would also have to make a determination of how proximate the statement was to the alleged assault and whether Ms. Chappell’s state of fear, as observed by Constable Hollett, was the result of the assault or something else, such as the actions of the police in breaking down her front door with an axe and arresting her husband at gunpoint. If the trial judge was satisfied that the statement was made under emotional pressure from the assault and without apparent motive to fabricate, the statement might be admissible for substantive use, provided that Ms. Chappell was available for effective cross-examination.

CONCLUSION

[33] While there was other circumstantial evidence from which a trier of fact might conclude that the appellant assaulted his wife, it cannot be said that the trial judge’s error in admitting Ms. Chappell’s statements to the police for their truth caused no substantial wrong or miscarriage of justice. As I have said, the trial judge quoted verbatim from that part of Constable Hollett’s testimony where the officer recounted his conversation with Ms. Chappell. It is apparent that the trial judge relied upon this evidence to find the appellant guilty.

DISPOSITION

[34] Accordingly, I would allow the appeal, set aside the conviction and order a new trial for assault causing bodily harm.

Signed: “Marc Rosenberg J.A.”

“I agree M.J. Moldaver J.A.”

“I agree Janet Simmons JA.”

RELEASED: “MR” MARCH 6, 2003

[^1]: The appellant was originally charged with aggravated assault. The trial judge found that the offence as charged was not made out but he convicted of the included offence of assault causing bodily harm. [^2]: But not always as where the declarant/witness claims to have no memory of the events. In such a case, “Cross-examination becomes, to a large extent, an exercise in futility and does not serve as a substitute for contemporaneous cross-examination on the prior statement, as it does in most cases”: R. v. Conway (1997), 121 C.C.C. (3d) 397 (Ont. C.A.) at para. 29.