COURT OF APPEAL FOR ONTARIO

DATE: 20040521

DOCKET: C39456

MacPHERSON, CRONK and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Tanya Kranjc for the appellant

Respondent

• and -

JASON WILFRED “JAY” MICHAUD

Benita Wassenaar for the respondent

Appellant

Heard: May 19, 2004

Released Orally: May 19, 2004

On appeal from the conviction entered and the sentence imposed by Justice C. Bruce Noble of the Superior Court of Justice, sitting without a jury, on December 30, 2002.

BY THE COURT:

[1] The appellant argues that the trial judge erred in admitting the evidence of statements made by the victim to Dr. Buehner and Detective Constable Christopher Chiappetta. We disagree.

Statement to Dr. Buehner

[2] We did not find it necessary to call upon the Crown in respect of the statement to Dr. Buehner. We are satisfied that the statement was presumptively admissible under the spontaneous declaration exception to the hearsay rule (see R. v. Dakin (1995), 1995 1106 (ON CA), 80 O.A.C. 253 at paras. 19 – 22) and that the appellant has not discharged the burden of showing that it is inadmissible despite falling within a traditional exception to the hearsay rule. See R. v. Starr (2000), 147 C.C.C. (3d) 499 (S.C.C.) at para. 214.

[3] In any event, in our view the requirements of necessity and reliability were satisfied. Necessity was conceded at trial and on appeal. In terms of reliability, we are satisfied that the threshold reliability standard was met based on the following facts:

• the statement was given within an hour and a half of the assault;
• the victim went directly to the hospital after the assault;
• at the time of making the statement to Dr. Buehner, the victim was in an emergency room suffering from a broken jaw. In the circumstances of this case, that was a sufficiently dramatic event to satisfy the trial judge that the event dominated the victim’s thoughts so as to exclude the possibility of concoction or distortion;
• there was nothing to impede the victim’s ability to accurately recall the events in question;
• there was no coercion of the victim; and
• the victim did not repudiate her statement at trial.

[4] In relation to motive, it was open to the trial judge to accept the victim’s testimony that although she had been angry with the appellant over his infidelity and had broken up with him some two weeks earlier, they were “getting along alright”.

Statement to Constable Chiappetta

[5] Again, the necessity requirement was conceded at trial and before us.

[6] Although some of the traditional safeguards to support reliability of the out of court statement to Constable Chiappetta are absent, we are satisfied that in the circumstances of this case there are sufficient indicia of threshold reliability to justify the decision of the trial judge to admit the statement for the truth of its contents.

[7] In respect of the absence of an oath, we note that the victim was warned by Constable Chiappetta that it was a serious criminal offence to provide a false statement to police, to wrongly accuse a person of a crime or to wrongly cause the police to enter into an investigation of another person; that if she gave testimony in court that was untruthful and different from her statement she could be charged with an offence; that her statement might be used in court; and that her statement might lead to the laying of criminal charges. She indicated that she understood the importance of the information she was providing. She read over and signed the document.

[8] In the circumstances, we are satisfied that the warning was sufficient to bring home to the victim the gravity of the situation and her duty to tell the truth.

[9] In relation to cross‑examination, the victim was available to be tested on possible motives to falsely implicate the appellant. Limitations on cross‑examination resulting from the victim’s stated inability to recall could be considered in assessing the ultimate weight to be given to the statement.

[10] Finally, we recite the facts as listed in the Crown’s factum at paragraph 67, with minor amendments, as being sufficient to satisfy the threshold reliability standard:

• the warning given by the police officer;
• the victim’s ability to accurately recall the events in question at the time the statement was made – at the time the statement was made to Constable Chiappetta, the victim was still in hospital as a result of the assault that had occurred some 12 hours earlier;
• the fact that the statement was taken down virtually verbatim, read over by the victim and signed by the victim;
• the absence of any coercion to provide a statement;
• subject to our earlier comments about motive, the absence of a motive to fabricate the statement;
• the fact that at trial the victim did not repudiate her statement to the officer;
• the witness’ availability for cross‑examination at trial, accepting that it was limited due to her stated inability to recall; and
• contextual considerations relating to the pressures on a victim to recant in the context of a domestic abuse type situation.

[11] It is true that the trial judge referred to external corroborating evidence to support his admission of the statement. However, even if that was not a proper consideration, the other factors demonstrating reliability are overwhelming.

Conclusion on Conviction Appeal

[12] We saw no need to call on the Crown on the remaining ground of appeal, namely the trial judge’s failure to consider whether there was a residual basis for rejecting the evidence and would not give effect to that ground.

[13] Accordingly, the appeal against conviction is dismissed.

Sentence Appeal

[14] In light of the violence of the crime and the appellant’s criminal record, the sentence imposed was entirely fit. Accordingly, leave to appeal sentence is granted and the sentence appeal is dismissed.

RELEASED: May 21, 2004

“J.C.M.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”