Her Majesty the Queen v. Sunjka

[Indexed as: R. v. Sunjka]

80 O.R. (3d) 781

Court of Appeal for Ontario,

Goudge, Gillese and LaForme JJ.A.

May 31, 2006

Criminal law -- Evidence -- Hearsay -- Accused seeking to adduce K's statement confessing to three mutual friends that he was responsible for stabbing leading to charges against accused -- Trial judge erred by considering on question of threshold reliability that K had made contradictory statements -- Only circumstances surrounding taking of statement relevant to threshold reliability -- K's statements were spontaneous and no apparent motive to lie at time -- K available for cross- examination -- Trial judge erring by failing to consider discretion to permit relaxed approach to admissibility of hearsay at request of accused -- Appeal from conviction allowed and new trial ordered.

The accused was charged with aggravated assault as a result of a stabbing which took place during a group fight. Several of the victim's friends testified that they observed the accused stabbing the victim. The accused denied it. K, one of the [page782] other participants in the melee, was called by the defence at trial. He denied having told several friends that he was responsible for the stabbing. The defence then called three witnesses who testified that K had made those admissions to them. All were friends of both the accused and K. The trial judge ruled that the out-of-court admissions by K lacked sufficient guarantees of reliability to be admissible for their truth. The jury was instructed to consider them only for the limited purpose of assessing K's credibility. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in ruling that K's out-of-court admissions were not admissible for their truth under the principled exception to the hearsay rule. He failed to consider that K was available for cross-examination at trial on the admissions. He also gave no consideration to his residual discretion to relax the strict rule, when it was the defence seeking to tender the out-of-court statements for their truth and where the evidence had some reliability. In coming to his decision, the trial judge relied on the fact that K gave a videotaped statement to the police on the night of the stabbing that was inconsistent with the admissions. However, in determining threshold reliability, it is the circumstances of the hearsay statement itself that must be considered, not other statements made prior to or subsequent to the one being scrutinized. The circumstances of the out-of-court admissions provided sufficient indicia of reliability to afford the jury a satisfactory basis for evaluating their truth. While the admissions were not made under oath, nor recorded in any fashion, they were all made spontaneously and shortly after the event. They were made to people who were friends of the accused but who were also part of K's circle of friends and with whom he presumably felt comfortable. Moreover, there was no evidence of any motive for K to fabricate. K was available at trial for cross-examination. The delay by the three witnesses in reporting the admissions was not a significant factor, as the witnesses proffered an explanation for the delay, and as the delay went more to the reliability of their evidence that the statements were made, rather than the reliability of the admissions themselves.

This was not an appropriate case for the application of the curative proviso in s. 686 of the Criminal Code, R.S.C. 1985, c. C-46. It could not be said that had the jury been permitted to use the admissions for their truth, the result of the trial would necessarily have been the same.

APPEAL from conviction for aggravated assault.

Cases referred to R. v. Folland (1999), 1999 3684 (ON CA), 43 O.R. (3d) 290, [1999] O.J. No. 143, 132 C.C.C. (3d) 14 (C.A.); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 128 D.L.R. (4th) 121, 186 N.R. 365, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133 Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(1) [as am.] Criminal Code, R.S.C. 1985, c. C-46, s. 686 [as am.]

Timothy E. Breen, for appellant. Renee Pomerance, for respondent Crown. [page783]

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- The appellant was tried on an indictment charging him with two counts: aggravated assault on Peter McSween and common assault on his brother Gannon McSween. Both arose out of events that took place in the early morning of October 22, 2000.

[2] The jury found him guilty on both counts. He was sentenced to 18 months in prison on count one and three months in prison on count two, to be served concurrently.

[3] The appellant appeals both conviction and sentence on count one. He appeals only sentence on count two, since during the trial, he admitted through his counsel the facts necessary to support a conviction on this count.

[4] In summary, the facts are as follows. On October 21, 2000, Peter and Gannon McSween spent the evening at a bar with a number of their friends. The appellant was also there with a group of his friends. The two groups did not know each other.

[5] As the bar was closing, Gannon McSween became involved in an altercation with one of the appellant's friends. Security staff intervened and asked everyone to leave the bar.

[6] The argument continued outside in the parking lot. Gannon McSween alleged that he was punched in the face by the appellant. Peter McSween wrestled with one of the appellant's friends, and when they fell to the ground, several others began assaulting him. When the melee broke up, it became evident that Peter McSween had been cut on the ear and stabbed in the abdomen.

[7] Several of Peter McSween's friends testified that they observed the appellant stabbing him while he was on the ground. Two others testified that the appellant had a blade-like object in his hand.

[8] The appellant and several of his friends, including Justin Khan, were arrested a short distance from the bar. In a statement to the police tendered by the Crown at trial, the appellant acknowledged punching Gannon McSween but denied stabbing Peter McSween. The appellant did not testify at trial.

[9] It was agreed that the injuries to Peter McSween amounted to wounding and that the person responsible for inflicting them was guilty of aggravated assault. The only issue at trial was identity.

[10] Khan, who had been present in the bar, was called by the defence. He denied having told several friends that he was responsible for the stabbing.

[11] Following Khan's evidence, the defence called three witnesses who testified that he had made those admissions to them. All were friends both of the appellant and Khan. One said that as he and Khan drove away from the bar that night, Khan was asked [page784] what happened and responded, "I cut the guy." The second said that the next night she met a group of friends, including Khan and the appellant, and when she asked Khan about the previous night, he said that he broke a beer bottle and "juked" a guy. The third witness said that during a phone call with Khan the next morning, Khan told him that he "nailed" and "juked" some guy with a beer bottle.

[12] The trial judge ruled that the out-of-court admissions by Khan lacked sufficient guarantees of reliability to be admissible for their truth. The jury was instructed to consider them only for the limited purpose of assessing Khan's credibility.

The Conviction Appeal

[13] The appellant raises three issues. He argues that the trial judge erred in instructing the jury on the issue of in- court identification and in failing to adequately identify inconsistencies among the prosecution witnesses concerning the issue of identification.

[14] However, the appellant's major argument is that the trial judge erred in refusing to permit the substantive use of Khan's out-of-court admissions. This issue arose in a rather unusual way. At the close of the Crown's case, defence counsel advised that Khan could not be located and sought to tender his out-of-court admissions through the three witnesses. The trial judge began a voir dire, in which these witnesses were called by the defence. The next day, because of additional efforts by the police, Khan was located and attended at court. The trial resumed with the jury, and the defence called Khan, seeking to have him declared adverse pursuant to s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. He was fully examined by the defence and cross-examined by the Crown. Khan denied making the statements attributed to him by the three witnesses and denied stabbing Peter McSween.

[15] The next day the trial judge made the ruling that is now challenged. The trial then concluded with the defence calling the three witnesses who heard Khan's admissions. They too were fully examined and cross-examined.

[16] In his charge, the trial judge instructed the jury that they could not use the evidence of these three witnesses of the admissions by Khan to find those admissions to be true, but only to assess Khan's credibility. In his recharge, the trial judge underlined this instruction.

[17] In his ruling on the use to be made of Khan's out-of- court admissions, the trial judge made clear that the sole issue was their reliability. He found that the other requirements of s. 9(1) of the Canada Evidence Act were met including that the admissions [page785] were made. The necessity requirement was satisfied because Khan denied making them.

[18] Because the admissions were not under oath, nor recorded, the trial judge properly asked himself if there were other circumstantial guarantees of worthiness sufficient to find threshold reliability, thus allowing the jury to consider the admissions for their truth.

[19] He clearly stated his conclusion that there were none. In doing so, he referred to only two considerations. The first was the availability of the three witnesses for cross- examination, a consideration that he found to be insufficient. The second was the fact that on his arrest that night, Khan had given a videotaped statement to the police that made no mention of the admissions. The trial judge found that this supported his ruling.

[20] For three reasons, I agree with the appellant that the trial judge erred in this ruling.

[21] First, it appears that he failed to consider that the declarant Khan was himself available to be cross-examined at trial on these admissions. The importance of this factor was underlined by Lamer C.J. in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, 101 C.C.C. (3d) 97, at p. 790 S.C.R., p. 116 C.C.C.:

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.

[22] The Crown argues that cross-examination is of no help here when Khan denies that he ever made the statements. I disagree. It is true that because of his complete denial Khan has no explanation for changing his story from one version to another that could be explored on cross-examination. However, cross-examination could certainly address his relationships with the three witnesses testifying to his admissions and all of the circumstances in which they say the admissions were made. All of this would advance the jury's ability to assess the ultimate reliability of the admissions.

[23] Second, the trial judge appears to have given no consideration to his residual discretion to relax the strict rule, when it is the defence seeking to tender these out-of- court statements for their truth and where that evidence has some reliability. As Rosenberg J.A. said in R. v. Folland (1999), 1999 3684 (ON CA), 43 O.R. (3d) 290, [1999] O.J. No. 143, 132 C.C.C. (3d) 14 (C.A.), at p. 305 O.R., p. 31 C.C.C.:

In my view, while the trial judge must be satisfied that the prior out-of-court utterances have some reliability, the strict standards set, in the context of an application by the Crown to make substantive use of prior inconsistent statements incriminating the accused, in R. v. B. (K.G.) do not apply. [page786]

[24] Third, in coming to his decision, the trial judge relied on the fact that Khan gave a videotaped statement to the police that night that was inconsistent with the admissions. However, in determining threshold reliability, it is the circumstances of the hearsay statement itself that must be considered, not other statements made prior to or subsequent to the one being scrutinized. In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, Iacobucci J. put it this way at p. 254 S.C.R., p. 535 C.C.C.:

At the stage of hearsay admissibility, the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself.

[25] Thus, I conclude that the trial judge erred by improperly applying the considerations relevant to the question of threshold reliability.

[26] On a proper consideration, I am of the view that the circumstances of the out-of-court admissions provide sufficient indicia of reliability to afford the jury a satisfactory basis for evaluating their truth. While the admissions were not made under oath, nor recorded in any fashion, they were all made spontaneously and shortly after the event. They were made to people who were friends of the appellant but who were also part of Khan's circle of friends and with whom he presumably felt comfortable. Moreover, there is no evidence of any motive for Khan to fabricate. He was clearly linked to the events in question, as his arrest that night demonstrates. Most importantly, Khan was available at trial to be fully cross- examined on the admissions. Finally, it was the defence that sought to tender the admissions for their truth and since Khan's denial of the stabbing was before the jury (with no limit on its use), it seems to me only fair that his contrary statements should be available for substantive use by the defence, not just for credibility purposes.

[27] The respondent suggests that the delay by the three witnesses in reporting these admissions casts doubt on their reliability. In my opinion that is not a significant factor. The witnesses proffered an explanation for the delay. Moreover, the delay goes more to the reliability of their evidence that the statements were made, rather than the reliability of the admissions themselves, which is the issue here.

[28] The respondent also argues that even if the hearsay ruling was in error, it caused little if any prejudice to the appellant, because the admissions were before the jury in any case, and they were invited to consider their impact on Khan's credibility. The respondent therefore urges that this is a proper case in [page787] which to apply the curative proviso in s. 686 of the Criminal Code, R.S.C. 1985, c. C-46.

[29] I do not agree. The jury was clearly and forcefully charged and then recharged that they could not use the evidence of Khan's admissions for their truths. Given the circumstances of the offence, I cannot say that had the jury been permitted to use the admissions for their truth the result of the trial would necessarily have been the same.

[30] In summary, I conclude that the trial judge erred and that the hearsay evidence of Khan's admissions should have been admitted for its truth. I would therefore allow the appeal, set aside the conviction on count one and order a new trial.

[31] It is thus unnecessary to deal with the appellant's alternative arguments on the conviction appeal, or with his appeal of sentence for aggravated assault.

[32] However, the appellant also appeals his three month sentence for common assault. His only argument is not that there was an error in principle, but that the sentence was unfit. I disagree. The appellant had two prior convictions, one of which was also for assault. At trial, although the sentencing submissions for this offence were made after the 18- month sentence for aggravated assault was imposed, the Crown proposed six months in jail and the defence proposed one month. In the circumstances, I cannot find the sentence of three months to be outside the range. The appeal from sentence for common assault therefore must be dismissed.

Appeal allowed.