COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2013 ONCA 442

DATE: 20130626

DOCKET: C52747 & C52758

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dustin McDonald

Appellant

and

Brandon Green

Appellant

Clayton Ruby and Gerald Chan, for the appellant Dustin McDonald

Mark Halfyard, for the appellant Brandon Green

David Lepofsky and Dan Guttman for the respondent

Heard: January 16, 2013

On appeal from the convictions entered on May 28, 2010 by Justice Robert M. Thompson of the Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

[1] After a nine-day jury trial, the appellants were convicted of common assault on Myles Bruer and aggravated assault on William Allen. They were sentenced to ten months’ incarceration for the aggravated assault, one month concurrent for the common assault, and an additional two years of probation. In argument before this court, it became clear that the appellants were challenging only their convictions for aggravated assault on Allen.

[2] For the reasons set out below, I would allow the appeals with respect to the aggravated assault convictions, set aside these convictions and order a new trial on the charge of aggravated assault.

The Factual Context

[3] On Friday, October 10, 2008, the appellants, together with their friends, Scott Graham and Andy Barber, met at Bridges Tavern in Thornbury, Ontario. There was also another group consisting of Myles Bruer, William Allen, Gregory Lafond, Kayla Anscomb and Amelia Clarke. The two groups shared some bad blood going back years, and after a brief physical altercation in the bar Green was ejected and escorted out by the bar owner. Eventually, Graham, McDonald and Green were outside the bar while Bruer, Allen and their friends stayed until closing time.

[4] The two groups encountered one another on the street later and there was a short fight. William Allen suffered serious personal injuries.

[5] Without admitting that either McDonald or Green had personally struck Allen and caused his injuries, the defence conceded that Allen’s injuries amounted to maiming within the meaning of s. 268(1) of the Criminal Code. Allen had therefore suffered an aggravated assault in the course of the fight.

[6] The issue at trial was who caused the injuries to Allen that maimed him. On the facts, it could have been one of Graham, McDonald or Green, alone or in some combination.

[7] Bruer’s evidence is that he was assaulted first by either McDonald or Green. He was punched in the face. His arm was twisted behind him and he was forced to the ground where he was kicked in the head and the body. The assault dazed him. His eyes swelled nearly shut and a contact lens had been knocked out of one of his eyes. He got up, went over to his girlfriend, Amelia Clarke, and they started walking away from the scene. They were about 150 feet away when Bruer turned and saw Allen lying on the ground “getting kicked”. Bruer testified that, despite the nighttime darkness, because there were street lights, and despite the loss of a contact lens, and his swollen eyes, he could see. He identified the appellants as the attackers. He then ran to Allen to provide assistance.

[8] Clarke also identified the appellants as the individuals who attacked Bruer. She testified that she saw Allen being “dragged into the road” by McDonald and another unknown male. In her examination-in-chief she stated that she saw the appellants “kicking and stomping on” Allen. She testified that when she approached them, they left. In cross-examination she maintained her position.

[9] Graham admitted assaulting Allen (he had earlier pleaded guilty to doing so), but says that after kicking him a couple of times in the ribs he realized what he was doing was wrong and left the scene. He denied kicking Allen in the head and claimed to be unsure if either Green or McDonald had struck Allen.

[10] Green testified that he exchanged punches with Bruer and that Graham had caused all of Allen’s injuries.

[11] Stated briefly, Bruer and Clarke testified that they each saw McDonald and Green kicking Allen in the face. In his testimony, Green denied kicking anyone: rather, he identified Graham as the one who kicked Allen in the face. Graham denied doing so. At trial, the defence strongly contested the identification evidence in this melee.

The Grounds for Appeal

[12] The appellant McDonald, supported by the appellant Green, raises as one ground of appeal that the trial judge erred in failing to properly charge the jury on the doctrine of common purpose under s. 21(2) of the Criminal Code. The appellants also submit that the misuse of hearsay evidence further complicated the jury’s task. The appellants raise other grounds of appeal that do not, in my view, require a decision of this court.

The Context for the Common Purpose Issue

[13] Counts one and two of the indictment provide as follows:

HER MAJESTY THE QUEEN PRESENTS THAT DUSTIN McDONALD AND BRANDON CHRISTOPHER GREEN on or about the 11th day of October, 2008, at the Town of The Blue Mountains, Central West Region and elsewhere in the Province of Ontario, did commit an assault on Myles BRUER, contrary to Section 266 of the Criminal Code of Canada;

AND FURTHER, THAT DUSTIN McDONALD AND BRANDON CHRISTOPHER GREEN on or about the 11th day of October, 2008, at the Town of The Blue Mountains, Central West Region and elsewhere in the Province of Ontario, did maim William Allen, thereby committing an aggravated assault, contrary to Section 268 of the Criminal Code of Canada.

[14] The parties characterized McDonald and Green as being “jointly charged”.

[15] As noted, Green denied assaulting Allen. Green testified, but McDonald did not. Graham had earlier pleaded guilty to assaulting Allen and testified at this trial, but denied kicking Allen in the face; he asserted that he stopped the assault on Allen and was leaving the scene when Allen was further assaulted.

[16] The defence challenged Clarke’s and Bruer’s evidence identifying Green and McDonald as Allen’s assaulters. There was also some evidence that “two unidentified males” were responsible for assaults on Allen, the implication being that his assaulters were neither Green nor McDonald. The appellants argue that the Crown pursued the “common purpose” approach under s. 21(2) of the Code in order to avoid the manifest identity challenges.

[17] s. 21(2) of the Criminal Code provides:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[18] The Crown’s closing address to the jury focussed heavily on “common purpose,” as the following excerpt shows:

Now, I'm going to go and speak a little bit about some of the evidence. First of all, you're going to recall that at the very beginning of my opening, I asked you to think of this framework I was going to give you to sort of organize your evidence. I said, "Consider the evidence of the state of mind of the individuals as a group as they left the bar and as they walked down Bruce Street later on. How they were feeling. How they were acting. Did they have a motive to enter into a confrontation?"

The second thing I said, "Consider any evidence of whether either Mr. McDonald or Mr. Green directly struck either Mr. Allen or Mr. Bruer."

Third, "Consider any evidence that shows Mr. McDonald or Mr. Green had entered into a common purpose either with each other or with the other three males in the group."

I'm going to go through that except in more accessible language in relation to the evidence.

The far easier and quicker way is the concept of common purpose. Common purpose, and His Honour is going to explain all of this to you, is where a group of people enter in to a common purpose to assault somebody, such as Myles Bruer. If there is a common purpose to assault somebody, the group gets held accountable for the actions of the group if one of them does another crime, such as the aggravated assault on Mr. Allen.

There is all sorts of evidence in relation to the common agreement. A common agreement, and His Honour will tell you about this, it doesn't have to be sitting down and working out like a football play. It can happen instantaneously on the spur of a moment.

The common purpose is borne out by that action, which in my respectful submission really isn't even in contention, that a common purpose to assault Myles Bruer and in the course of that struggle, in the course of that assault, in the course of that beating, Will Allen got his jaw broken, and that makes them each, along with Mr. Graham, liable for that. It doesn't matter if Graham did it. It didn't matter if both of them did it. That's the short answer to the whole case right there, but knowing me, you know you're not going to get the short answer to that question.

Common purpose, in my respectful submission, is a totally different route to convicting both of these individuals, which is a lot more straightforward and in my respectful submission, in some ways it doesn't even rely on any of the evidence, or very little of the evidence, if any, of Myles Bruer, Amelia, or Greg. Most of it is admitted or comes out of Mr. Graham or out of Mr. Green. And I'm going to go through that and it's not going to be long, but it's important and it's incredibly strong.

By the way, just another thing, there's this thing in law, again His Honour will instruct you, there's something, not all of you have to be satisfied beyond a reasonable doubt in regards to the fact they were all direct perpetrators. Not all of you have to be satisfied there were common purpose or liability route. You can be satisfied, all of you, of both of those, but four can be satisfied it was common purpose and six or five can be satisfied that they were direct perpetrators as long as you're satisfied beyond a reasonable doubt that both of these individuals had done what they're charged with.

[19] It is clear from Crown counsel’s closing address that he anticipated that the trial judge would be giving the customary “common purpose” jury instruction. The defence anticipated this as well. Both the Crown and the defence had provided statements of their respective positions to the trial judge, for inclusion in the jury charge, that were designed to complement the anticipated “common purpose” section of the charge.

The Pre-charge Conference

[20] There were two surprises for counsel. The first was the trial judge’s decision at the pre-charge conference, which began just after counsel’s jury addresses, that he would not provide the jury with the “common purpose” instruction.

[21] The trial judge initially based this decision on his understanding that assault and aggravated assault are too closely related for aggravated assault to constitute the “second offence” implicated in s. 21(2). In my view, this reason for not providing the “common purpose” jury instruction was incorrect, given this court’s decision in R. v. Vang (1999), 1999 2310 (ON CA), 118 O.A.C. 75, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 203.

[22] After hearing argument, the trial judge took the position that s. 21(2) was inapplicable for two additional reasons. The first was that the assaults were in “two timeframes”. He stated:

…what I took from [Ms. Clarke’s] evidence, is there was two timeframes from what she was seeing. She was seeing the assault, what I would call the first assault on William Allen, then she and Myles Bruer start going away at different speeds and different lengths or whatever it may be. She then looks back and then sees what I call the second assault taking place involving both accused.

[23] Second, he noted that Graham, the perpetrator of the first assault on Allen, had “left the scene.” The trial judge’s position inferentially was that the second confrontation was not sufficiently closely related to the assault on Bruer on which the Crown was relying to fall within the “common purpose”. The trial judge therefore declined to provide a common purpose instruction.

[24] As noted, the Crown and the defence had previously provided statements of their respective positions to the trial judge for inclusion in the charge based on the understanding that the common purpose instruction would be given. As a result of the trial judge’s decision at the pre-charge conference not to give the “common purpose” instruction, both sides were obliged to change the statements of their respective positions to be included in the jury charge. Just before the delivery of the charge, the Crown provided the trial judge with his position, slightly amended in the light of the trial judge’s decision not to charge on “common purpose”. The Crown’s revised summary dealt with “common purpose” in the following way:

Both Dustin McDonald and Brandon Green should be convicted of the aggravated assault that resulted in the maiming of Will Allen either as direct perpetrators as testified to by Amelia Clarke and Myles Bruer, or as parties to the offence by their agreement to assault Myles Bruer and his group.

[25] The Crown explained that the original statement of the Crown’s position for inclusion in the charge “was drafted as a common purpose being a separate purpose aside from assaulting Myles [Bruer], so I have got to change that.” The trial judge used the new language proposed by the Crown for its position.

[26] Given the trial judge’s decision not to charge on “common purpose”, the defence also submitted a revised summary, The new wording provided: “The prosecution has not proven beyond a reasonable doubt that Mr. Green was part of any agreement to assault anyone,” and: “The prosecution has not proven beyond a reasonable doubt that Mr. McDonald was part of any agreement to assault Myles Bruer and his group”.

The Jury Charge

[27] Counsel were surprised a second time when, despite the trial judge’s decision at the pre-charge conference that he would not provide the “common purpose” jury instruction, he inserted a short paragraph into the jury charge; it is underlined in the following excerpt:

In this case, there is more than one way for the Crown to prove Brandon Green's and Dustin McDonald's guilt of the crime charged in count number two [aggravated assault]. The Crown does not have to prove each one of these ways. One, any one, is enough. All of you do not have to agree on the same way as long as everyone is sure that one of the required ways has been proven beyond a reasonable doubt.

In law, a person commits an offence if he alone, or along with someone else or others, does everything necessary to constitute the offence.

A person also commits an offence if he does anything for the purpose of helping another person to commit the offence.

Anybody who actively encourages somebody else to commit an offence is as guilty of the offence as the person who actually commits it.

A person may also commit an offence by being involved with others in a joint criminal enterprise. If any one of the group commits an offence in carrying out their original enterprise, any other member of the group who knew, or should have known, that the offence would likely be committed by a group member carrying out their original design, is guilty of the offence the other person actually commits.

Where a criminal offence is committed by two or more persons, each may play a different part. If they are acting together, as part of a joint plan or agreement to commit the offence, each may be found guilty of it.

It is important to remember, however, that although the accused have been charged and are being tried together, each is a separate individual who cannot be found guilty of any offence unless the evidence relating to him proves his guilt of that offence beyond a reasonable doubt. Each person is entitled to separate consideration. Each is entitled to have his case decided on the basis of his conduct and state of mind and from the evidence that may apply to him. [Emphasis added.]

[28] Later in the charge, the trial judge described the Crown’s position in the following words:

It is the Crown’s position, both Dustin McDonald and Brandon Green should be convicted of the aggravated assault that resulted in the maiming of William Allen, either as direct perpetrators as testified to by Amelia Clarke and Myles Bruer or as parties to the offence by their agreement to assault Myles Bruer and his group.

The evidence of that agreement comes from, number one, both Dustin McDonald and Brandon Green's dislike of Myles Bruer stretching back to high school.

Number two, the events of October 10th and 11th, 2008, at Bridges Tavern, which resulted in Brandon Green and Dustin McDonald having to leave that establishment early because of the confrontation with Myles Bruer and William Allen.

Number three, the lingering feelings of being riled up on the part of all the defendants' group resulting from the eviction that continued right up to their walking towards the pier on Bruce Street.

Number four, the actions of both Brandon Green and Dustin McDonald in standing side by side, remaining on the sidewalk, and walking directly into Myles Bruer as he held hands with Amelia Clarke.

It is the position of the Crown that this evidence either alone or in conjunction with the evidence of Leslie Lewis that she saw four to five males in front of her window before the attack, who later participated in the confrontation at two a.m. saying, "Let's go back to Bridges and get him," establishes a common intention to assault Myles Bruer and therefore makes both Dustin McDonald and Brandon Green guilty as parties to the aggravated assault on William Allen regardless of which one or combinations thereof of Dustin McDonald, Brandon Green, or Scott Graham caused the injuries.

The Positions of the Parties

[29] The appellants submit that trial judge erred in not properly explaining the law on s. 21(2) of the Criminal Code to the jury.

[30] The appellants argue that Crown counsel left the jury with the mistaken impression that all it had to do was to find that McDonald, Green and Graham had a common purpose to assault Bruer, and that this was sufficient to fix McDonald and Green with criminal liability for Allen’s broken jaw. The appellants argue that this “was a very powerful submission because it presented the jury with an attractively simple method for resolving a complicated case”.

[31] On appeal, the Crown asserts that there were three possible routes to criminal liability for McDonald and Green for aggravated assault: the first was “as principals, standing alone”; the second was “as co-conspirators in a plan or agreement on which they acted, to assault Allen, as a member of the Allen/Bruer group regardless of who did the actual kicking,” (inferentially referring to s. 21(1) of the Code); and the third was that under s. 21(2) of the Code, Graham, McDonald and Green shared the “common purpose” of assaulting Bruer with the attack on Allen being an objectively foreseeable probable consequence.

[32] The appellants point out that the Crown made a subtle shift in position in asking the trial judge to use the following phrase in his statement of the Crown’s position: “their agreement to assault Myles Bruer and his group” (emphasis added). The use of the underlined words had the effect of broadening the common purpose from the assault on Bruer alone to an assault on anyone in his group, including Allen.

Discussion

[33] The role of the trial judge in fashioning the jury charge and the function of the jury charge itself were set out by this court in R. v. J.S., 2012 ONCA 684, 296 O.A.C. 184, at paras. 34-40. As Watt J.A. put it in J.S., at para. 35: “Proper instructions leave the jury with a sufficient understanding of the facts as those facts relate to the issues the jury has to decide” (citations omitted). He added, at para. 36:

In the end, the jury must understand:

i. the factual issues to be determined;

ii. the legal principles applicable to the issues and the evidence adduced at trial;

iii. the positions of the parties; and

iv. the substantial parts of the evidence relevant to the positions of the parties on the issues to be decided.

[34] Although the trial judge may “take into account the closing addresses of counsel in deciding how to discharge his or her obligation to review and relate the evidence to the relevant issues”, a closing address does not relieve the trial judge of the obligation to ensure that “the jury is aware of the substance and understands the significance of the evidence to the critical issues in the case” (at para. 39). As this court said in R. v. A.(S.) (1992), 1992 7517 (ON CA), 76 C.C.C. (3d) 522, at p. 527: “trial judges are uniquely placed to, and, indeed are obligated, to tailor their instructions to the particular case.”

[35] The Crown’s address to the jury had the effect of leaving three different routes for members of the jury to find criminal liability on the part of McDonald and Green for aggravated assault. These were: first, as noted in the charge, “as direct perpetrators as testified to by Amelia Clarke and Myles Bruer, or [second] as parties to the offence by their agreement to assault Myles Bruer and his group.” But the Crown’s heavy emphasis in the jury address was on the third: “common purpose.”

[36] The jury heard nothing from the trial judge on “common purpose” and a very few words from him on the notion of criminal liability flowing from “common enterprise”. I repeat them here for convenience:

A person may also commit an offence by being involved with others in a joint criminal enterprise. If any one of the group commits an offence in carrying out their original enterprise, any other member of the group who knew, or should have known, that the offence would likely be committed by a group member carrying out their original design, is guilty of the offence the other person actually commits.

[37] The trial judge had not discussed with counsel his use of the expression, “joint criminal enterprise,” before he delivered the charge, and did not explain the term to the jury in his charge. The words in the preceding paragraph comprise the full extent of the trial judge’s charge on either “joint criminal enterprise” or “common purpose”. He provided no further guidance to the jury on the issue.

[38] There is considerable force in the appellants’ submission that the trial judge’s substitution of the language of “joint criminal enterprise” for the statutory language relating to common purpose in s. 21(2) leads to uncertainty around what the jury might have understood the “joint criminal enterprise” to have been. If the enterprise was the assault on Bruer, then the appellants submit that the assault on Allen could not properly form part of the joint criminal enterprise because of its separation in time and space: accordingly “the court cannot and should not be confident that the jury convicted the accused of aggravated assault on the right basis.”

[39] In the circumstances of this case, especially in light of the complexity of the facts, the number of participants in the fight, and the Crown’s emphasis on “common purpose” in its jury address, once the trial judge raised the prospect of a “joint criminal enterprise” route to liability, he was obliged to provide a legally adequate jury instruction on s. 21(2). To ground a conviction on the basis of common purpose, the jury was required to find the three elements of the offence: (1) an agreement to carry out an unlawful purpose, (2) the existence of a second offence, and (3) the requisite degree of knowledge that another participant would commit that second offence.

[40] In this case the Crown’s basic allegation in relation to common purpose was that Graham, McDonald and Green agreed to carry out the unlawful purpose of assaulting Bruer. The jury should have been instructed, in determining whether there was any such agreement on the evidence, to take into account what each person did or did not do, how they did it and any communications between them.

[41] The second element to be proven by the Crown in relation to common purpose was that the aggravated assault on Allen was the second offence related to the common purpose. The instruction should have indicated that the aggravated assault on Allen must have occurred in the course of carrying out the original unlawful purpose of the assault on Bruer. As Justice David Watt states in Watt’s Manual of Criminal Jury Instruction on Common Purpose, 2005 at p. 257: “The [second] offence committed, in other words, must be one that the members of the original agreement did not set out to commit, but one that still took place in the course of carrying out their original agreement or plan.”

[42] The third element required by s. 21(2) is proof that the person having the intention in common knew or ought to have known that the commission of the aggravated assault would be a probable consequence of carrying out the common purpose. The trial judge should have addressed the prospect that Graham, McDonald and Green each knew or ought to have known that one or more of them would assault Allen, and also that one or more of them would commit an aggravated assault, all as part of the original unlawful purpose of assaulting Bruer.

[43] The requirement that a criminal jury be unanimous applies only to the essential elements of the offence and not to the facts that establish those elements: see R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652; R. v. G.M.L., 1999 BCCA 467, 128 B.C.A.C. 102. This influenced the legal context within which the charge must be assessed.

[44] In this case, had the jury been properly instructed, some or all of its members might well have concluded that the aggravated assault on Allen was not sufficiently related in time and space to the assault on Bruer to constitute that second offence.

[45] The trial judge declined to give a “common purpose” jury instruction on the basis that, in his view, the original assault and the aggravated assault were too separate in time and space. This perspective on the “common purpose” theory was not put to the jury: but such an interpretation of the facts is not, on its face, a completely implausible basis for finding that no “common purpose” existed on the facts. In my view, whether the assault and the aggravated assault were too separated in time and space was an issue of fact that ought to have been left to the jury to decide.

[46] In short, the trial judge’s charge did not accomplish the essential purposes of a jury charge as laid out in R. v. J.S. As a consequence of the inadequate jury instruction in this case, those jury members who were only prepared to take the “common enterprise” route to criminal liability could well have concluded, on proper instructions, that this route was not factually available on the evidence. This is a reasonable prospect on the facts, and therefore renders the jury verdict unreliable: see R. v. Denbigh(1993), 1993 1023 (BC CA), 21 B.C.A.C. 241.

[47] This is a sufficient basis on which to allow the appeals of McDonald and Green.

[48] The parties also addressed this court on the admissibility of certain hearsay evidence and its treatment in the jury charge.

The Admissibility of a Statement Heard by Leslie Lewis

[49] Leslie Lewis lives in a second storey apartment near the tavern. Her evidence was that after 1:00 a.m., she “heard a rowdy group of individuals outside…and there was just a very loud ruckus.” She looked out of the bedroom window and saw three or four males. She heard: “just a lot of yelling but specifically ‘let’s go back to Bridges and get him.’” She described the mood of this group as “very elevated, very aggressive, a lot of adrenaline, almost a growling type of yelling and the comments towards going back to Bridges.” At that time, however, the group was walking away from Bridges Tavern. She testified that later she was awakened again about an hour later by the fight itself involving the same group of individuals she had seen earlier and some others.

[50] The appellants submit that the statement, “let’s go back to Bridges and get him,” was hearsay and was presumptively inadmissible.

[51] The Crown relied on Ms. Lewis’s evidence that she heard the statement. In his jury address, Crown counsel recited this evidence from Ms. Lewis, although he noted that at the time the statement was made, the group was actually heading away from Bridges. The Crown then made the following submission to the jury on this evidence:

There are several identifiers involved in this. There is the fact that they were all male, the fact of a group between three and five, the fact that they were aggressive males, growling, yelling. We know from Scott Graham that they were all riled up. And there’s a him involved. We know that there is Myles Bruer was the major antagonist in the eyes of this group [sic].

[52] The Crown observed that Ms. Lewis had “no axe to grind,” and ultimately linked this evidence to his argument that the group members had a “common intention”.

[53] Defence counsel for Mr. Green made the following comment to the jury on Ms. Lewis’s evidence:

Ms. Lewis testified that she heard somebody from her upstairs bedroom window on Louisa Street saying, “let’s go back to Bridges and get him.” Now, whether or not she could identify the group is debatable, but the group, whoever she heard say that, didn’t go back to Bridges Street, they turned south and walked up Bruce Street, away from Bridges Tavern. So there is no evidence that even if somebody did say that, that they acted on that suggestion.

[54] Defence counsel for Mr. McDonald described Ms. Lewis as “very even-handed”. He submitted that she was not especially precise in her evidence and was unable to identify the person who made the statement, and added:

Even if you assume, ladies and gentlemen, even if you assume that someone said, “let’s go back to Bridges to get him,” and if you assume that in the company of Mr. McDonald, we don’t jump from there to a conclusion that there was some plan or common purpose or common goal shared by Mr. McDonald to go beat anyone up. The Crown has to prove that, and the evidence comes down to this comment that Ms. Lewis says she heard from an unknown person, of unknown description, at an unknown time, where her focus was on her store and the busy long weekend. That’s not proof to the threshold required.

[55] In his jury charge, the trial judge briefly reviewed the testimony of Ms. Lewis without commenting on the use to which the jury could put the statement.

The Positions of the Parties on the Admissibility of the Statement

[56] The Crown’s position is that the statement was not hearsay. The Crown asserts the following:

The value of the statement stems not from the truth of its contents but from the fact it was made by one of the appellants’ group. The jury was not invited to use that statement as proof of the truth of any earlier events. Instead, the Crown offered this as the unidentified speaker’s invitation to his group. A verbal transaction such as this is not hearsay. The rule against hearsay is not a per se presumptive bar against admission into evidence of any words ever spoken outside the courtroom. It is a limited rule against a specific use of evidence about words spoken outside the courtroom.

[57] The appellants argue that the statement is hearsay and since it was not tested under the criteria of necessity and reliability, it should not have been admitted. The appellants assert that the burden is particularly high in this case where the identity of the declarant is unknown: further, if reliability is established, the Crown has the additional burden of attributing the statement to the appellants. They assert that: “the Crown appeared to rely on the hearsay utterance in this case to establish a common group intention – i.e. to go back and renew the hostilities with the Bruer/Allen/Clarke group.” They argue that the statement is only admissible under the “common intention for co-conspirators exception to the hearsay rule, or through the principled exception.”

Discussion

[58] The Crown’s purpose in introducing Ms. Lewis’s evidence of the statement was to help establish that the common intent of the members of the appellants’ group was to assault Bruer. For the Crown’s purposes, it would have been no different had the declarant said, “We are going to Bridges to assault Bruer.” The Crown sought to prove both the statement itself, and the intention of the declarant to assault Bruer, which the Crown sought to have the jury impute to the group.

[59] This is not a case where the statement was adduced for the non-hearsay purpose of showing the statement’s impact on the recipient: see e.g. R. v. Delafosse (1988), 1988 1278 (QC CA), 47 C.C.C. (3d) 165 (Que. C.A.), aff’d 1990 153 (SCC), [1990] 1 S.C.R. 114; R. v. Eisenhauer (1998), 1998 NSCA 60, 165 N.S.R. (2d) 81, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 144. In those cases, whether the declarant was mistaken or dishonest was irrelevant, and therefore so were the concerns underlying the hearsay rule. The out-of-court statements were used to show their effects on someone else, and not to prove the truth of the matter asserted by the declarant.

[60] In my view, in this case the Crown was attempting to adduce the truth content of the statement: the intention of the declarant to assault Bruer, which the Crown urged the jury to impute to the group. Since the statement was tendered to prove the truth of its contents, it is presumptively inadmissible hearsay.

[61] A somewhat similar fact pattern is found in R. v. Middleton, 2012 ONCA 523, 294 O.A.C. 82, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 423. In that case the appellant was part of a group that assaulted a group of Asian fishermen. As Feldman J.A. noted at para. 2:

The unknown declarants said that they were going “nip-tipping” and that that meant that they were “going to push them in the river.” The word “nip” was described in the evidence as a derogatory reference to Asian people. Some of the victims’ group were of Asian descent.

[62] The parties in Middleton agreed that the statement was hearsay, but differed on its admissibility. The trial judge admitted the statement under the principled exception to the hearsay rule. He found that the evidence was both necessary and reliable. Feldman J.A. stated at para. 45:

With respect to reliability, the trial judge found that the pushing incident corroborated and therefore rendered sufficiently reliable the statements as evidence of the common intention. He further found that the statements were reliable in terms of their applicability to the appellant specifically based on the anticipated corroborating evidence of the appellant's leadership in the incident and his direct involvement as one of the pushers. Therefore, I do not find that the trial judge erred in his application of the principled exception.

[63] By contrast, in this case, the group did not immediately do what the declarant suggested, but did exactly the opposite by continuing to walk away from Bridges Tavern. The group returned about an hour later. Based on the separation in time and space, I conclude that, taken on its own, the reliability of the unidentified declarant’s statement was at issue under the principled exception to the hearsay rule. Perhaps because no one objected to the admissibility of the statement at trial, the trial judge did not address the use, if any, to which the statement could be put by the jury.

[64] In my view, the statement appears to fall within the rule in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, to the effect that hearsay statements of common intention are not admissible to prove the intentions of a third party under the “present intentions” exception to the hearsay rule. See also Middleton at paras. 35-37.

[65] In the circumstances of this case, the admissibility of the undisclosed declarant’s statement put in through Ms. Lewis is an issue to be addressed at the new trial if the Crown seeks to introduce it.

Disposition

[66] For these reasons I would allow the appeals of McDonald and Green, set aside their convictions for aggravated assault and order a new trial on that charge.

Released: June 26, 2013 (“M.R.”)

“P. Lauwers J.A.”

“I agree. M. Rosenberg J.A.”

“I agree. Gloria Epstein J.A.”