COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louangrath, 2016 ONCA 550

DATE: 20160708

DOCKET: C59488

Cronk, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Khamea Louangrath Appellant

Samuel Walker, for the appellant

Andreea Baiasu, for the respondent

Heard: January 6, 2016

On appeal from the convictions entered by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a jury, on March 4, 2014, and from the sentence imposed on September 23, 2014, with reasons reported at 2014 ONSC 2120.

Tulloch J.A.:

A. introduction

[1] The main issue in this appeal is whether hearsay evidence that satisfied the past recollection recorded traditional exception to the hearsay rule was nonetheless so unreliable that it should have been excluded at trial.

[2] The appellant was involved in an alleyway beating and parking lot assault outside The Drink nightclub in Ottawa’s ByWard Market.

[3] The head of security for the nightclub, Tim McCarthy, witnessed the alleyway beating. He testified about it at trial, but had no present recollection of whether the appellant participated in punching and stomping on the victims, Mike Morrice and Brad Fradette.

[4] The trial judge admitted a portion of an incident report McCarthy prepared within a few days after the assault under the past recollection recorded exception to hearsay. The admitted portion of that report stated that “[t]he Asian guy from Group A also started punching the other guy from Group B.” Evidence of McCarthy’s basis for identifying the appellant as the “Asian guy” was otherwise provided at trial.

[5] A jury found the appellant guilty of assault causing bodily harm, and two counts of forcible seizure for the alleyway beating. The appellant also pleaded guilty to one count of simple assault for his participation in the parking lot assault. He was acquitted of two counts of robbery. He received a global sentence of three-and-a-half years’ imprisonment, less credit for pre-sentence custody.

[6] The appellant appeals his convictions and sentence. In addition to his challenge of the trial judge’s admission and use of McCarthy’s recorded recollection, he argues that evidence of a phone call from a person identifying himself as the appellant and reporting damage to a white pick-up truck the day after the beating was mishandled. Finally, he submits that the sentence imposed was manifestly unfit and the result of two errors in principle.

[7] For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.

B. background

[8] The parking lot assault and alleyway beating took place on April 23, 2011.

[9] About an hour before the alleyway beating, Morrice was assaulted in the parking lot outside The Drink nightclub. Morrice, Fradette, and another friend were standing in a parking spot when a white pick-up truck pulled up. The driver asked them to move. They refused. The driver got out of the truck, punched Morrice in the face, got back in the truck, and parked nearby. Morrice and Fradette could not tell how many people were in the white truck, although they saw at least one passenger. The appellant pleaded guilty to participating in this assault, although he did not specifically admit that he was the driver of the truck or the person that punched Morrice in the face.

[10] The parking lot assault was reported to police, and an officer attended the scene. Morrice led him to the white pick-up, where the officer noted that it was a white Ford F-150 truck. A vehicle check showed that it was registered to Phouthone Louangrath, the appellant’s brother.

[11] Sometime after the officer left, the white truck was vandalized.

[12] Morrice and Fredette went into The Drink nightclub. A short while later, they saw a man they identified as the driver of the white pick-up truck enter the nightclub with a group of people, some of whom, like the appellant, were Asian males.

[13] The driver pointed out Morrice and Fradette, and the group started moving towards them. Morrice and Fradette were then grabbed and pushed towards a side exit and out into an alleyway, with their hands pinned behind their backs.

[14] McCarthy, head of security at The Drink, noticed the appellant’s group when they entered, which he referred to as Group A. He recognized two individuals from that group as customers who would regularly come to The Drink together. One was a white male, and the other an Asian male. McCarthy would go on to identify the appellant as this Asian male, whom he referred to as the “Asian guy”, a few months after the assault in a photo line-up.

[15] Group A also included several bouncers from a nearby nightclub called Industry who were wearing their security shirts, and some other individuals that McCarthy did not know or recognize. McCarthy also did not know or recognize Morrice or Fradette, whom he referred to collectively as Group B.

[16] Morrice testified that outside in the alleyway the driver of the truck started punching him in the face as two other people pinned him against a brick wall. Fradette testified that Morrice’s head was being driven into the brick wall as he was repeatedly punched. Fradette was also punched and pushed, ending up on the ground in a “turtle” position, trying to protect his head while being stomped on.

[17] McCarthy followed the groups into the alleyway. He testified that he saw the “white guy” from Group A sucker-punch one of the individuals from Group B. Although he had no present recollection at trial, in the statement he prepared days after the assault he recorded that the “Asian guy” then started punching the other guy from Group B. He testified that both individuals from Group B were then stomped on by five or six members of Group A. According to McCarthy, the Industry bouncers were just watching the beating without helping the situation.

[18] McCarthy intervened, the alleyway beating ceased, and the appellant’s group ran down the alleyway towards the Industry nightclub. As they were leaving, the appellant apologized to McCarthy, saying something along the lines of “sorry, but those guys did $3,000 or $4,000 worth of damage to my truck.”

[19] The next day, an individual who identified himself as the appellant called police reporting damage to his white pick-up truck, the same truck police observed after the parking lot assault, although the caller specified that the truck was registered to his brother.

C. conviction appeal

(1) The past recollection recorded grounds – McCarthy’s statement

[20] As an out-of-court statement that was tendered for the truth of its contents, McCarthy’s statement was hearsay evidence.

[21] The admission of hearsay evidence is governed by the following framework set out by McLachlin C.J.C. in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15, and reaffirmed in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 42, and R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[22] In this appeal, the appellant concedes that McCarthy’s statement properly fell within the past recollection recorded traditional exception to the hearsay rule. And he does not challenge that traditional exception.

[23] Rather, he argues that this is one of those “rare cases” in which the evidence should have been excluded because threshold reliability was lacking in the circumstances of this case. He also argues that there was a risk that the jury misused the portion of the admitted statement that was adduced to provide narrative context.

[24] I do not agree, and would dismiss this ground of appeal.

(a) Facts

[25] The significance of McCarthy’s statement is that it was the only evidence from McCarthy that the appellant engaged in any of the punching or kicking during the alleyway beating, and McCarthy was the only witness that identified the “Asian male” as being the appellant. Unlike McCarthy, neither Morrice nor Fradette were shown a photo line-up. They were only able to identify the assailant as the driver of the white pick-up truck.

[26] At trial, the following portion of McCarthy’s statement was read into the record:

I remember seeing the white guy from Group A all of a sudden sucker punch one kid from Group B. The Asian guy from Group A also started punching the other guy from Group B. So the two kids started getting stomped by about 5 or 6 guys from Group A. I believe the Industry guys were just watching, I don't recollect them actually fighting anybody but they weren't helping the situation. [Emphasis added.]

[27] The underlined sentence was the portion that was admitted as past recollection recorded, while the remaining sentences were read to provide context for it.

[28] Although Crown counsel at trial alerted the appellant and the trial judge that he may bring an application to admit this hearsay statement, the necessity of doing so did not unfold until McCarthy’s cross-examination and re-examination.

[29] Initially, in examination-in-chief, McCarthy had testified that the appellant was “punching and stomping one or both of the two individuals” and “was participating in that”. But he said he could not remember more specific details, such as the angles or who was doing what.

[30] When cross-examined, however, McCarthy acknowledged that although he could visualize “the white guy” sucker punching one of the individuals, he could not picture exactly what “the Asian guy” was doing. He did recall that both men were there for the punching and stomping that occurred. But, at trial three years after the incident, he could not remember the appellant’s specific involvement in the beating.

[31] On re-examination, McCarthy confirmed that he did not have a present recollection of the details of the appellant’s specific participation in the beating and was relying on what he had written in his statement. He clarified that he could recall the appellant hovering over one of the individuals at the end of the assault, and the appellant’s comment that the assault was in retaliation for the damage done to his truck.

[32] On a voir dire to determine the admissibility of the statement as past recollection recorded, the following evidence was provided:

• McCarthy wrote the statement himself within a few days of the incident, probably April 24, 2011, which was the next day, but possibly as late as April 28, 2011. He testified the events were fresh in his mind at the time.
• McCarthy had not spoken with his employer about the incident before preparing his statement, other than speaking to his manager the night of the incident, when he advised that he would prepare a statement.
• McCarthy was not under the influence of alcohol when he wrote the statement or on the night of the incident.
• As part of his duty as head of security, McCarthy was obliged to prepare such statements for his employer on any incident that occurred under his watch.
• It was company policy to keep such statements so that they would be available for the police. McCarthy realized the police might be interested in the incident that evening.
• The original statement that was being tendered, was typed, clear, printed on his home computer, and signed.
• McCarthy testified that when he prepared the statement he was being truthful and the details of the events that he included in the statement were clear in his mind. He did not include anything in his statement about which he was not clear.

[33] The trial judge found that McCarthy’s statement satisfied all four conditions for admission of past recollection recorded: it was a reliable record, it was prepared in a timely manner, McCarthy provided a present voucher as to its accuracy, and it was necessary because McCarthy had a current absence of memory.

[34] Defence counsel also challenged the statement’s admission on the basis that its prejudicial effect outweighed its probative value.

[35] The trial judge disagreed. She found the evidence was highly probative as it was from an independent, uninvolved observer, who had a close vantage point, and had use of his full faculties at the time of the incident. She held that any prejudice that arose from the appellant’s inability to fully cross-examine McCarthy on his observations at the time of the attack could be reduced by instructing the jury that this was a lower form of evidence that should be given extra scrutiny, an instruction she would later provide.

[36] The trial judge noted that defence counsel would still be able to cross-examine McCarthy on his vantage point and on the composition of the appellant’s group, including how many of the men were of Asian descent, since he had a current memory of those aspects of events. Defence counsel was granted the right to cross-examine McCarthy again “to explore issues of credibility and reliability relating to the content of the statement.”

(b) Discussion

[37] First, I will address the appellant’s argument that this is a rare case in which threshold reliability was not established even though a traditional hearsay exception was satisfied. Then, I will explain why I am not persuaded that there was any realistic risk of misuse by the jury of the narrative portions of the adduced statement.

(i) Is this a rare case in which threshold reliability was not met by a hearsay exception?

[38] Four particular reliability concerns arise from the unavailability of contemporaneous cross-examination in court, namely the inability to test the declarant’s (i) perception, (ii) memory, (iii) narration, and (iv) sincerity: Khelawon, at para. 2; Baldree, at para. 31.

[39] In Baldree, at para. 32, Fish J. briefly elaborated on these concerns as follows:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. [Emphasis in original.]

[40] The traditional exceptions to hearsay often address these concerns in two ways. The first way is “to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon, at para. 62. The second way is “to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”: Khelawon, at para. 63.

[41] These two methods for establishing threshold reliability are not mutually exclusive, although when the declarant is available for cross-examination, the focus is on the second method, which is demonstrating that the truth and accuracy of the statement can be sufficiently tested: R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22.

[42] Meeting the requirements of the well-established past recollection recorded hearsay exception will generally be conclusive on the admissibility of the tendered evidence, without any further consideration of threshold reliability. That is because its essential conditions and the declarant’s availability for cross-examination address the hearsay concerns on reliability.

[43] The essential conditions for the past recollection recorded exception were set out in R. v. Richardson (2004), 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.), by O’Connor A.C.J.O., at para. 24, as follows:

1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

[44] Three of these conditions are grounded in establishing threshold reliability – namely, the ‘reliable record’, ‘timeliness’, and ‘present voucher as to accuracy’ conditions – while the ‘absence of memory’ condition addresses the necessity of using the hearsay evidence. Significantly, for the admission of this type of hearsay evidence, the declarant is able to be tested under oath through cross-examination about the circumstances under which the recorded statement was made, and on the basis upon which he or she vouches that the recording of events is accurate.

[45] Though not equivalent to contemporaneous cross-examination of present recollections, meeting those conditions, together with the declarant’s ability to testify about them, assuage the hearsay reliability concerns such that, when necessary, this evidence should be admitted. The trial judge should then instruct the jury that this is a lower form of evidence that calls for extra scrutiny.

[46] In this case, the past recollection recorded conditions were met, as found by the trial judge. The original record that was tendered, which McCarthy wrote himself and signed, was a reliable recording that was made while the events were fresh in his mind. And McCarthy vouched for its accuracy. He testified that he had no doubt that he recorded his statement accurately and that he did not include anything in it about which he was not clear at the time. The appellant was able to, and did, test McCarthy on these indicators of reliability and other aspects of his testimony.

[47] A finding that the past recollection recorded conditions are met, as occurred here, should be determinative of admissibility in virtually all cases. As explained in Mapara, at para. 30, an approach that requires trial judges to scrutinize pieces of hearsay evidence falling under traditional exceptions for reliability concerns in every case would undermine the efficiency of those exceptions by allowing them to devolve into a “case by case vetting more resembling the ultimate reliability inquiry that is for the jury, than the threshold reliability inquiry relevant to admissibility.”

[48] Here, the appellant argues that this is a “rare case” because of the following concerns that he says are extraneous to the Richardson formulation of past recollection recorded: (i) the statement was not made under oath; (ii) McCarthy’s statement may have been tainted by his discussions with other parties, since at trial McCarthy acknowledged that he spoke to his manager and possibly others before he prepared the statement; (iii) the contents of his statement were so vague on the identity of the assailant that it was possible he was filling in his memory by misidentifying the “Asian guy” who threw a punch among the other Asian males in the group; (iv) it was a chaotic scene in the alley and it was not certain McCarthy had a clear vantage point; and (v) the statement “the Asian guy from Group A also started punching the other guy from Group B” was vague in terms of who “the other guy from Group B” was and what “started punching” meant.

[49] In my view, the trial judge’s finding that the evidence satisfied the traditional exception was determinative in this case. There were no special reliability concerns that called for a second analysis of the admissibility of this evidence under the principled approach.

[50] The first two of the appellant’s concerns – no oath and possible tainting – are taken into consideration by the past recollection recorded exception. The reliability concerns emanating from the lack of an oath are mitigated by the declarant’s testimony under oath that he was being truthful and accurate at the time the statement was recorded, and by the trial judge instructing the jury that such evidence is a lower form of evidence because it was not given under oath. In this case, McCarthy did provide such testimony under oath and the trial judge did instruct the jury in that fashion. I note also that, in this case, the statement had an additional marker of reliability since it was prepared under a legal duty in the ordinary course of the declarant’s employment.

[51] Concerns about possible tainting are addressed under the “timeliness” condition. Although this condition was titled “timeliness” in Richardson, it is also described as the “record made when declarant’s memory sufficiently fresh and vivid to be probably accurate”: see S. Casey Hill, David M. Tanovich, Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (2016-1), 5th ed. (Toronto: Canada Law Book, 2013) at para. 21:20.20.50.50.

[52] Relevant factors for making this determination include whether the memory may have been tainted, the state of the declarant’s mental capacity, whether the event observed was routine or exceptional, and whether the declarant was under the influence of alcohol or drugs: McWilliams’ Canadian Criminal Evidence, ibid.

[53] As O’Connor A.C.J.O. emphasized in Richardson, at para. 27, “The appropriate length of time will vary with the circumstances of the case. The key is whether the events were fresh in the declarant’s mind.”

[54] The trial judge acknowledged McCarthy’s evidence about speaking to others before preparing his statement, but did not consider it again in her analysis of timeliness. In my view, it was unnecessary for her to do so. There was no realistic possibility of tainting established by the evidence in this case. The trial judge summarized McCarthy’s evidence as follows:

He was clear that he had not spoken to his employer about the events prior to preparing the statement, aside from speaking to the manager of The Drink at The Drink on the night [in question, April 23, 2011], because the manager happened to be in his office at The Drink at the time. Mr. McCarthy had advised the manager that he would prepare a statement describing the events of that evening.

[55] Of note, the appellant was not inhibited by the hearsay nature of the statement in this regard. McCarthy had a present recollection surrounding the circumstances of the making of the statement. The appellant had the opportunity to cross-examine him about any possible tainting. Yet, there was nothing in the evidence to suggest that there were any other parties who might have had an interest in falsely or unfairly implicating the appellant such that they spoke to McCarthy within a couple of days after the assault to influence his statement. Nor was there any evidence that suggested McCarthy’s memory had been tainted, or was not otherwise sufficiently fresh and vivid as to be probably accurate.

[56] I am therefore satisfied that this concern was adequately dealt with within the Richardson framework for the past recollection recorded exception.

[57] The remaining reliability concerns of vagueness and the witness’ vantage point raised by the appellant were all properly left to the jury as questions of ultimate reliability. At trial, McCarthy was cross-examined at length on his vantage point during the beating. He had a present recollection of where he was during this event, which allowed defence counsel to emphasize to the jury that he was right in the middle of the commotion and did not have a clear view.

[58] And, while the statement “[t]he Asian guy from Group A also started punching the other guy from Group B”, is vague on its own, it was not vague when viewed in the context of McCarthy’s testimony as a whole. Contrary to the appellant’s submissions, the past recollection recorded was not used as identification evidence. Rather, it was used to establish that the individual that McCarthy identified as the “Asian guy” physically participated in the assault. McCarthy’s recognition of the appellant was otherwise established.

[59] McCarthy recognized the “Asian guy” as a regular customer who came in together with the “white guy”. And he was able to pick him out of a photo line-up. McCarthy did not know or recognize anyone else in the appellant’s group other than the “Asian guy” and the “white male” duo, as well as the Industry bouncers who wore distinctive shirts with the Industry logo.

[60] On this point, McCarthy had a present recollection about his identification of the appellant in contrast to other Asian males in his group. This was the subject of cross-examination at trial. Any concern about McCarthy’s ability to distinguish the appellant from others was then properly left to the jury to resolve as a matter of ultimate reliability.

[61] Along the same lines, I do not share the appellant’s concern about the vagueness of who the “other guy” was and what “started punching” meant. McCarthy had a present recollection of the “white guy” sucker-punching one of the two victims; there were two people in Group B, so the “other guy” was the one who had not been sucker-punched. In the context of the evidence as a whole, it was clear that this was Morrice.

[62] In addition, given that the hearsay was limited to one sentence and that the witness had a present recollection about everything else surrounding that sentence, it is hard to imagine how the cross-examination would have been any different if McCarthy had testified directly about the contents of the sentence in question.

[63] For these reasons, I am of the view that the nature of the admitted past recollection recorded evidence did not raise reliability concerns that needed to be addressed under the principled approach to hearsay evidence. It was properly admitted under the past recollection recorded exception. I would dismiss this ground of appeal.

(ii) Were the narrative portions of McCarthy’s statement misused?

[64] The appellant argues in the alternative that the manner in which the past recollection recorded statement was addressed at trial created a risk that the jury misused that evidence. He notes that portions of the statement that were entered were clearly inadmissible. Worse, in his view, these inadmissible portions were prior consistent statements that the Crown used to artificially enhance McCarthy’s credibility.

[65] While the Crown’s submissions on this point appear to have been based on a misunderstanding of what exactly was the admitted past recollection recorded, I would reject this ground because I do not believe that the appellant was prejudiced by the Crown’s submissions.

[66] As noted earlier, the admitted past recollection recorded was just the one sentence about the appellant punching one of the victims. The surrounding sentences were then read in as narrative to provide context for that sentence, without objection from defence counsel.

[67] Since McCarthy had a present recollection of the events in those statements, and testified accordingly, the narrative sentences from his statement were not admissible for the truth of their contents. For ease of reference, I have reproduced the portion of the statement that was read in at trial, numbered the sentences and underlined the impugned portions:

(1) I remember seeing the white guy from Group A all of a sudden sucker punch one kid from Group B. (2) The Asian guy from Group A also started punching the other guy from Group B. (3) So the two kids started getting stomped by about 5 or 6 guys from Group A. (4) I believe the Industry guys were just watching, I don't recollect them actually fighting anybody but they weren't helping the situation.

[68] In his submissions, Crown counsel drew it to the attention of the jury that because McCarthy did not remember the details of his statement anymore, this piece of evidence required extra scrutiny. He advised the jury that one way of giving evidence extra scrutiny is to look for corroboration from other evidence. He then went through each of the four statements that were read in, and pointed out any corroboration for them provided by other witnesses at trial. This was despite the fact that McCarthy actually did have a present recollection of the narrative sentences, and thus they did not require extra scrutiny. Defence counsel offered no objection to these submissions at trial.

[69] For the first sentence, Crown counsel pointed out that there was no corroboration. He then highlighted, on the actual past recollection recorded sentence, that both Morrice and Fradette testified that the appellant punched Morrice, although they did so by identifying him as the driver of the white pick-up truck. Crown counsel explained to the jury how McCarthy was not just identifying any “Asian guy”, but rather had recognized him as the “Asian guy” who was part of a pair including the “white male”. On the third and fourth sentences, Crown counsel noted that Morrice and Fradette testified that there were a number of people involved and accepted defence counsel’s suggestion that some people were just standing at the sidelines.

[70] While it was technically improper to treat those narrative statements as admissible for the truth of their contents, given that McCarthy actually testified accordingly, there was no prejudice to the appellant in that regard.

[71] Importantly, the narrative statements were never compared to McCarthy’s testimony at trial. This was not a case in which the narrative statements were used as a prior consistent statement to bolster the credibility of the witness’ in-court testimony on the same evidence.

[72] Nor did the Crown make any ‘rising tide lifts all boats’ type of argument suggesting that the corroboration of the narrative sentences raised the reliability of the past recollection recorded sentence. Rather, the Crown sought to offer corroboration individually for all the specific details it appears to have mistakenly thought called for extra scrutiny. Based on my reading of Crown counsel’s submissions, I am satisfied that no such misuse would have occurred.

[73] Of course, it would have been preferable for Crown counsel to identify the specific passage that required extra scrutiny and address any corroboration of the other passages separately. Arguably though, the effect of counsel’s submissions was to suggest that the jury ought to treat the evidence from the narrative statements with more caution than was actually due.

[74] In my view, as a whole, the manner in which the past recollection recorded evidence was addressed at trial would not have led the jury to misuse it. I would dismiss this ground of appeal.

(2) The phone call evidence ground

[75] The appellant submits that the recorded phone call to police the day after the alleyway beating, which purported to connect the appellant to the white truck, was also mishandled by the trial judge.

[76] He says that the jury was not properly instructed on the procedure set out in R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, which calls for the trier of fact to first determine whether the statement was made by the accused before making any use of that evidence. Had the jury been properly instructed, he submits, it is not inevitable that they would have concluded that the appellant did in fact make that call. In turn, the phone call evidence would have been inadmissible hearsay, and the jury may well have come to a different verdict.

[77] I disagree. The jury was properly instructed on this evidence and, in any event, the identity of the appellant was clear and effectively conceded by defence counsel.

(a) Facts

[78] The significance of the phone call evidence is that, as noted above, Morrice and Fradette identified Morrice’s assailant in the alleyway beating as the driver of the white pick-up truck from earlier that night. This provided an alternate route for the jury to identify the appellant, apart from McCarthy’s evidence.

[79] That phone call took place the day after the assaults, when the Ottawa police service non-emergency line received a call from a person identifying himself as Khamea Louangrath, the appellant.

[80] The person provided the same address, date of birth, as well as cell phone and home phone numbers as those of the appellant. The purpose of the call, he said, was to report the damage done to a white Ford F-150 pickup truck at St. Patrick and Cumberland, which is three blocks away from where the truck was parked after the parking lot assault.

[81] The caller indicated that he had only noticed the damage the day after parking the vehicle downtown the night before. He also provided the licence plate number and added that he had been downtown the night before when he had had too much to drink. He explained that he had not wanted to drive home so he left the truck there overnight. Specifically, he said that he went to a bar at 11:30 p.m. the night before and only got back to the truck to find it damaged at 12:30 p.m. the next day, just a few minutes before the call.

[82] The caller then described the damage in some detail, stating that it looked like the truck had been scratched, kicked, and hit with a rock, but that he did not know who would want to damage his truck. He added that he needed a police report number, as requested by his insurance company.

[83] Within a few minutes, the operator called back to seek clarification about the registered owner of the vehicle. The caller again identified himself as Khamea Louangrath and stated that the truck was registered under his brother’s name, whose first name he correctly spelled as Phouthone. He said that he did not have his brother’s date of birth. Ministry of Transportation records confirmed the information provided in the call, including the appellant’s date of birth and address, and the fact that the vehicle in question was a 2008 Ford pick-up truck registered to Phouthone Louangrath, who lived at the same address as the appellant.

[84] At trial, in closing submissions before the jury, defence counsel stated that, while this was for the jury to determine, the evidence suggested that it was the appellant who made the call to Ottawa police reporting damage to the truck. Defence counsel argued that the fact that the appellant called the police pointed to his innocence, in the sense that someone anticipating criminal charges would not volunteer to call the police about a car that was not even registered to him, and give them all their correct information.

(b) Discussion

[85] The procedure in Evans is employed only in situations where there is some doubt as to the identity of the declarant who is purported to have made the out- of-court statement and some evidence to permit the issue to be put to the jury. For those cases, Sopinka J. in Evans, at pp. 668-69, set out a two-pronged analysis to be followed:

First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused.

If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt.

While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.

[86] In this case, I am satisfied that the trial judge correctly charged the jury on the phone call evidence. Although she did not set out both prongs of the Evans procedure when first discussing the phone call evidence, her charge as a whole functionally instructed the jury on how they should approach this evidence.

[87] First, under the heading “videotape and audiotape recordings and transcripts”, the trial judge instructed the jury that it was for them “to decide whether or not the person who identified himself in the telephone conversation as Khamea Louangrath was one and the same person as the accused”.

[88] Shortly thereafter, under the heading “out of court utterances and statements of Khamea Louangrath”, the trial judge repeated that it was for the jury to determine whether the appellant had made any out-of-court statement. Then, she instructed the jury that “unless you decide that Mr. Louangrath made a particular remark or statement, you must not consider it as evidence that supports a finding of guilt”.

[89] As noted above, defence counsel effectively conceded that the appellant made this phone call when he told the jury that the evidence suggested that he had. It is not surprising that he made no objection to the jury charge.

[90] Nor is it surprising that he would agree that the evidence suggested the appellant made the call. The evidence was overwhelming on this point. The caller provided not only the appellant’s correct name, birth date, address, and telephone numbers, but also a specific and accurate description of the truck, which included the exact model, year and edition, as well as the correct spelling of the truck’s registered owner’s name, who was the appellant’s brother. The caller also explained the circumstances that precipitated his call, which were that he had been out at a bar in the area the night before and was reporting the damages for insurance purposes.

[91] I would not give effect to this ground.

D. SENTENCE APPEAL

[92] The appellant submits that the trial judge made two errors in principle when determining the appropriate sentence, and that, in any event, the three-and-a-half year sentence imposed was manifestly unfit. While I would grant leave to appeal sentence, I would reject the appellant’s three grounds of appeal on sentence, and dismiss the sentence appeal.

[93] First, the appellant argues that the trial judge placed undue emphasis on Morrice’s traumatic brain injury that resulted from the appellant’s assault. This purported undue emphasis included noting that, because of the permanent brain damage, Morrice had reduced cognitive ability, diminished academic and work opportunities, and experienced anxiety and depression. Although the appellant conceded that he caused the traumatic brain injury, the trial judge’s emphasis on it and the injuries that derived from it was unfair, he says, because the injuries were neither an intended nor foreseeable result of the attack.

[94] I disagree. The appellant repeatedly punched Morrice in the head while he was in a defenceless position, causing his head to snap back and hit a brick wall. He hit him hard enough that his jaw broke in two places, requiring two surgeries, and that the jaw be wired shut for six weeks. The appellant intended to assault Morrice, and the injuries caused by that assault were entirely within the scope of harm foreseeable at the time of the offence. In my view, it would have been unreasonable to conclude otherwise. The trial judge was acting well within the bounds of her discretion to emphasize the consequences of the assault to the extent that she did.

[95] Second, the appellant argues that the trial judge erred in principle by failing to consider sentencing authorities when imposing sentence. That is because she merely listed the relevant jurisprudence submitted to her and stated that she had “reviewed all of these authorities”. The trial judge’s failure to meaningfully engage with analogous cases, he submits, violated the parity principle. In his view, the trial judge’s reasons ought to have demonstrated that she grappled with the parity principle in a meaningful way by comparing the cases that she had listed to the case at hand.

[96] I am unable to agree with this submission.

[97] Sentencing is a highly individualized exercise whose primary aim is to craft a punishment that is proportionate to the gravity of the particular offence and the degree of responsibility of the particular offender. While parity of sentences is an established principle of sentencing and a desirable objective, one that guides a sentencing judge’s exercise of her broad discretion, it is subordinate to the fundamental principle of proportionality: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 2, 54.

[98] It follows that sentencing precedents alone – either individually or through the establishment of sentencing ranges – cannot conclusively determine the appropriate sentence in a given case. Rather, the sentences imposed on similar offenders for similar offences committed in similar circumstances, from which sentencing ranges are derived, provide “historical portraits for the use of sentencing judges”: Lacasse, at para. 57. To appreciate those portraits, however, does not demand an in-depth comparative analysis in every case.

[99] Here, the trial judge heard the parties’ submissions on relevant authorities, acknowledged considering them, noted the importance of the parity principle, yet recognized that she needed to craft a sentence that was individualized to the gravity of the offences and degree of responsibility of this offender. She was not required to demonstrate further that she considered the parity principle by comparing those sentencing authorities to the case at hand in her reasons. There was no error in principle in this regard.

[100] Third, the appellant submits that even if this court finds no error in principle, his sentence was manifestly unfit and should thus be overturned.

[101] In my view, the three-and-a-half year global sentence imposed was not manifestly unfit. The appellant had a high degree of moral blameworthiness for committing these very serious offences of assault causing bodily harm, two forcible seizures, and common assault. Although the appellant was only 23 years old at the time of the offences, was a productive member of the community, had family support, and expressed remorse and assumed responsibility for his actions at the sentencing hearing, the following factors amply support the trial judge’s disposition:

• This was a vigilante crime of revenge;
• The appellant led a group of men in intimidating, seizing and attacking Morrice and Fradette;
• The forcible seizure and the attack were premeditated;
• The appellant punched Morrice when he could not defend himself as his arms were being held by the appellant’s accomplices;
• Despite Morrice’s head repeatedly hitting a brick wall, the appellant did not stop punching him in the head;
• Morrice suffered significant injuries, including permanent impairment of some of his brain functions; and
• The appellant was serving a conditional sentence when he committed the present offences.

[102] The sentences recently affirmed by this court in R. v. Brouillard, 2016 ONCA 342, a case with circumstances similar to this one, support that the sentence imposed in this case was not manifestly unfit.

[103] In that case, Brouillard and his co-accused Tang were convicted of aggravated assault after each struck a defenceless victim in the head once after escorting him outside of a bar, causing a traumatic brain injury. Brouillard was sentenced to three-and-a-half years’ imprisonment, and Tang to three years’ imprisonment.

[104] Brouillard and Tang were convicted of aggravated assault, and I note that the appellant complains that the trial judge overly relied on sentencing precedents that featured convictions for aggravated assault, when the appellant was convicted of assault causing bodily harm, a lesser offence.

[105] In my view, when an accused is convicted of assault causing bodily harm that results in serious injuries, the two offences are highly analogous. That is because aggravated assault and assault causing bodily harm have the same essential elements and differ only in the nature of the injury caused by the assault – namely, aggravated assault specifically requires a wounding, maiming, disfigurement or endangerment of life: see e.g. R. v. Palombi, 2007 ONCA 486, 222 C.C.C. (3d) 528, at para. 39.

[106] Since I conclude that the trial judge did not err in principle or impose a manifestly unfit sentence, I would accordingly not interfere with the sentence imposed.

E. DISPOSITION

[107] For these reasons I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.

Released: July 8, 2016 (“E.A.C.”)

“M. Tulloch J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. R.G. Juriansz J.A.”