COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cesar, 2016 ONCA 890

DATE: 20161124

DOCKET: C58004

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rosny Cesar

Appellant

Howard L. Krongold, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 31, 2016

On appeal from the conviction entered by Justice Robert J. Smith of the Superior Court of Justice on February 1, 2013, sitting with a jury.

Tulloch J.A.:

A. Introduction

[1] The appellant was charged with murder, but convicted of manslaughter, after a bar fight in which he stabbed a man five times and killed him.

[2] At trial, the appellant said that he was provoked. He also argued that he killed the victim, Danny Trineer, in self-defence.

[3] To support that defence, the appellant sought to adduce a hearsay statement of a paramedic who attended the scene. The paramedic told police that he heard one of the persons he treated say words to the effect that “not the victim, but the other guy was getting beaten up... he wasn’t winning the fight. And since he was under, that’s when he got his knife out and would have stabbed the other.”

[4] The appellant wanted to use that statement to prove that the version of events described in it was true. He also wanted to prove that the statement was made by Christian Sauvé, a bouncer at the bar and friend of the deceased, to impeach Sauvé’s testimony at trial.

[5] The trial judge dismissed his application to adduce that evidence.

[6] On appeal, the appellant argues that the trial judge erred in doing so.

[7] He also argues that the trial judge erred by failing to leave the defence of accident to the jury, when, in his view, there was an air of reality to it.

[8] For the reasons that follow, I would dismiss his appeal.

B. Background

[9] The appellant and Trineer met at a bar in Hawkesbury late on a Friday night in September 2010.

[10] The appellant was there with his girlfriend and her friend. They arrived at about 12:40 a.m. and went upstairs to the nightclub area of the bar.

[11] Trineer was in the nightclub area of the bar at that time, accompanied by two female friends, and his sister. Trineer had worked as a bouncer at the bar and was good friends with many of the bouncers who worked there.

[12] About five minutes later, the appellant’s girlfriend and one of Trineer’s friends started arguing. The appellant, who is black, tried to intervene. At this time, he says that Trineer came close to him and said, “You Nigger, did you come here to take my place?” The appellant said that Trineer then told him that he was not “from here” and threatened to shoot him and his girlfriend. Some bouncers intervened.

[13] The appellant decided to go home, but his girlfriend wanted to stay and dance. He left her behind, telling her he would come back later. He was upset. It was about 12:51 a.m.

[14] Once home, the appellant testified that he decided it was a bad idea to have left his girlfriend behind. He grabbed a kitchen knife, allegedly for self-defence, put it in the pocket of his pants, and drove back to the bar.

[15] Before the appellant returned, his girlfriend got involved in another altercation. She was trying to drink a beer on the balcony. Two bouncers, Yves Pépin and Christian Sauvé, tried to remove her from the bar. She was pushing and hitting them. When she kicked Pépin in the stomach, Trineer intervened. He and Sauvé carried her down the stairs by her arms and legs. They placed her down outside.

[16] The appellant returned to find his girlfriend crying in the parking lot. He went straight to her. She told him that the bouncers had almost undressed her in front of everyone and that one of them punched her in the head.

[17] The appellant confronted the bouncers. While doing so, his girlfriend pointed out Trineer, who was crossing through the parking lot. She told the appellant that he was the one that grabbed the beer bottle from out of her mouth. She and the appellant went to confront Trineer, but two bouncers stood in the appellant’s way.

[18] The appellant’s girlfriend went ahead and started yelling at one of Trineer’s friends. She started hitting Trineer in the chest. Trineer then took her down, allegedly pushing her face into the ground.

[19] The appellant then ran towards Trineer to punch him. The accounts of what happened next diverge.

[20] According to the appellant, a bouncer then jumped on top of him before he reached Trineer and put him in a chokehold. Trineer then started punching him in the face. He was scared. He drew his knife during the struggle. The defence acknowledged that the appellant must have stabbed Trineer, although the appellant stated that he had no idea how it happened.

[21] Other witnesses, most of whom were friends with Trineer, contradicted the appellant’s version of events. Sauvé said that he placed himself between the appellant and Trineer to intervene, but Trineer said that he could handle it. Both adversaries stood with their fists clenched, when in a matter of seconds, the appellant drew a knife and stabbed Trineer. Sauvé testified that Trineer never connected with any of his punches. Dominic Séguin-Potvin, another bouncer, said that he saw the appellant with the knife, which he thought was a gun at first. He yelled, “he’s got a gun”. A few seconds later, Séguin-Potvin said the appellant lunged at Trineer with the knife and stabbed him.

[22] One of Trineer’s friends said she saw the appellant punch Trineer. She said that Trineer tried repeatedly to hit him back, but that it did not appear that any of his punches landed.

[23] None of the witnesses described the appellant being held by a bouncer, or pummelled by Trineer, before the stabbing took place.

[24] Sauvé intervened to break up the stabbing. He grabbed the appellant with one hand as Trineer was still struggling to try to hit him, and grabbed the knife with the other. Sauvé cut his hand doing so. He threw the appellant to the ground, where they rolled around. The appellant bit Sauvé on the arm and then fled the scene. Later that night, the appellant turned himself in to police.

C. Issue #1 – Use of The paramedic’s statement

[25] A paramedic who attended at the scene, Daniel Lacelles, recounted to police a version of events that a bouncer, allegedly Sauvé, told him shortly after the stabbing. The paramedic’s recounted version of events contradicted Sauvé’s testimony at trial. And that recounted version of events was a more favourable one to the appellant than that given by other witnesses, including Sauvé.

[26] Not surprisingly, the appellant wanted to put the paramedic’s statement before the jury. However, as an out-of-court statement adduced for the truth of its contents, that statement was hearsay, and presumptively inadmissible.

[27] The trial judge dismissed the appellant’s application to admit the paramedic’s statement. He concluded that the paramedic’s recounting to police of what was said to him was so unreliable that it could not be safely proven that Sauvé did, in fact, make such a statement to him.

[28] I would not interfere with that holding. Since it could not be proven that Sauvé made the alleged statement to the paramedic, it follows that the version of events described therein could not be admissible for the truth of its contents or used to impeach Sauvé’s credibility. I would therefore dismiss this ground of appeal.

(1) Facts

[29] The paramedic did not witness the stabbing first-hand. He arrived at the scene shortly after it happened. This was sometime around 1:00 a.m. There, he assisted two colleagues with Trineer and then rode in the ambulance with them to the hospital.

[30] The stabbing took place on a Friday night. On Sunday morning at about 9 a.m., roughly 32 hours later, the paramedic gave a statement to police. That statement included the following:

He told me that he worked at the Déjà Vu. And he told me that the story about – the event having started upstairs. They threw a girl out. And the guy lying on the ground would have helped escort the lady out because he had previously worked at the Déjà Vu with him. And then, when they went back out to the parking, with another girl that was involved in the incident upstairs, the other girl is still outside in the parking. And I could understand that her friend – her boyfriend – this is when the fight started. And then he told me at some point more or less – not the victim, but the other guy, was getting beaten up. He was – he wasn’t – he wasn’t winning the fight. And since he was under, that’s when he got his knife out and would have stabbed the other. He said that himself didn’t see the knife at first. And when he saw that the other guy fell, this is when he saw the knife in the hands of the other guy and he tried to remove it from him. And this is how he cut his hand. [Emphasis added.]

[31] On the voir dire at trial, the paramedic testified that he remembered that he spoke to police after the stabbing, that the events were fresh in his mind at the time, and that he was being truthful.

[32] However, he said that he had no independent memory of what he talked about in that statement. He testified that he had no memory of any conversations with Sauvé at all, and that he would not recognize him if he saw him with ten other people in the courtroom. Nor could he recall if the conversation was in English or in French. And he could not say where he would have spoken to Sauvé, whether at the hospital or at the scene.

[33] The paramedic testified that maybe he could have become confused. He explained that the scene was very chaotic. He would have spoken to about 10 different people there. They were all providing him with information about what had happened. He said he received a lot of information while at the scene.

[34] The paramedic did not take any notes of his conversation with the bouncer. He acknowledged that what he said to police was not a word for word account of what he heard. The statement was not given under oath, and the paramedic was not warned of the consequences for giving false information. His purpose for speaking to police was to help them make further inquiries.

[35] Sauvé acknowledged that he spoke to a paramedic. But, when cross-examined about what he said, he denied giving the version of events recounted by the paramedic:

Q. Do you recall speaking to one of the ambulance attendants?

A. At Déjà Vu, not at the …

Q. At Déjà Vu?

A. Yeah.

Q. Okay. And he looked at your hand, correct?

A. That’s correct. And then he told me to go to the hospital and I said, “No, just go worry about my friend right now.”

Q. Okay. And he had asked you what happened to your hand?

A. I don’t recall that, no.

Q. Do you recall talking to him about what had happened in the fight?

A. Yes. That my friend was stabbed.

Q. Do you recall telling him that not the victim but the other guy had been punched?

A. I don’t recall that, no.

Q. You don’t recall telling him that Mr. Cesar had been punched?

A. That’s correct.

Q. Did you recall telling him that Mr. Cesar didn’t have the upper hand in the fight?

A. No.

Q. Do you recall telling him that Mr. Cesar ended up underneath and that’s when he took out the knife and stabbed the other guy?

A. I never said anything like that, no.

Q. I understand that this fight happened very quickly?

A. That’s correct.

Q. And you can disagree with me on what I’m about to suggest to you, that’s fine, I expect you might. Is it possible that Danny Trineer, one of his punches connected with Mr. Cesar?

A. I do not agree, no.

[36] The recorded statement was the only evidence the appellant could rely on that such a conversation ever occurred. That is because the paramedic had no present recollection of his alleged conversation with Sauvé, and Sauvé denied that he ever said what was contained in that statement.

(2) Discussion

[37] Hearsay evidence “is defined not by the nature of the evidence per se, but by the use to which the evidence is sought to be put: namely, to prove that what is asserted is true”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 162.

[38] Here, the appellant sought to put the paramedic’s out-of-court statement to two hearsay uses.

[39] First, he wanted to prove that Sauvé actually gave the version of events to the paramedic that was recounted in the paramedic’s statement. In this way, he could argue to the jury that Sauvé was not a credible witness since he gave a different version of events at trial. This manner of impeachment is set out under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5

[40] Second, he wanted to prove that the version of events described in the paramedic’s statement was what actually happened. This would help his self-defence claim. That is because that version, unlike the one given at trial by Sauvé and others, indicated that the appellant was losing the fight and was “under” when he took out the knife and stabbed Trineer.

[41] This second use, however, involved two levels of hearsay: the first being the paramedic recounting what Sauvé said to him; the second being Sauvé recounting to the paramedic what he witnessed during the fight. This is sometimes referred to as ‘double hearsay’. For this ‘double hearsay’ use, “each level of double hearsay must fall within an exception, or be admissible under the principled approach”: Starr, at para. 172.

[42] Thus, before the appellant could prove the second level of hearsay – that Sauvé’s version of events recounted in the paramedic’s statement was what actually happened – he had to be able to prove that Sauvé actually gave that version of events to the paramedic in the first place.

[43] The trial judge refused to admit the recorded statement for either hearsay use.

[44] On appeal, the parties fundamentally disagree about how the trial judge resolved the appellant’s application. The resolution of that disagreement plays a large role in the determination of this issue on appeal.

[45] The appellant claims that the trial judge found that the first level of hearsay – the paramedic’s recounting of what he heard said – fell under the past recollection recorded exception to hearsay. Having done so, the appellant says that the trial judge erred by refusing to allow him to impeach based on the statement.

[46] The appellant further argues that the trial judge’s principled approach analysis was flawed. For the most part that is because, having accepted that the first level of hearsay fell under the past recollection recorded exception, he treated the paramedic as the declarant of the statement, and not Sauvé. Had Sauvé been treated as the declarant, he says, the evidence would have been found to be sufficiently reliable.

[47] The Crown, on the other hand, says that the trial judge never accepted that the first level of hearsay was admissible, and that he was entitled to so hold. On that basis, the trial judge properly dismissed the appellant’s application.

[48] In my view, the Crown’s interpretation of the trial judge’s resolution of this issue is the correct one. The trial judge never found that the relevant portion of the paramedic’s statement was admissible.

[49] Reading the trial judge’s reasons as a whole, it is evident that he dismissed the application because he determined that the first level of hearsay was not admissible.

[50] Contrary to the appellant’s contention, he did not accept that the paramedic’s recounting of Sauvé’s statement satisfied the past recollection recorded exception. His disposition under that ground makes this clear. He stated that the paramedic’s statement “would only be admissible as a past recollection recorded for statements contained therein other than the hearsay statements contained therein made to him by Christian Sauvé” (emphasis added).

[51] Without affirming the trial judge’s reasoning and analysis in arriving at that conclusion, we accept that his primary concern was about the reliability of Sauvé’s hearsay statement to the paramedic as recounted to the police by the paramedic. This was a proper concern because “[t]he past recollection recorded is grounded in a concern for reliability”: R v. Richardson (2003), 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.), at para. 34.

[52] In the trial judge’s view, “the conversation between Sauvé and [the paramedic] occurred in very unreliable circumstances and was not recorded in a reliable way.” His reasons for arriving at this conclusion are repeated in several places, but are perhaps best summarized in the following excerpt:

However, [the paramedic’s] statement to the police on September the 5th of 2010 contains unreliable hearsay, which was not accurately recorded by [the paramedic], namely, his recollection of an oral statement made to him by Christian Sauvé, that he heard while administrating care to a critically ill victim, where he did not make notes of what was said, where he received information from ten other people at the scene and where the circumstances were chaotic, stressful and where his primary objective and concern was to provide care to the seriously injured victim and not to record exactly what had happened or what he was told. His statement is also not a word for word account. In addition, I note, [the paramedic] does not appear to have a very good memory.

[53] In short, although the trial judge accepted that the video statement was an accurate statement of what the paramedic told the police, he was not persuaded that it contained an accurate and reliable record of what Sauvé told the paramedic. The issue was not whether what the paramedic told the police was reliably recorded. The issue was whether what Sauvé told the paramedic was reliably recounted.

[54] To put it another way, the trial judge’s reasons demonstrate that the record did not satisfy him that the paramedic’s statement was made “while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate”, a condition for past recollection recorded set out in Richardson, at para. 24.

[55] Arguably, it also did not satisfy the “present voucher as to accuracy” condition, given the paramedic’s acknowledgment that he may have been confused at the time, among other things.

[56] The trial judge’s disposition on whether the statement qualified under the principled approach also came down to the unreliability of the paramedic’s account. He stated that “I therefore find that [the paramedic]’s hearsay evidence of what he was told by Christian Sauvé ... does not meet the threshold reliability required for admission under the principled exception to the Hearsay Rule.” His reasons on that ground again focussed on the unreliable nature of the paramedic’s statement, as reviewed above.

[57] In arriving at this determination, he also took into account the fact that, although the paramedic was available for cross-examination, cross-examination would not be useful or meaningful because the paramedic admitted he had no memory of either his statement to the police or of the oral statement made to him by Sauvé. The trial judge also considered the principle that a court has a residual discretion to relax a strict rule of evidence in favour of permitting an accused to call evidence where the justice of the case requires it: see R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 (Ont. C.A.).

[58] However, in the end, as noted above, the trial judge declined to admit the unreliable hearsay evidence of Sauvé’s statement to the paramedic under the principled exception to the hearsay rule on trial fairness grounds. It did not meet the threshold reliability required under the principled approach. He also found that its probative value was very low and was outweighed by the prejudicial effect of presenting such unreliable, untested, and untestable evidence to the jury. This was his call, and I see no error in fact or law in the trial judge’s determination on this issue.

[59] The trial judge also relied on the unreliability of the paramedic’s account when disposing of the spontaneous utterance exception to the hearsay rule and in determining whether the statement could be used to impeach Sauvé’s testimony under s. 11 of the Canada Evidence Act. His conclusions that the paramedic’s statement was not admissible as a spontaneous utterance given at the time, and that the statement could not be used to impeach Sauvé’s trial testimony, are supported by the same reasoning referred to above.

[60] In short, the trial judge consistently found that the first level of hearsay – the paramedic’s account of Sauvé’s alleged statement – was not sufficiently reliable to be admissible. On appeal, deference is owed to a trial judge’s determination of threshold reliability for hearsay, unless his or her determination was tainted by an error in principle: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31. There was no such error here.

[61] Accordingly, I would not interfere with the trial judge’s exclusion of the paramedic’s statement for either hearsay use.

D. Issue #2 – the defence of accident

[62] The jury was charged on self-defence under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46, which applied at the time of the altercation, and on the partial defence of provocation.

[63] But the appellant argues that the trial judge erred by failing to charge the jury on the defence of accident as well. Despite not advancing this defence at trial, he claims that it had an air of reality. Thus, it ought to have been left with the jury.

[64] In particular, he says that the jury should have been charged that the stabbing was an unintended act. While he concedes that he intentionally drew the knife, his testimony, he says, was essentially that the stabbing was an accident.

[65] Of course, if he accidentally caused Trineer’s death while intentionally engaging in an unlawful and objectively dangerous act, he would still be guilty of manslaughter: R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 108. The failure to charge on accident could be said to be harmless then.

[66] The appellant counters by arguing that the act of pulling the knife could be justified as self-defence under s. 37 of the Criminal Code, rendering it a lawful act. If the jury found that the drawing of the knife was a lawful act and that the following stabbings were accidental, it would lead to an acquittal.

[67] I would dismiss this ground of appeal. In my view, there was no air of reality to the defence of accident.

(1) Facts

[68] The basis for the defence of accident comes from the appellant’s testimony.

[69] The appellant testified that he ran towards Trineer to punch him. He says that when he tried to punch Trineer, one of the bouncers jumped on his back and put him in a choke hold. Trineer then, according to the appellant, began punching him in the head “like a punching bag”. The appellant testified that he was afraid and having trouble breathing.

[70] The knife came out, the appellant believes, at some point while he was being held, with Trineer moving towards him. He claimed to have no idea how Trineer came to be stabbed:

Q. Did you intend to strike Mr. Trineer with the knife?

A. No, I just wanted – the other one came out on me, I don’t know how he got stabbed, I have no idea.

Q. Would you agree that ultimately you’re the one who did stab Mr. Trineer?

A. I – I can’t tell you because me I was struggling, maybe I took it out and – I was struggling, I have no idea.

[71] The forensic evidence and other witness accounts provide some further context for this ground.

[72] Five stab wounds were found in the deceased’s body. Two were less serious: a five-centimetre wound to the right side of the back, and another to the top-right upper arm. The other three were in the left side of the chest, and were each life-threatening.

[73] The chest wounds caused Trineer’s death. Two pierced the left lung, one of which went twelve centimetres into the chest, causing the left lung to collapse. The third chest wound cut through the main blood vessel in the chest, the aorta. This wound was not survivable.

[74] The close proximity of the three chest wounds suggested that the deceased did not move much between each wounding.

[75] Of all the other witnesses at the trial, only two testified to seeing the physical stabbing take place: the bouncers Dominic Séguin-Potvin and Christian Sauvé. Séguin-Potvin said that the appellant lunged at Trineer with the knife and stabbed him. He said he heard the sounds of the knife going in and out three or four times. Sauvé said he saw the appellant make a stabbing motion. He then wrapped his arm around the appellant from behind, and grabbed the knife before the appellant could stab Trineer again. The other witnesses’ views were obstructed at that moment, or they were not watching the fight at the time.

(2) Discussion

[76] The ‘air of reality’ test governs whether a defence should be put to the jury. That test provides that the determination of putting a defence to the jury is based on “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 49.

[77] The trial judge “must put to the jury all defences that arise on the facts”: Cinous, at para. 51. It does not matter whether an accused advanced such a defence: Cinous, at para. 51. Nor does it matter if the defence is incompatible with defences advanced by the accused: see R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 31-34.

[78] At the same time, the trial judge must not put to the jury any defences that lack an air of reality: Cinous, at para. 51. As Cory J. explained, “[s]peculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials”: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 683.

[79] In this case, the trial judge was correct not to put the defence of accident to the jury. It lacked an air of reality.

[80] As the Supreme Court has made clear, “a mere assertion by the accused of the elements of a defence will not be sufficient to clear the air of reality hurdle”: Cinous, at para. 98. Such is the case here. The defence of accident would have required a finding that the appellant stabbed the deceased multiple times by accident: see e.g. R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at para. 47. Yet the evidence at trial provided no such explanation as to how that could have happened. The appellant’s full answer to whether he intended to strike Trineer with the knife essentially claimed that he had no memory of the stabbing. He offered no evidence for how he accidentally stabbed Trineer five times, stating “I don’t know”, “I have no idea”, and “I can’t tell you”.

[81] No other witness provided evidence that would support this defence. To the contrary, the two witnesses that testified about seeing the stabbing both described the appellant making stabbing motions towards the deceased.

[82] In my view, a properly instructed jury, acting reasonably, could not accept that the stabbings were accidental based on the factual foundation before them.

[83] Accordingly, I would dismiss this ground of appeal.

E. Disposition

[84] I would dismiss the appeal.

Released: “RAB” NOV 24 2016

“M. Tulloch J.A.”

“I agree. R.A. Blair J.A.”

“I agree. G. Pardu J.A.”