Court of Appeal for Ontario

Date: 2017-10-05

Docket: C59233

Judges: Cronk, Juriansz and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Eric Shawn Carty Appellant

Counsel

Michael Dineen, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: September 27, 2017

On appeal from the conviction entered on November 22, 2013 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] Eric Carty was convicted after a jury trial of the first degree murder of Kirk Vaughn Matthews. He appeals his conviction on two grounds. He asserts that the trial judge erred in admitting, under the principled hearsay exception, a statement made by the deceased after he had been shot and shortly before his death, in which the Crown contends he identified Mr. Carty, a.k.a., "Sniper," as the shooter.

[2] The second ground of appeal pursued before us was that the trial judge erred in law by not giving the jury a "no probative value" direction regarding Mr. Carty's post-offence conduct. A no probative value direction would have cautioned the jury not to use Mr. Carty's post-offence conduct in fleeing after he learned he was wanted for the shooting of the deceased, to determine the category of homicide offence which Mr. Carty may be guilty of.

[3] We decline to give effect to either ground of appeal.

Discussion

(1) Admission of Hearsay Statement

[4] With respect to the hearsay statement, if we were persuaded that the trial judge had indeed admitted that statement solely on the footing that the jury had sufficient evidence to resolve whether the deceased had a motive to falsely accuse Mr. Carty of the shooting, we would have found there to be an error on this basis. This is not, however, how we read the admissibility ruling. The trial judge held that the statement bore the indicia of reliability that grounds the "spontaneous statement" fixed hearsay exception, but she chose not to rely directly on that exception because of evidence about the history of animus between Mr. Carty and the deceased. She made this decision notwithstanding her conclusion that the defence theory that the deceased could have been motivated to falsely implicate Mr. Carty as the shooter was questionable. She said specifically:

These issues viewed in the cold light of a courtroom may amount to a reason to fabricate. However, when viewed in the context of the rapidly unfolding and dramatic events, such a conclusion is not so simple. Here, the mind of the deceased must have been still dominated by the shooting. He had just been shot in the chest. He said he could not feel his legs. To say that under these circumstances he had the motive and opportunity to fabricate is questionable.

That said, I do not base my decision on the res gestae but rather the principled approach to the admission of hearsay.

[5] Given that the sole consideration that prevented the trial judge from admitting the statement under the "spontaneous statement" exception was the contest about motive to mislead, and that the trial record gave the jury ample opportunity to assess the strength of the motive evidence, the trial judge determined that the jury had a satisfactory basis to assess the truth of the statement. In doing so, the trial judge, in effect, combined substantive reliability factors with the capacity of the jury to resolve the key outstanding hearsay issue that remained, to find that the threshold for admission had been achieved.

[6] This reasoning is also problematic. The ability of a jury to explore, using other evidence, an issue that could be the subject of cross-examination of the declarant is not an adequate procedural safeguard that can substitute for that cross-examination.

[7] That said, we do not rely on the trial judge's theory of admissibility to determine this issue. Instead, we uphold the admission of the hearsay statement on a simpler footing. In our view, once the trial judge found that "in the context of the rapidly unfolding and dramatic events… the mind of the deceased must have been still dominated by the shooting," and that the defence fabrication theory was questionable, she should have admitted the hearsay statement as a "spontaneous statement."

[8] The theory underlying this exception to the hearsay rule was explained by this court in R. v. Khan (1988), 27 O.A.C. 142 (C.A.), at p. 148, affirmed, [1990] 2 S.C.R. 531:

[A] spontaneous statement made under the stress or pressure of a dramatic or startling event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.

[9] We agree that evidence of a sufficiently strong motive to mislead can influence whether to find that a statement was made in circumstances where "the possibility of concoction or deception can safely be discounted." Where, however, a trial judge determines that a statement was made when the stress or pressure of the act or event is "such that the possibility of concoction or deception can be safely discounted," or "before there has been time to contrive and misrepresent," then the presence of a motive to mislead becomes unimportant to admissibility. If one is so caught up in the event that, realistically, they are not capable of contriving, evidence that they may have a motive to contrive against another is immaterial.

[10] In this case, given her factual findings, the trial judge therefore erred in law in failing to admit the deceased's statement under the spontaneous statement exception. Once it was determined that the defence's motive to mislead theory was questionable, and that "the mind of the deceased must have been still dominated by the shooting," the trial judge should have admitted the statement without resort to the principled exception.

[11] In fairness to the trial judge, she may have approached the motive question differently had she relied on the Khan articulation of the test for the spontaneous statement exception, set out above, instead of using a three-part test in which the presence "of ongoing stress of a dramatic or startling event," and the "little possibility of fabrication" factor are treated as distinct components. In fact, these two components are "cause and effect". If the presence of "ongoing stress of a dramatic or startling event" is intense enough to still the ability to reflect and contrive, there is "little possibility of fabrication", since a declarant is too overwhelmed to act on a motive to mislead.

[12] In upholding the admission of the hearsay statement on this basis we are mindful that there was evidence that, proximate to the time of his identification of Sniper as the shooter, the deceased directed that drugs be removed from his car. This can be seen as evidence that, contrary to the trial judge's finding, the deceased's ability to concoct was not in fact stilled. The question, however, is not whether we would have made the same factual finding as the trial judge. The trial judge was entitled on the evidence before her to make the finding that she did. Absent palpable and overriding error, her finding on this issue is entitled to deference from this court. No such error has been demonstrated here. We therefore decline to give effect to this ground of appeal.

(2) Post-Offence Conduct Instruction

[13] Nor did the trial judge err by failing to caution the jury that Mr. Carty's post-offence flight had no probative value in determining the category of homicide offence he may have committed.

[14] It is true that flight has no relevance on that issue in the circumstances of this case. Each and every possible offence was serious enough to motivate flight. As the Supreme Court of Canada recognized in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 38 and 185, however, a no probative value instruction will not always be necessary.

[15] In this case, the trial judge made clear to the jury that evidence of Mr. Carty's flight was relevant to the issue of his alleged identity as the shooter. Moreover, there was no defence objection to the absence of a no probative value direction in the jury charge. This is a fair indication that even defence counsel recognized that this caution was not required, a conclusion supported by the fact that the trial judge mentioned Mr. Carty's flight only when describing the identity issue, and did not include it when describing the evidence relating to his state of mind. In the circumstances, the prospect that the jury might rely on the evidence of Mr. Carty's flight to determine his level of culpability was sufficiently remote that a no probative value direction was unnecessary.

[16] Accordingly, this ground of appeal also fails.

Disposition

[17] The appeal is therefore dismissed.

"E.A. Cronk J.A."

"R.G. Juriansz J.A."

"David M. Paciocco J.A."