Her Majesty the Queen v. Borel

[Indexed as: R. v. Borel]

Ontario Reports Court of Appeal of Ontario Lauwers, Miller and Nordheimer JJ.A. January 12, 2021 153 O.R. (3d) 672 | 2021 ONCA 16

Case Summary

Criminal law — Appeal — Proviso — Trial judge erring in admitting opinion evidence regarding accused's credibility and demeanour, and in improperly admitting hearsay going to identity — Curative proviso not applying — Case of attempted murder against the accused was strong, but not so strong as to be overwhelming — Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

Criminal law — Evidence — Hearsay — Accused charged with attempted murder — Trial judge admitting evidence of complainant's out of court statements to EMS attendant — Complainant shaking her head when asked by attendant if attacker was her husband, and nodding her head when asked if attacked by her boyfriend — Evidence admitted as part of the narrative and as rebutting possible defence of accident or suicide attempt — No need to admit evidence as part of the narrative — Evidence went to the central issue of the attacker's identity and carried the highest danger of misuse — New trial ordered.

Evidence — Opinion evidence — Accused charged with attempted murder — Crown questioning 911 dispatcher, who described accused's emergency call as weird for various reasons — Homicide detective describing accused's demeanour in an interview as being unusual and inconsistent with someone charged with attempted murder — Crown improperly elicited opinion evidence from dispatcher as to accused's credibility and ought to have asked only factual questions — Crown elicited prejudicial opinion evidence regarding demeanour that could not have been properly elicited — New trial ordered.

The accused was charged with attempted murder. He had been in an affair with the married complainant. The two of them arranged to meet at a community centre. The complainant testified that she had been drinking and that the accused was already present in the parking lot when the complainant arrived. According to her evidence, when they both got out of their cars the accused spilled gasoline on the complainant and threw a match at her, setting her on fire. The accused's testimony was that he arrived at the community centre first and that when the complainant arrived they started arguing about the complainant's drinking and driving. When he went back to his car to make a call he heard a scream. He ran to the complainant and found her rolling around and stated that she appeared to be burning. He called 911. The appellant gave conflicting information about whether he knew the complainant to various passers-by who stopped to help. The police and EMS arrived. The appellant initially denied knowing the complainant because of the complainant's request, prior to the police attending, not to say her name. The accused later told the officer and EMS personnel the complainant's name and that she was a friend of his and that they were supposed to meet there. He handed the officer a set of keys, a lighter and matches, telling the officer that they were in the complainant's hand and that they belonged to her. He also told the officer that the complainant was not his girlfriend but had met up with her because she was an alcoholic needing support. The 911 dispatcher testified that the accused's call was "weird" in that the accused initially reported the complainant as having been assaulted and only later mentioned that she was burned, and while the accused stayed at the scene, he didn't really help. The 911 call was played at trial and the dispatcher identified several portions of it that she found unusual and troubling. A homicide detective who interviewed the accused testified that he found the three-hour interview unusual in three major ways: the accused's demeanour was inconsistent with someone in custody for attempted murder, the accused's version of events changed throughout the interview and the accused's denials were relatively weak. The Crown was also permitted to lead evidence of the complainant's out of court statements to an EMS attendant. The attendant testified the complainant said that "he" had done this to her, nodding her head when it was suggested that "he" was her boyfriend and shaking her head when it was suggested that "he" was her husband. Evidence was adduced that the person who threw the gasoline likely would have had gasoline on their clothing and shoes but the appellant had none. No gas can was discovered at the scene but gasoline was found on the driver's seat of the complainant's car, including in the cup holder. At trial, the complainant had no recollection of the events in the ambulance. The accused appealed his conviction.

Held, the appeal should be allowed.

The line of questioning of the 911 dispatcher was improper. The Crown had elicited from the dispatcher what was, in essence, opinion evidence as to the accused's truthfulness. It was improper for a witness to give an opinion of the credibility of any other witness. The Crown's questions could have been restricted to asking the dispatcher factual questions about what occurred, leaving it to the jury to draw their own conclusions. The trial judge ought to have curtailed the improper line of questioning and instructed the jury on the use to which they could put the dispatcher's evidence, including instructing them not to consider the dispatcher's opinions.

The opinion evidence from the homicide detective ought not to have been elicited by the Crown. For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the accused was acting like a person guilty of the offence, was highly prejudicial. There was no way for the evidence to have been properly elicited. The error was made worse by the trial judge's failure to give any form of limiting instruction on its use. The judge ought to have told the jury to ignore the detective's opinions.

There were several errors with respect to the EMS evidence. The statements, including the head movements, were admitted pursuant to the principled exception to the hearsay rule on the dual grounds of forming part of the narrative and rebutting a possible defence that the incident resulted from an accident or suicide attempt. However, insofar as the evidence was being admitted to rebut accident or suicide, it could only achieve that purpose if the evidence was admitted for the truth of its contents, which would carry with it the risk that the jury would also use it as confirmation on the issue of identity. The trial judge also characterized the head movements as not being statements and thus being admissible with no hearsay analysis, which was an error. The evidence of the head nodding went to the central issue of the identity of the attacker and was the evidence that carried the highest danger of misuse. The evidence did not fit within the principled exception because it did not meet the twin requirements of necessity and reliability. While the complainant may not have remembered the events in the ambulance, as recounted by the EMS attendant, the complainant did later identify the accused as her attacker. There was no need for the evidence to be admitted as part of the narrative. The evidence could not be properly admitted on the basis of spontaneous utterance because the nodding or shaking of the head was the result of repeated questioning such that there was nothing apparently spontaneous about it. There was also no suggestion of recent fabrication.

It was not an appropriate case to avoid the impact of the errors by applying the curative proviso in the Criminal Code. It was agreed that the errors made at trial were not trivial or minor so the proviso could only be applied if the case against the appellant was overwhelming. Although the case against the accused was strong, it was not so strong as to be overwhelming. There were questions arising on the evidence with which the jury would have to contend in arriving at their verdict, and it could not be said that there was no possibility that such questions, taken in conjunction with the accused's evidence, would not have led one or more jurors to have a reasonable doubt. The evidentiary errors affected the fairness of the trial to the extent that a new trial was required.

R. v. Sekhon, 2014 SCC 15, apld

Other cases referred to R. v. Aguilar (1992), 10 O.R. (3d) 266 (C.A.); R. v. Badgerow (2014), 119 O.R. (3d) 399, 2014 ONCA 272 [Leave to appeal to S.C.C. refused [2014] 3 S.C.R. v, [2014] S.C.C.A. No. 254]; R. v. Borel, 2014 ONSC 2605; R. v. K. (L.), 2020 ONCA 262; R. v. Khan (2017), 136 O.R. (3d) 520, 2017 ONCA 114; R. v. Khelawon, 2006 SCC 57; R. v. Levert; R. v. Marquard; R. v. Nurse (2019), 145 O.R. (3d) 241, 2019 ONCA 260; R. v. Quazi, 2014 ONCA 94; R. v. Stirling, 2008 SCC 10

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

Authorities referred to Chadbourn, James H., ed., Wigmore on Evidence, vol. 6 (Toronto: Little, Brown Book Group Ltd., 1976)

On APPEAL from the conviction entered by Justice Linda M. Walters of the Superior Court of Justice, sitting with a jury, on May 22, 2014, and from the sentence imposed on August 15, 2014.

Philip Norton, for appellant. Philippe G. Cowle, for respondent.

The judgment of the court was delivered by

[1] NORDHEIMER J.A.: — Mr. Borel appeals from his conviction for attempted murder. He also seeks leave to appeal the sentence of 19 1/2 years imposed upon him. For the reasons that follow, I would allow the conviction appeal and order a new trial. As a consequence, I do not reach the sentence appeal.

Background

[2] In September 2010, the appellant and the complainant began an affair. The complainant was married and lived with her husband and her teenaged children. The appellant was not married and lived with the mother of his children in a platonic relationship. In December 2010, the complainant's husband found out about the affair. The complainant told her husband that it was over, but in fact she continued the affair. The complainant, who had a drinking problem, began to drink more heavily.

[3] At trial, the evidence of the complainant and the appellant differed as to the state of their relationship in July 2011. Each claimed to be the one trying to end it. On July 23, 2011, sometime around 6:00 pm, the complainant left her house telling her husband that she was going shopping and then to a friend's house. The story was a lie. The complainant was actually going to meet the appellant.

[4] The complainant and the appellant met in the parking lot of a community centre. The appellant arrived first. A little before 6:45 p.m., the appellant called 911. When the police and EMS arrived, the complainant was lying on the ground in the parking lot very badly burned. The appellant and some passersby were with her. The complainant smelled of gasoline.

[5] The appellant initially told the paramedic that he was driving past the community centre and noticed his friend in the parking lot. In contrast, he told the police officer at the scene that he did not know who the complainant was. He later told the police officer that he did know the complainant and that they had arranged to meet that evening. Later that evening at the police station, the appellant gave a videotaped statement to the police. Four days later, the appellant was arrested and charged with attempted murder. He then gave another, more detailed, videotaped statement to the police. Throughout his interactions with the police and others, the appellant consistently denied having doused the complainant with gasoline and setting her on fire.

[6] At trial, the complainant gave evidence about her relationship with the appellant. According to the complainant, there were a lot of trust and jealousy issues. She said that the appellant started getting physically and verbally aggressive. She described an incident in October or November of 2010 where the appellant grabbed her around the neck and strangled her to the point that she could not breathe. In response, she kicked him. He then let go but grabbed her by the arms leaving bruises.

[7] The complainant told her husband that the affair was over in December 2010 but it continued into 2011, although the complainant testified that it was getting "harder and harder to sneak around". According to the complainant, the appellant was getting more aggressive and wanted her to leave her husband.

[8] The complainant testified about a second violent incident sometime in January or February 2011 when she and the appellant were at a motel. She testified that the appellant took her phone and saw that she had been talking to a male friend. The appellant became jealous and aggressive and proceeded to smother her head and face with a pillow.

[9] The appellant gave evidence at trial and denied that either of these violent incidents had occurred. The appellant testified that he did see marks on the complainant, who told him a few times that she was fighting with her husband.

[10] In early 2011, the complainant got pregnant with the appellant's child. She terminated the pregnancy in April. Following the abortion, she and the appellant stayed together in a hotel for a number of days. The complainant did not think she told her husband at the time about the pregnancy. She and the appellant also got similar tattoos in memory of the baby. Each testified that it was the other's idea.

[11] Following her abortion, the complainant kept seeing the appellant. The complainant testified that she cared for the appellant and was scared to leave because she knew there would be consequences. In May 2011, she suggested that they should end it. She said that the appellant seemed upset but accepting. Afterwards, however, the complainant received several e-mails from the appellant stating, "fuck you baby killer", "you fucked with the wrong guy", "wait till the real fireworks start", and "I fucking hate you". The appellant testified that they argued a lot, but it was mostly over the complainant's excessive drinking.

[12] Sometime in March to June 2011, the complainant told her husband that she did not love him anymore and that she wanted to move out. During the time after her abortion, the complainant drank heavily. She was depressed. The complainant once told her husband that she was going to take all the sleeping pills. Her husband thought that this was a dramatic gesture to make him feel guilty.

[13] On July 23, 2011, the day of the incident, the complainant testified that she met the appellant at Rockway Community Centre. She left home around 5:50 p.m. She had been drinking and admitted that it was possible that she had alcohol in the car with her. The appellant was already present in the parking lot when the complainant pulled up at the community centre. They both got out of their cars and were standing in the parking lot. According to the complainant, the appellant told her that he had a "present" in his car for her. He proceeded to walk to his car and then walked back to her location with a black jug full of gas. The appellant started "swishing" the gas at the complainant. He took a match out of his pocket and threw it at her, setting her on fire. According to the complainant, the appellant stood there with his arms crossed and said, "fuck you bitch, you mess with the wrong people's feelings and you'll pay".

[14] The appellant acknowledged arriving at the community centre. He arrived first. When the complainant arrived, the appellant said that he knew right away that she had been drinking. The appellant said that he immediately got upset and asked her why she was drinking again. He told her that he did not want her driving to her friend's home, which is where the complainant was intending to go after meeting the appellant. The complainant told the appellant that she could drive to the friend's home on her own. The complainant and the appellant continued to argue about her drinking and driving. The appellant told the complainant that, if she refused to take a ride from him or call someone else, he was going to call the police. The appellant said that he had done this before.

[15] The appellant went back to his car to make a call. He then heard a scream. This was approximately ten minutes from the time the complainant had arrived at the community centre. He thought the complainant was just trying to get his attention. The appellant glanced over his shoulder and saw the complainant enter a trail that leads from the parking lot. She was screaming loudly. The appellant then ran to the trail and found the complainant lying face down and kind of rolling around. She appeared to be burning. The complainant rolled over. The appellant saw that she was burnt. He asked her "What happened? Who did this?" She was screaming and replied "nobody". The appellant testified that it was horrifying and that he did not know what to think. He helped the complainant up and back to the parking lot and then called 911.

[16] While waiting for the police to arrive, the appellant says that the complainant kept getting up and wandering towards the road. While waiting for the police, the complainant pleaded with the appellant not to tell the police who she was. The appellant repeatedly asked her: "Did someone do this to you? Did somebody attack you or something?" The complainant answered "nobody".

[17] Prior to the arrival of the EMS and the police, several people driving by stopped to assist. One testified that the appellant said he did not know the woman or know what happened. Another testified that the appellant said he did not know what happened and that he had made arrangements with the complainant to go hiking and that he arrived to find her in that state. A third testified that the appellant said that he did not know who did this and was supposed to meet the complainant. The appellant was on the phone to 911 while the on-scene witnesses were present.

[18] The police and EMS arrived. The appellant told EMS that he had been driving by and noticed his friend in the parking lot. He told them that he knew her and told them her name. However, the first officer on scene said that he asked the people present, including the appellant, if they knew the complainant. Everyone, including the appellant, stated that they did not know who the woman was. The appellant testified he did this because of the complainant's request, prior to the police attending, not to say her name. Upon being questioned by the same officer, the complainant also refused to tell him her name. The appellant later told the officer and EMS personnel the complainant's name and that she was a friend of his and that they were supposed to meet there. He handed the officer a set of keys, a lighter and matches -- telling the officer that they were in the complainant's hand and that they belonged to her. He also told the officer that the complainant was not his girlfriend but had met up with her because she was an alcoholic needing support.

[19] A five-hour search of the immediate area at the community centre by a number of police officers did not reveal any evidence of an accelerant container. An expert in the behaviour of gasoline and ignition source testified that if one swished gas in a backward motion (as described by the complainant), one would expect a transfer of gasoline onto that person's clothes and shoes. One would also expect to find some gasoline on the ground. The appellant's clothes (t-shirt and shorts) were tested for gasoline. They showed no traces of gasoline. There was no odour of gasoline around the appellant's car. However, there was a strong odour of gasoline in the complainant's car -- gasoline was located on the driver's seat of the complainant's car, in her purse and in a cup holder.

[20] The appellant denied throwing gasoline on the complainant and setting her on fire. He was unsure how the fire was caused. He denied that he went to the location with the intention of harming the complainant.

Issues

[21] The appellant raises three issues on his conviction appeal:

(1) the trial judge erred in erred in admitting opinion and demeanor evidence of the 911 dispatcher and in failing to give a limiting instruction to the jury regarding that evidence;

(2) the trial judge erred in admitting opinion and demeanour evidence of the homicide detective, who conducted the second videotaped interview of the appellant, and in failing to give a limiting instruction to the jury regarding that evidence; and

(3) the trial judge erred in admitting statements that the complainant made to EMS personnel during the ambulance ride to the hospital and in failing to properly instruct the jury as to the proper use of those statements.

Law and Analysis

(1) The 911 dispatcher

[22] In terms of the first ground of appeal, the 911 dispatcher gave evidence at trial. The Crown played the 13-minute 911 call. Then, following a few brief introductory questions, the Crown began his examination-in-chief by asking the dispatcher, given her experience: "was there anything unusual about this, about this particular [911] call?" The dispatcher testified that, in her opinion, the call she received from the appellant was "weird". The dispatcher noted that the appellant initially stated that the patient was assaulted and then later in the call said she had been burned. Further, the dispatcher found it odd that if the appellant had just come upon the patient, who was unable to communicate, why would he not have just told her that the patient was burned rather than assaulted.

[23] The dispatcher also told the jury that, in her opinion, while the appellant stayed at the scene, he "didn't really help" or ask the patient any questions that the dispatcher needed answered.

[24] The Crown then re-played the 911 call and asked the dispatcher to point out, in her opinion, "the point that [she] found unusual or troublesome". Throughout the 13-minute recording, the dispatcher requested the tape be stopped several times. Each time she identified portions of it for the jury that she found unusual and troubling, including that the appellant gave answers to questions that he should not know without asking the patient and that it was weird that the appellant did not initially say the patient was burned.

[25] Trial counsel did not object to the dispatcher's evidence regarding her interpretation of the 911 call or her opinion as to the appellant's actions or inactions. Trial counsel did cross-examine the dispatcher.

[26] It is a fundamental principle of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact. It was improper for the Crown to elicit what was, in essence, opinion evidence as to the appellant's truthfulness from the dispatcher because it is not proper for a witness to give an opinion about the credibility of any other witness: R. v. Marquard.

[27] Much of the dispatcher's evidence might have been elicited by the Crown in a proper fashion, by questions that avoided having the dispatcher express her opinions about the appellant. In other words, the Crown's questions could have been restricted to asking the dispatcher factual questions as to what had occurred, leaving it to the jury to draw their own conclusions regarding the appellant's actions.

[28] The trial judge ought to have curtailed this line of questioning. She also should have instructed the jury on the use to which they could put the dispatcher's evidence, including instructing them not to consider the dispatcher's opinions. She should have reminded the jury that it was their job alone to consider and reach conclusions on the credibility of every witness. None of this was done.

[29] That said, I do not view this error, by itself, as being serious enough to warrant a new trial, especially in light of trial counsel's failure to object or request a jury instruction about it. The failure to object to inadmissible evidence or to request a jury instruction is not determinative, but it is relevant to the treatment of the objection on appeal: R. v. K. (L.), 2020 ONCA 262, at para. 15.

(2) The homicide detective's evidence

[30] As one of his last witnesses, the Crown called the homicide detective, from the Niagara Regional Police, who had conducted a three-hour interview of the appellant. In introducing the homicide detective to the jury, the Crown elicited evidence from him that he had worked as a police officer for 27 years and was assigned to the major crimes/ homicide unit as an investigator. In his evidence, the homicide detective highlighted his extensive training with respect to interviewing and interrogating people in custody. He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator. Once again, the Crown did not seek to have the homicide detective qualified as an expert witness.

[31] The homicide detective testified that, in preparation for the interview of the appellant, he had staged an area of the police station in which he set up a number of surveillance photographs on an investigation board in an office. Upon his arrival at the station, the appellant was placed in a seat adjacent to this staged room, where he could see the investigative photos for approximately 30 seconds, before he was moved to another location. According to the detective, the purpose of this technique was to project to the appellant that "an extensive investigation has taken place before his arrest".

[32] The Crown played the three-hour interview for the jury. Thereafter, the Crown's very first question to the homicide detective was: "what did [he] find unusual about the video [interview of the appellant]?" The homicide detective responded that he found "three major things . . . unusual":

-- first, the appellant's "general demeanour and body language was inconsistent with someone in custody for attempt murder"; -- second, the appellant's "version of events changed throughout the interview"; and -- third, the appellant's "denials [about being involved in the crime] were relatively weak".

[33] The Crown then asked the homicide detective to expand on his opinion that the appellant's denials were relatively weak. In response, the homicide detective said:

From my experience and training, if someone's in custody for an offence, a serious offence that they, that they did not commit, they would, they would likely be denying it strongly and asking why they're in custody.

[34] The Crown then played several clips from the interview. The Crown asked the homicide detective to comment on whether he could identify: (1) any internal inconsistencies within the interview, and (2) any other inconsistencies by comparing the interview with other information the homicide detective knew about prior to interviewing the appellant. During this portion of his evidence, the homicide detective offered his opinion about the differences he identified in the appellant's versions as ones that were "subtle, but . . . important".

[35] Trial counsel once again did not object to the homicide detective's evidence. Nor did trial counsel cross-examine the homicide detective. Also, the trial judge did not question the route of admissibility of the homicide detective's opinion evidence or provide the jury with directions as to its proper use, if any.

[36] As was the case with the 911 dispatcher, this opinion evidence ought not to have been elicited by the Crown. However, unlike the evidence of the 911 dispatcher, this evidence could not have been properly elicited and it was highly prejudicial. As this court observed in R. v. Quazi, 2014 ONCA 94, at para. 7:

We also observe that the trial judge permitted the jury to hear the opinion of another police officer who characterized the appellant's demeanour during his police interview as indicative of guilt. Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant's trial.

[37] Demeanour evidence is, itself, "highly suspect": R. v. Levert, at para. 27. For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the appellant was, in essence, acting like a person who was guilty of the offence, was highly prejudicial. It was only made worse by the failure of the trial judge to give any form of limiting instruction on its use. The trial judge ought to have told the jury to ignore the detective's opinions.

(3) The EMS evidence

[38] At trial, the Crown sought and received a pre-trial ruling permitting it to lead evidence of the complainant's out of court statements to an EMS attendant, who was accompanied by two firefighters, in the ambulance that transported the complainant to hospital. The EMS attendant testified that the complainant had said that she did not want to die and that "he" had done this to her. The EMS attendant further testified that the complainant said it was unsafe to disclose the attacker's name because she was worried "he" would hurt her family.

[39] Notwithstanding the reluctance of the complainant to identify her attacker, the EMS attendant continued to press her on the subject. She did so by listing categories of people, such as aunt, uncle, husband, etc., who could have done this to the complainant. The EMS attendant said that the complainant nodded her head in agreement when the EMS attendant suggested "boyfriend". She shook her head when asked about other people, including "husband". While both firefighters, who were present in the ambulance, recalled the complainant saying that "he" did this to her, neither of them recalled the EMS attendant listing possible perpetrators nor did they remember the complainant's positive response when "boyfriend" was mentioned.

[40] At trial, the complainant had no recollection of the events in the ambulance. The trial judge ruled that her statements were admissible. [1] However, the basis for the ruling is confused. The Crown had sought admission of the statements (including the head nodding) pursuant to the principled exception to the hearsay rule, encapsulated in R. v. Khelawon, 2006 SCC 57, on two bases. One was that they formed part of the narrative. The other was to rebut a possible defence that the incident was the result of a suicide attempt or an accident. Towards the end of her reasons, the trial judge said:

It is also important to note that the Crown is not asking that the statements be admitted for the truth of their content, but simply as part of the narrative as it unfolds, and in order to rebut any presumption raised by the defendant that this burning was accidental or caused by [the complainant] herself.

[41] The problem with the trial judge's acceptance of the Crown's position is that it does not coincide with the actual purpose for admitting the evidence, at least on the second stated basis. Insofar as the evidence was being admitted to rebut accident or suicide, it could only achieve that purpose if the evidence was admitted for the truth of its contents, which would carry with it the risk that the jury would also use it as confirmation on the issue of identity.

[42] There is another confusing aspect of the trial judge's ruling. Early in her reasons, the trial judge held that the actions of the complainant, in shaking her head or nodding, were not statements, and thus were not hearsay. She said: "However, any actions observed by someone else, in this case, the emergency care personnel, are not hearsay, and [the EMS attendant] is free to testify about what she says she observed [the complainant] do." Consequently, the trial judge held that those actions were admissible without any hearsay analysis. The respondent admits that this latter finding is clearly wrong. "Hearsay typically consists of spoken words. It can, however, consist of conduct.": R. v. Badgerow, 2014 ONCA 272, at para. 106, leave to appeal to S.C.C. refused [2014] 3 S.C.R. v, [2014] S.C.C.A. No. 254. The same point is made in Khelawon, at para. 34: "hearsay evidence includes communications expressed by conduct".

[43] Unfortunately, the issue became even more confused when it reached the stage of the instructions to the jury. The trial judge first told the jury that they had heard the evidence about the statements for the two purposes stated above but not "to prove that what she said is true, but only to establish that the statements were made". However, only a short time later, the trial judge told the jury:

If you decide that [the complainant] did make these statements, you may consider that evidence in deciding whether or not [the complainant] would have made these statements if her injuries were self-inflicted or occurred as a result of an accident.

In determining how much or how little you will rely on this evidence, to help you decide this case, you may consider that it may be less reliable than other evidence that has been given. [The complainant] has no memory of this point in time. Accordingly, she was not subject to cross-examination on this issue. At the same time, you may consider whether there is any evidence to suggest a motive on the part of [the complainant] to lie to the emergency responders.

It is evident that, at this point in her charge, the trial judge is clearly indicating to the jury that the evidence can be used for the truth of its contents.

[44] Further, the critical piece of evidence arising from this issue is the evidence of the complainant apparently nodding in the affirmative when she was asked whether the attacker was her boyfriend. The trial judge did not isolate this piece of evidence in her instructions to the jury and, consequently, she did not give any cautionary instruction to the jury about its use, presumably because she continued to view it as direct evidence and not as hearsay.

[45] Yet, this evidence went to the central issue of the identity of the attacker and was the evidence that carried with it the highest danger of misuse. This fact is important because evidence is admitted for a purpose, and that purpose must be clearly identified. Here the Crown was tendering the evidence that the complainant nodded her head in response to questions in order to prove the identity of the appellant as her attacker even though the Crown had the direct evidence of the complainant on this point.

(a) The principled exception

[46] As I have already said, the complainant's statements, including the head nodding, were hearsay. Their admissibility ought to have been reviewed under the principles that apply to the admission of hearsay evidence. In the circumstances of this case, none of this evidence was admissible for either of the purposes it was offered by the Crown. More specifically, it was not admissible under the principled exception to the hearsay rule for the truth of its contents as a positive identification of the appellant as the complainant's attacker. For that purpose, the evidence does not fit within the principled exception because the evidence does not meet the twin requirements of necessity and reliability. I would reject trial counsel's concession and the trial judge's conclusion that all of this evidence, including the head nodding, met the necessity requirement. I note that the trial judge separately concluded that the necessity requirement was established for the utterances.

[47] The only purpose for admitting the specific evidence of the head nodding was to prove, or help prove, that the appellant was the person who committed the attack. However, it was not necessary for this evidence to be admitted for that purpose. While the complainant may not have remembered the events in the ambulance, as recounted by the EMS attendant, the complainant was available to give evidence about the actual event and she identified the appellant as her attacker. Indeed, she did so at the very first opportunity after she awoke from a coma that resulted from her injuries. There was, therefore, no need for this evidence to fill any evidentiary gap on that central point. Because the necessity requirement could not be met, the only purpose for admitting this evidence was as a prior consistent statement by the complainant to buttress her evidence as to the identity of her attacker. Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, 2008 SCC 10, at paras. 5-7.

(b) The narrative exception

[48] My conclusion that this evidence, especially the nodding of the complainant's head, was inadmissible hearsay is not altered by attempting to have it admitted as part of the narrative. The simple fact is that there was no need for this evidence to be admitted for that purpose. No part of outlining the narrative or chain of events for the jury required its admission. The only part of the narrative that was involved at this stage was the transportation of the complainant to the hospital. That part of the narrative could have been adequately conveyed without any reference to this evidence. On this point, "narrative" is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial. The practice of using this route to admit prejudicial evidence must stop because this error will often lead to the requirement for a new trial, with the resulting hardships and expense that inevitably flow. Trial judges must be alert to the potential for such misuse and be on guard to bar this door.

(c) Spontaneous utterance

[49] On appeal, the respondent also attempts to justify the admission of this evidence as being part of the res gestae. This basis for admitting any of this evidence was not advanced at the trial. It is generally problematic to consider a basis for the admission of evidence that was not dealt with at trial, especially when the basis for admission rests on necessary factual findings that were not fully explored.

[50] The modern expression for the "res gestae" exception to the hearsay rule is "spontaneous utterance": R. v. Nurse, 2019 ONCA 260, n. 2. There is serious criticism of the use of the term "res gestae" to describe this exception. Indeed, the authors of James H. Chadbourn, ed., Wigmore on Evidence, vol. 6 (Toronto: Little, Brown Book Group Ltd., 1976), at §1767, p. 255, have this to say on the use of the term:

The phrase res gestae has long been not only entirely useless, but even positively harmful. . . . Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.

[51] That said, I do not accept that the evidence could be properly admitted on the basis of spontaneous utterance because, on the evidence before us, there was nothing apparently spontaneous about the complainant's conduct regarding the list of categories of possible attackers. Rather, the nodding or shaking of her head was the result of repeated questioning by the EMS attendant -- repeated questioning that neither of the firefighters recollects having occurred. As Catzman J.A. said in R. v. Aguilar, at para. 34:

Assuming, without deciding, that Ms. Cooper's submission is correct, I do not consider the statements in the present case to fall within the spontaneous declaration exception to the hearsay rule, for they do not attain the level of spontaneity that is an essential element of that exception. They were made in response to very particular questions . . .

(Emphasis added)

(d) Recent fabrication

[52] Lastly, there is the exception of admitting the evidence to rebut suicide or accident, in other words, to rebut recent fabrication. But, in this case, there was no suggestion of recent fabrication. The defence clearly took issue with the complainant's claim that she was attacked, along with her identification of the appellant as her attacker. Suicide or accident were other possible explanations for the incident. With respect to those explanations, however, it was never suggested that the complainant's identification of the appellant as her attacker was triggered by a motive to fabricate that arose after the statements to EMS were made. To the contrary, the defence position was that the complainant had falsely claimed an attack by the appellant from the outset.

[53] As Hourigan J.A. explained in R. v. Khan, 2017 ONCA 114, at para. 28:

For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event.

[54] There was no such triggering event in this case. The complainant did not suddenly alter her position and accuse the appellant of being her attacker after being confronted with some other fact or event. The complainant identified the appellant as her attacker from the first moment that she was physically able to do so. The defence did not suggest that a discrete event occurred after her attack that caused her to change her story.

The Proviso

[55] In the final analysis, the respondent seeks to avoid the impact of these evidentiary errors by asserting that the proviso (Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)) can be used to alleviate against their effect.

[56] The situations where the proviso is properly utilized to remedy errors made at a trial are set out in R. v. Sekhon, 2014 SCC 15, where Moldaver J. said, at para. 53:

Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.

[Citation omitted]

[57] The errors here were not harmless nor trivial and the respondent does not suggest otherwise. Rather, the respondent relies on the fact that the case was so overwhelming that the result would have been the same regardless of the errors.

[58] I do not agree. I do not dispute that the case against the appellant was a strong one, but it does not rise to the very high level of being overwhelming. There are questions that arise on the evidence, with which the jury would have had to contend, in arriving at their verdict beyond a reasonable doubt. Those questions include:

-- How did gasoline come to be inside the complainant's car including in the cup holder? -- How the appellant, if he threw the gasoline as described by the complainant, managed to not get any of the gasoline on his clothes or on the ground? -- What happened to the gasoline container? -- If the complainant crawled towards the road after being lit on fire, as she described, how did her shoes, burned hair and blood stains wind up on a pathway that led from the opposite side of the parking lot?

[59] It cannot, in my view, be said that there is no possibility that these questions, taken in conjunction with the appellant's evidence as to what he says happened, would not have led one or more jurors to have a reasonable doubt.

Conclusion

[60] Unfortunately, the evidentiary errors I have discussed infected the fairness of the trial. A new trial is required. That result is never a desirable one, but it is especially concerning, in this case, given that the events occurred more than nine years ago. However, it is a consequence that cannot be avoided.

[61] I would allow the appeal, set aside the conviction and order a new trial.

Appeal allowed.

Notes

[1] R. v. Borel, 2014 ONSC 2605.

End of Document