Ontario Court of Justice

Date: 2021 03 18 Court File No.: Toronto 20-55000875

Between: Her Majesty The Queen

— And —

Tyrone Matthews

Before: Justice Peter N. Fraser

Heard on: March 3 & 4, 2021 Hearsay Ruling released on: March 18, 2021

Counsel: A. Rajan, for the Crown H. Hussain, for the defendant Tyrone Matthews

Fraser J.:

[1] Tyrone Matthews stands charged with unlawful confinement, dangerous operation and failing to stop for police in connection with an incident on November 9, 2019. This is an application by the Crown to admit three out-of-court statements made by the complainant, Kylee Jordan-Kalina.

[2] I gave my decision on March 8, 2021, admitting one statement and excluding the other two, with reasons to follow. These are those reasons.

[3] It was alleged that Mr. Matthews held his girlfriend, Kylee Jordan-Kalina, against her will in a vehicle and led police on a high-speed chase when they attempted to intervene. She was 8 months pregnant at the time. At trial, Ms. Jordan-Kalina recanted her statement to police and claimed that she was the driver. She testified that the accused was never in the car with her that day. The Crown cross-examined the complainant pursuant to section 9(2) of the Canada Evidence Act and subsequently brought an application to tender her videotaped statement to police on March 15, 2020. The defence conceded the admissibility of the videotaped statement under the principled approach to hearsay and it was entered into evidence.

[4] The Crown now applies to tender utterances made by the complainant as recorded by the in-car camera system of a police car at the roadside. The Crown further applies to tender two additional utterances made to police officers on the day in question, which were not recorded.

[5] The Crown argues that all three statements are admissible under the spontaneous utterance exception to the hearsay rule. [1] The defence resists the admission of the statements, principally on the basis that the requirement of spontaneity is not made out in the circumstances of this case.

Background Facts

[6] On November 9, 2019 the complainant’s mother, Nicole Jordan, received a phone call from Mr. Matthews. The call came at about 4:11 p.m. She testified that she recognized Mr. Matthews’ voice and that he said, “Hi Nicky, I have Kylee.” Ms. Jordan asked to speak to her daughter, but the accused told her she couldn’t talk right now. Ms. Jordan heard muffled sounds and believed her daughter was being held against her will. She came to believe the two were driving in a car. She called 911 and gave police the description of a silver Hyundai the couple had rented together.

[7] Using GPS tracking, the police located the Silver Hyundai heading west on Highway 401 approaching Islington Avenue in Toronto. The vehicle was spotted at 5:23 p.m. Police officers boxed in the vehicle using four squad cars, with lights and sirens activated, and brought it to a stop. As officers began to exit their vehicles, the Hyundai manoeuvred through a gap between the squad cars and drove away at a high rate of speed.

[8] Officer Konkle testified that he narrowly avoided being struck as the car drove by. He further testified that he saw a male driver and a female passenger in the car. A police chase ensued, which was quickly called off on account of public safety concerns. The Hyundai exited the highway at the Islington ramp, where police officers lost sight of it. The vehicle was found nearby, stopped in front of 8 Ringway Crescent at 5:30 p.m. Ms. Jordan-Kalina was on the boulevard beside the car with no shoes on. She was upset and crying and had a bloody lip. There was no one else with her.

First Statement

[9] The first set of utterances were made to DC La Penna. He asked a series of questions that implied that he knew the driver was her boyfriend. Officer La Penna did not recall the order of the questions or record the answers verbatim. There was no audio or video recording of this interaction. The substance of Ms. Jordan-Kalina’s responses was that her boyfriend’s name was Tyrone and that he jumped out of the car when they got off the highway.

Second Statement

[10] While waiting in the back of a police squad car in front of 8 Ringway, Ms. Jordan-Kalina made a phone call to someone named Benny. Her side of the call was captured by the in-car camera system (though she cannot be seen on the video). The following words were recorded:

Hello Benny? Benny, the cops like came and stopped the car. It’s Kylee. It’s Kylee, Tyrone’s baby-mom. The cops came and like they like trapped us in and Tyrone got out of the car and started running and like now they’re impounding the car. I don’t know where he is and they’re going to arrest [inaudible]. Yeah… because we ran. And cause they said there’s a car, a gun in the car… The cops, and there’s not. And I don’t know what to do, I don’t know what to do. And I told him I was going to call you… By like Weston Road, I don’t know… yeah, I need them to let me out of here, hold on. They have me in the back of the fucking cruiser, they won’t let me get out, yeah… No I can’t… I don’t know what to do. He asked me, he doesn’t have your number or anything… yeah, like, I’m using the phone, and my sim card in.

Third Statement

[11] The third statement was made to Sgt. Binh Tu, sometime after 6:00 p.m. at 22 Division police station. When Sgt. Tu said she was concerned about the unborn baby, Ms. Jordan-Kalina is said to have responded, “I know he didn’t care about baby driving like that.” There was no audio or video recording of this exchange.

The Spontaneous Utterance Exception to the Hearsay Rule

[12] I begin by addressing the second statement, which was the most substantial of the three and was captured by the in-car camera system.

[13] Hearsay statements are generally inadmissible for the truth of their contents. However, the general rule admits of many exceptions, both under the principled approach to hearsay and pursuant to the traditional hearsay exceptions developed over many years at common law. The continued function of the traditional hearsay exceptions was succinctly summarized by the Court of Appeal in R. v. Nurse, 2019 ONCA 260 at paras. 59-61:

Since adopting the principled approach to hearsay, the Supreme Court has confirmed the continuing relevance of the traditional exceptions to the hearsay rule: see Starr, at paras. 202-207, per Iacobucci J.; Mapara, at para. 15; and Khelawon, at paras. 42, 60. In Khelawon, at para. 60, Charron J. held that, if a trial judge determines that evidence falls within one of the common law exceptions, this finding is "conclusive", and the evidence is admissible.

In Mapara, the court recognized that this conclusion may be displaced when the exception itself is challenged: at para. 15; see also Khelawon, at para. 60. That is not the case here; neither exception is under attack on a categorical basis.

The Supreme Court has also recognized that, in "rare cases", evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case. In Starr, Iacobucci J. wrote, at para. 214: "However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible." See also Mapara, at para. 15.

[14] The exception for spontaneous utterances has been historically, and somewhat imprecisely, referred to as res gestae: see R. v. Borel, 2021 ONCA 16 at para. 50 and R. v. Camara, 2021 ONCA 79 at para. 85. The Ontario Court of Appeal explained the rationale for the exception in R. v. Khan, [1988] O.J. No. 578, affirmed, [1990] S.C.R. 531:

...a spontaneous statement made under the stress or pressure of a dramatic or startling act or 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. [Emphasis added.]

[15] The passage above reveals that a spontaneous utterance becomes admissible where the possibility of concoction can safely be discounted based on the circumstances in which the statement was made: see also R. v. Nurse, supra, at paras. 77-88. And as the Court of Appeal recently observed in R. v. Camara, supra, at para. 85, the doctrine posits that the mind of the declarant is “so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction.”

[16] In this case, the defence argues there is insufficient evidence of the time of this utterance, as the timestamp on the in-car camera video was not authenticated in court. It is argued that the requirement of spontaneity is not made out.

[17] In R. v. Dakin, [1995] O.J. No. 944 (Ont. C.A.) at para. 20, the Court of Appeal confirmed that strict contemporaneity was not required and noted that the admission of such statements is to be assessed, “not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion.” The Court of Appeal revisited the issue of strict contemporaneity more recently in R. v. Nguyen, 2015 ONCA 278 at para. 150:

The case law makes it clear that each case must be assessed on its own unique circumstances to determine whether there are sufficient assurances of reliability. So, for example, the Supreme Court held in Khan, at p. 540 S.C.R., that a child's statement made 15 minutes after leaving the doctor's office where she had been assaulted and approximately 30 minutes after the assault itself, was not sufficiently contemporaneous because it was not "made under pressure or emotional intensity which would give the guarantee of reliability". In Dakin, however, statements made by burn victims over 45 minutes after the event (a fire) were admitted as spontaneous declarations. And, in R. v. Michaud, [2004] O.J. No. 2098, , a statement made by the victim within an hour and half of the assault was found to be admissible as a spontaneous declaration.

[18] In the case before me, the precise timing of the utterance is not clear. However, Ms. Jordan-Kalina was found in front of 8 Ringway at 5:30 p.m. and did not remain there for very long. Officer Tu spoke to her at 22 Division Police Station following an interview of Nicole Jordan that began at 6:04pm. I find that the utterance was proximate in time to the police chase. Moreover, the stressful sequence of events that triggered the utterance was still unfolding when the statement was made.

[19] Ms. Jordan-Kalina was still at the roadside when she called Benny. She had been injured in a high-speed police chase while she was eight months pregnant. She had a swollen, bloody lip and no shoes on. She was in the back of a police squad car and expressed the belief that she couldn’t get out, having been told that police suspected there was a gun in the car. It is clear from the recording of the call that the complainant was distraught when she spoke to Benny. She repeatedly says, “I don’t know what to do.” She sounds panicked and upset, can be heard banging on the window, and is at times audibly overcome with emotion.

[20] I find that the utterance falls within the ambit of the spontaneous utterance exception to the hearsay rule. Ms. Jordan-Kalina was consumed by the stress and pressure of the event such that the possibility of concoction can be safely discounted to the extent necessary to satisfy threshold reliability. The utterance captured by the in-car camera will be admitted.

The Remaining Statements

[21] I decline to admit the remaining two statements. The first one to Officer La Penna came in response to leading questions, which undercuts the element of spontaneity that animates this traditional hearsay exception. Furthermore, there is no video or audio recording and no clear record of the questions asked, their sequence, or the precise wording of the answers.

[22] The third statement to Officer Tu occurred after the complainant had left the roadside and attended 22 Division. This exchange was not video or audio recorded either. There is no evidence that Ms. Jordan-Kalina was still being affected by the same kind of stress and pressure as she was at the roadside. I find the passage of time and the change of location take this utterance outside the ambit of the spontaneous utterance exception to the hearsay rule.

Released: March 18, 2021 Signed: Justice Peter N. Fraser

Footnote

[1] Given my ruling on the application of the hearsay exception, I need not address the Crown’s alternative submission that the in-car camera statement is also admissible pursuant to the principled approach to hearsay.