R. v. Andrew, 2021 ONCJ 653

CITATION: R. v. Andrew, 2021 ONCJ 653

DATE: December 14, 2021

ONTARIO COURT OF JUSTICE

Old City Hall - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EMMANUEL ANDREW

For the Crown D. Carbonneau

For the Defendant C. O’Connor

Trial heard: June 18, 20; August 17; Nov. 4, 2021

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Andrew is charged with one count of failing to comply with a recognizance. The Crown has proceeded summarily, and Mr. Andrew has pleaded not guilty.

[2] Police observed Mr. Andrew driving near the intersection of Front St. and Spadina Avenue, in contravention of a condition of his bail that he not be outside his residence between 10 pm and 6 am unless accompanied by his surety.

[3] Mr. Andrew concedes that he was indeed knowingly in breach of his release order but argues that he should nonetheless be found not guilty. He testified that he was on his way to his wife’s residence to assist her with a medical emergency and that he thus had a lawful excuse for breaching his bail.

[4] The Crown called only one witness: the arresting officer, Sgt. Stephen Butt. A copy of the in-car video (with audio) taken during Mr. Andrew’s arrest was filed as an exhibit.

[5] Mr. Andrew testified on his own behalf and called no other evidence.

[6] There are two principal issues to be decided in this case:

1. Has Mr. Andrew met his onus of proving on a balance of probability that, as he testified, he was responding to his wife’s medical emergency?

2. If so, was Mr. Andrew’s response to the medical emergency a lawful excuse for not complying with his release order?[^1]

B. MR. ANDREW’S TESTIMONY

[7] While it is usual to set out the evidence in the order of its presentation, because the onus of proof on the only issues before the court is on Mr. Andrew, it makes sense to review his testimony first.

[8] Mr. Andrew was 27 years old at the time of the incident. He is a personal trainer but was not working at the time of his testimony. He had no criminal record at the time of trial.

[9] At the time of the incident Mr. Andrew had been married to Erika Hildebrandt for approximately three months. They had learned only a few weeks earlier that she was pregnant with his child.

[10] At the time of the incident Mr. Andrew lived in Toronto on Davenport Road, near Christie, with one of his sureties, Desmond Cole. Mr. Andrew was aware of the condition on his release order that he not be outside that residence between 10 pm and 6 am unless in the company of one of his sureties.

[11] On the night in question Mr. Andrew was at home. Mr. Cole was not there. Mr. Andrew received a phone call from his wife who told him that she was experiencing cramps. He spoke to her for several hours and told her to call back if necessary, which she later did, to tell him that she was experiencing bleeding from her vagina.

[12] Mr. Andrew was concerned and wanted to get his wife to a hospital or help her in some way. She had no family in Toronto and thus had no one else to call. She did not drive and had no car. He told her he was going to drive over there and help her.

[13] Mr. Andrew called Mr. Cole but his phone was off. Mr. Andrew then decided to drive to his wife’s residence near Kipling and Dundas in Etobicoke. He had driven there many times before. He took the same route as usual – south on Spadina Avenue to the Gardiner Expressway, then west to Kipling.

[14] According to Mr. Andrew, he was so stressed by the situation that the idea of calling 911 did not occur to him, although he was familiar with the service.

[15] Mr. Andrew was pulled over by Sgt. Butt as he was driving south on Spadina, south of Front Street. According to Mr. Andrew he told Sgt. Butt several times that his wife was sick and made it clear to him that that was the only reason he was out of his residence in breach of his release order.

[16] Mr. Andrew denied ever telling Sgt. Butt that he had just dropped off his surety. Rather, he testified that he told Sgt. Butt that he lived with his surety, Mr. Cole.

[17] On cross-examination Mr. Andrew explained that his wife, Erika, was a server at a bar in Mississauga at the time. He routinely drove her to work.

[18] Ms. Carbonneau asked a question about his wife as a driver. She asked why she didn’t have a driver’s licence, to which Mr. Andrew responded: “ well, she just moved here from B.C.”. After disposing of an objection from Mr. O’Connor, I asked Mr. Andrew if he knew why his wife did not have a driver’s licence. He said: “She was only 23 years old. I have no idea why -– I don’t know. I don’t. I know a lot of people today who don’t have a driver’s licence. I can’t explain why they don’t have one.”

[19] Mr. Andrew did not have any records of his phone call with his wife on the night in question.

[20] When first asked why he did not give Sgt. Butt any further details as to how his wife was sick, Mr. Andrew said that it was a private sensitive matter and that Sgt. Butt didn’t seem interested. He then said that he did in fact tell Sgt. Butt that she was bleeding.

[21] When he left home that night Mr. Andrew had not yet chosen a hospital to take his wife to. He testified that he would have figured it out once he picked her up.

[22] On the second day of cross-examination, Ms. Carbonneau presented Mr. Andrew with a document that demonstrated that his wife did indeed have a driver’s licence on the evening in question. Mr. Andrew conceded that she was indeed a licensed driver at that time. When confronted with the inconsistency in his evidence on the issue he explained that he was never asked on the first day of cross-examination whether she had a licence but only whether she drove.

C. THE TESTIMONY OF SGT. STEPHEN BUTT

[23] On June 20, 2019 at approximately 4 am Sgt. Butt saw Mr. Andrew commit what he believed to be a Highway Traffic Act violation and pulled him over.

[24] After receiving Mr. Andrew’s documents, Sgt. Butt returned to his car and ran a CPIC check on Mr. Andrew. He discovered that he was subject to a release order with the condition outlined above. Sgt. Butt returned to Mr. Andrew’s driver’s door and brought the condition to Mr. Andrew’s attention. Mr. Andrew told Sgt. Butt that he had just dropped off his surety. According to Sgt. Butt, Mr. Andrew never explained why he was out of his residence that night. Sgt. Butt found Mr. Andrew to be rambling and argumentative. Sgt. Butt arrested Mr. Andrew. Mr. Andrew had his wife on his cell phone. Sgt. Butt spoke to her and explained to her why Mr. Andrew had been arrested. At no time did she ever mention being ill, or requiring medical attention.

[25] Under cross-examination Sgt. Butt initially denied that Mr. Andrew told him that his wife was sick. The video/audio from the officer’s recording device was played after which Sgt. Butt conceded that Mr. Andrew had indeed said this to him twice during his dealings with him. Mr. O’Connor suggested that Mr. Andrew told him that his wife was bleeding. Sgt. Butt denied ever hearing this. He admitted that Mr. Andrew was desperate to speak to his wife.

D. THE IN-CAR VIDEO

[26] A video/audio recording was made of the interaction between Sgt. Butt and Mr. Andrew. It also records the telephone conversation between Sgt. Butt and Mr. Andrew’s wife.

[27] At 4:01 am Sgt. Butt begins his pursuit of Mr. Andrew’s car. He pulls Mr. Andrew over just north of the Lakeshore at 4:01:50.

[28] At 4:02:46 Sgt. Butt approaches Mr. Andrew’s car on the driver’s side. Mr. Andrew rolls down his window and has a discussion with Sgt. Butt only about the suspected driving offence. Mr. Andrew says nothing about his wife needing assistance.

[29] There are further discussions regarding who owns the car, and where the car’s registration is kept. These discussions last about three minutes after which Sgt. Butt returns to his car.

[30] At 4:13:20 Sgt. Butt returns to speak to Mr. Andrew and asks him to get out of the car, telling him he is going to issue him a traffic ticket. Mr. Andrew can be heard speaking to his wife on his cell phone.

[31] Once Mr. Andrew is out of the car Sgt. Butt tells him that he has discovered that Mr. Andrew is in breach of his bail and that he is supposed to be in his residence. Mr. Andrew responds by saying: “I know that”. He says nothing about his wife’s need of assistance and his decision to take her to the hospital.

[32] Sgt. Butt refers to the bail condition and the exception to the condition when Mr. Andrew is with his surety. Mr. Andrew says: “I had my surety with me”. Mr. Andrew then expresses concern for the well being of his car.

[33] At 4:15:58, just before he is to be seated in the rear of the police car Mr. Andrew tells Sgt. Butt that he lives with his surety and for the first time says that his wife is sick.

[34] Mr. Andrew protests continually that his arrest is unfair and asks for the officer’s help. He also continues to say that his surety is “with him”. At 4:18:30 he twice reiterates that his wife is sick.

[35] At 4:20:24 Sgt. Butt begins a telephone discussion with Mr. Andrew’s wife, who identifies herself to him as Erika, who has been on the line since Mr. Andrew connected with her shortly after being stopped. Sgt. Butt explains to Erika why Mr. Andrew was arrested and that he would be taken to 14 Division. This conversation lasts for approximately eight minutes. Erika is calm throughout and asks if she should come to the police station. She and Sgt. Butt discuss the identity of “Desmond”, Mr. Andrew’s surety. At no time during this discussion does Erika ever tell Sgt. Butt that she needs medical assistance, nor does she tell him that that was why Mr. Andrew was driving that night.

[36] For several minutes before being driven away Mr. Andrew expresses concern about the safety of his car and complains several times about the cost of the tow. He tells police that he can have his wife, Erika, come and pick it up. He never tells Sgt. Butt that he was on his way to take his wife to the hospital, and that the matter was urgent.

E. THE LEGAL ISSUES CONCERNING THE EVIDENCE

(a) Ms. Hildebrandt’s failure to tell Sgt. Butt about her medical issue

[37] Nothing Ms. Hildebrandt told Sgt. Butt is admissible for its truth. What she can be heard to say on the video is hearsay and I can think of no exception to the hearsay rules that would render anything she said admissible for its truth. Neither Mr. O’Connor nor Ms. Carbonneau argue to the contrary.

[38] However, insofar as the fact that she said what she said may be relevant, what she did say is admissible on that issue. Likewise, what she did not say can, in certain circumstances, also be relevant.

[39] In this case, Ms. Carbonneau argues that if indeed Ms. Hildebrandt had been ill and knew that the reason for Mr. Edward’s breach of bail was to render her assistance, one would reasonably expect her to have said so to Sgt. Butt. Her failure to do so, she argues, is circumstantial evidence that she was not ill. Put another way, the fact that Ms. Hildebrandt said nothing to Sgt. Butt about her medical condition and the purpose of Mr. Andrew’s departure from his residence supports the proposition that she was not suffering from the cramps and bleeding that Mr. Andrew says she was experiencing. Likewise, she argues, her failure to tell Sgt. Butt that Mr. Andrew was out past his curfew because he was rushing to take her to the hospital weighs against Mr. Andrew’s credibility on this issue. Mr. O’Connor argues that in the absence of her testimony, nothing can be made of her failure to say anything about these issues to Sgt. Butt.

[40] I have found no cases directly on point, but there are two cases worth mentioning. As concerns the silence of a party to a proceeding, Martin J.A. in Regina v. Baron and Wertman, 1976 CanLII 775 (ON CA), [1976] O.J. No. 2304 said this: “The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them. Silence in such circumstances permits an inference of assent". “Where an accused, for example, does not contradict an inculpatory assertion made in his presence when one would reasonably expect him to do so, his silence is tantamount to an admission.”

[41] In my view, that principle does not apply in the case at bar. It is one thing for an accused not to contradict an allegation against him. It is entirely another for a woman who is possibly experiencing a miscarriage not to offer information to a police officer concerning the details of her predicament. In the same way as it is improper to conclude that “common sense” dictates that the victim of a sexual assault would complain to police at the earliest opportunity, it is equally improper to assume that Ms. Hildebrandt would naturally have brought her ongoing miscarriage to the attention of Sgt. Butt. Just how a woman in Ms. Hildebrandt’s position would behave if she had been experiencing this is a matter of pure speculation and does not admit of a so-called “common sense” analysis. See R. v. J.L. 2018 ONCA 756 at paras. 46 and 47; R. v. Perkins, 2007 ONCA 585; R. v. Batte, 2000 CanLII 5751 (ON CA), [2000] O.J. No. 2184 (C.A.).

[42] An argument might also be made that Ms. Hildebrandt’s silence is more akin to the statements made by the non-party, putative drug purchaser in R. v. Baldree, 203 SCC 35. In Baldree, the issue was the admissibility of certain statements made over the telephone to police by one of Baldree’s alleged drug customers. The Crown sought to rely on them as proof that the putative drug buyer was indeed a drug buyer looking to purchase drugs from Baldree. The Supreme Court ruled that the putative drug purchaser’s veiled statements of intention to purchase were tantamount to an out-of-court implied statement by the putative non-witness drug purchaser (“I am a drug purchaser”) and were thus inadmissible hearsay. While it is not necessary to go too far down this road given my earlier observations, it may well be that insofar as the Crown seeks to characterize Ms. Hildebrandt’s failure to mention vaginal bleeding as an implied assertion that she was not experiencing such bleeding, Baldree may well lead to the finding that such an implied assertion is hearsay.

(b) Mr. Andrew’s statements to Sgt. Butt

[43] Several minutes after his arrest, Mr. Andrew told Sgt. Butt that his wife was sick. This is a prior consistent statement of the accused, which in most circumstances is not admissible. R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673. One exception to this rule arises where the statement of the accused is a spontaneous exculpatory statement made upon or shortly after arrest. As Sharpe J.A. explained in R. v. Edgar, 2010 ONCA 529 at para. 72:

[I]t is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[44] I find that Mr. Andrew’s statements to Sgt. Butt that his wife was sick meet the Edgar criteria for admissibility. I will address the weight to be accorded these statements in my analysis of the evidence below.

(c) The failure to call Erika Hildebrandt as a witness

[45] Ms. Carbonneau argues that Mr. Andrew’s failure to call Erika Hildebrandt as a witness should give rise to the inference that if called, her evidence would not have supported Mr. Andrew’s defence. Mr. O’Connor argues that nothing should be made of his decision not to call her as a witness.

[46] Just what can be made of a party’s failure to call a witness depends on the circumstances. The failure of the Crown to call a witness in a criminal prosecution where the Crown bears the burden of proving guilt beyond a reasonable doubt gives rise to different considerations than the failure of the defence to call a witness in the same context.

[47] Different again are the consequences of a defendant’s failure to call a witness on a critical issue where he bears the onus of proof, such as in Mr. Andrew’s case.

[48] Because this is a criminal case where the burden is on the accused to prove a lawful excuse on a balance of probability, it is appropriate to consider both criminal and civil jurisprudence on the issue of failure to call a witness.

[49] An up to date Court of Appeal authority on this issue, in a criminal context, is R. v. N.L.P., 2013 ONCA 773. The accused was charged with sexual offences alleged to have been committed while at home with his parents. A critical part of his defence revolved about a circumstance that, according to his evidence, his father was able to corroborate. The accused failed to call his father as a witness and offered no evidence to support a finding that he was unavailable. The trial judge drew an adverse inference against the accused. Weiler J.A., at paras 67 and 68, after citing most of the relevant authorities, upheld the trial judge’s treatment of the failure to call the father as a witness saying:

This case, in my view, does fall into the category of cases where the accused in his own testimony first raises the corroborative significance of the witness to his defence. The appellant raised the corroborative significance of his father's evidence in his testimony.

The defence sowed the seeds, in chief, of an explanation for the absence of the appellant's father as a witness for the defence; the Crown could not and did not leave this explanation untested in cross examination. The fact in issue was introduced by the defence, thereby raising the corroborative significance of the missing witness to the defence. This is a situation, echoing Wigmore, where the trial judge could draw an adverse inference, since the evidentiary burden was assumed by the defence in raising the issue.

See too R. v. Degraw, 2018 ONCA 51.

[50] There are many civil cases dealing with this point of evidence. See Ben Air Systems Inc. v. Toronto Transit Commission, [2018] O.J. No. 2032, at paras. 33-38; Imperial Pacific Greenhouses v. Canada, 2011 FCA 79; Mohamed v. Canada, 2019 FC 1537.

[51] Apart from the adverse or negative inference arising from failure to call Ms. Hildebrandt, the absence of her evidence can, in another way, contribute to doubt on the issue of whether she was indeed sick that night. In cases where the Crown has the onus of proving guilt beyond a reasonable doubt, i.e. most criminal cases, an absence of evidence can raise a reasonable doubt. R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Likewise, where there is an onus of proof on an accused, albeit on a balance of probability, such as in this case, the same principle applies.

F. ANALYSIS OF THE EVIDENCE

[52] This is not a case where the concepts in R. v. W.D. 1994 CanLII 76 (SCC), [1994] S.C.J. No. 91 apply. The defence concedes that the Crown has proven the failure to comply beyond a reasonable doubt. The only live issue is whether Mr. Andrew has met his burden of proving a lawful excuse on a balance of probability. An analysis of the evidence boils down to whether Mr. Andrew’s evidence, along with other evidence I accept, convinces me on a balance of probability that Mr. Andrew had a lawful excuse for breaching his release order that night.

[53] There are several significant marks against the credibility of Mr. Andrew.

[54] When first confronted by Sgt. Butt with his bail condition, Mr. Andrew told him that he had recently had his surety with him. This, on Mr. Andrew’s own evidence, was not true.

[55] I also find that Mr. Andrew did not tell the truth in his testimony as concerns Ms. Hildebrandt’s driver’s licence. When asked why she did not have a licence he gave an explanation that let stand the assumption built into the question that she was unlicensed. His answer did not address the fact that he knew that in fact she did have a driver’s licence, which became apparent on the second day of his cross-examination.

[56] Given the circumstances of this case, I do not find that Mr. Andrew’s statements to police regarding his wife’s condition, although admissible, offer support to Mr. Andrew’s defence. Mr. Andrew testified that in his mind his wife’s plight was urgent and she needed to be taken to a hospital as soon as possible. According to him, this was the only reason he decided to breach his bail. Yet, rather than offer this explanation to Sgt. Butt immediately, he started by lying about having just been with his surety, and then put his concern about his car ahead of his concern about his wife.

[57] His statement to Sgt. Butt to the effect that his wife could come pick up the car to avoid towing fees is inconsistent with his testimony that she was at risk of losing her pregnancy and thus needed to go to the hospital as soon as possible.

[58] The above observations would have been sufficient for me to conclude that Mr. Andrew had not met the burden of proof upon him, but my conclusion is fortified by his failure to call Ms. Hildebrandt as a witness. Mr. Andrew’s defence revolved entirely around whether she was indeed ill that night. No evidence was called to suggest that she was unavailable as a witness, or that her relationship with Mr. Andrew had soured such that there was a risk she would favour the prosecution. While I would not go so far as to conclude that her evidence would have been favourable to the prosecution, the absence of her evidence further undermines Mr. Andrew’s defence.

[59] As for the evidence of Sgt. Butt, I find it to be superfluous. The video/audio record of the interaction between him and Mr. Andrew, and between him and Ms. Hildebrandt is reliable and is the best evidence. Sgt. Butt’s testimony adds nothing to it.

[60] Mr. Andrew has failed to prove on a balance of probability that his wife, Ms. Hildebrandt, was ill that night.

G. WAS MS. HIDEBRANDT’S PURPORTED MEDICAL CONDITION A ‘LAWFUL EXCUSE’ ?

[61] Although it is not necessary for me to address this issue, I will nonetheless do so since the question was argued before me.

[62] In Trotter’s Law of Bail in Canada, 3rd Edition the author says this:

The courts have sometimes recognized that exigent personal circumstances of the accused person ought to preclude a conviction under s. 145, despite the fact that all of the elements of the offence have been established. Most of these cases, which were decided in relation to charges of failing to appear and which are highly specific to the context of s. 145, may be characterized as situations of impossibility. These have included claims of medical incapacity; being in custody on another charge; and severe, inclement weather. Other claims, such as oversleeping and problems involved in leaving work, have been rejected. There are an infinite number of idiosyncratic fact situations that might provide a foundation for a “lawful excuse” of this type. The few examples provided above demonstrate that the courts take a hard look at excuses for failing to abide by bail orders and that compliance must be virtually impossible.

[63] Every case of this nature turns on its unique circumstances. On his evidence, Mr. Andrew admitted that he could have called 911 but he chose instead to go to his wife given the stress brought on by the urgency of the situation. In my opinion, had I accepted his testimony, this admission would not have disqualified Mr. Andrew’s decision to assist his wife from being a lawful excuse, and I would have ruled that he did indeed have a lawful excuse.

H. CONCLUSION

[64] For the foregoing reasons I find Mr. Andrew guilty as charged.

Released on December 14, 2021

Justice Russell Silverstein

[^1] Mr. O’Connor concedes that Mr. Andrew bears the burden of proving, on a balance of probability, that he had a lawful excuse for breaching his release order. See R. v. Santeramo, 1976 CanLII 1456 (ON CA), [1976] O.J. No. 987 (C.A.); R. v. Moser 1992 CanLII 2839 (ON CA), [1992] O.J. No. 602 (C.A.)