ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 233/11
DATE: 2012040 3

BETWEEN:

HER MAJESTY THE QUEEN – and – Robert Byrnes Respondent

Alexander David Kurke and Natalie Boivin, for the Crown

Michael J. Venturi, for the Respondent

HEARD: March 27, 2012

DECISION ON PRE-TRIAL APPLICATIONS

R.D. Gordon j.:

Overview

1The Accused is charged on an Indictment with Attempting to Murder his ex-wife, Nicole Byrnes, and with breaking into her residence with the intent to commit an indictable offence. The offences are alleged to have been committed in the early morning hours of April 30, 2010.

2The Crown has sought a pre-trial ruling on the admissibility at trial of the following evidence:

1. A court transcript of family law proceedings between the accused and the complainant before Poupore J., on April 29, 2010; and

2. An audiotape and transcript of the 911 call initiated by the complainant on April 30, 2010 shortly after it is alleged that the accused committed the offences charged.

3The Crown has also sought a ruling on the admissibility of various utterances and statements made by the accused to persons in authority. At the outset of these pre-trial motions, counsel for the accused conceded that these statements and utterances were voluntary and therefore admissible.

Background Facts

4The complainant, Nicole Byrnes, and the accused, Robert Byrnes, were married 18 years before separating in 1999. They have two sons together, Jason and James. Both children are now adults, with Jason about 6 years older than James.

5On April 30, 2010 Jason was residing with his mother in her mobile home a 241 Jessica Street in Hanmer. James was then residing with his father at 594 Vermillion Lake Road in Chelmsford.

6Some years prior, Mr. and Mrs. Byrnes had resolved many of the issues arising out of their separation. Left outstanding was the division of Mr. Byrnes’ pension with Vale Inco, variation of child support from time to time to reflect the residence of the children and the income of their parents, and variation of spousal support paid by Mr. Byrnes to Mrs. Byrnes having regard to changes in his income.

7On April 29, 2010 Mr. and Mrs. Byrnes appeared before Poupore J. in the Superior Court of Justice to address these issues. Mr. Byrnes had been on strike from Vale Inco since June of 2009 and had determined to retire and receive his pension benefits effective February of 2010. Poupore J. indicated to the parties that Mrs. Byrnes would be entitled to about half of his monthly pension cheque.

8Later on in the afternoon of April 29, 2010 Mr. Byrnes spoke to his son Jason and apparently indicated that things were not looking good financially given that Mrs. Byrnes was seeking one half of his pension. That same evening Mr. Byrnes made a similar comment to his friend Yvon Goudreault.

9At about 9:45 on the evening of April 29, 2010 the complainant went to bed at her home. She awoke at about 1:00 a.m. to find Mr. Byrnes in the doorway to her bedroom. According to the complainant Mr. Byrnes had been drinking. He apparently approached her as she lay on the bed and asked if they could get back together. When she indicated that it was not possible the accused is said to have clamped a hand over her mouth and nose, grabbed a metal file from his back pocket, and stabbed the complainant twice in the head. Mrs. Byrnes remained conscious, was able to remove the accused’s hand from her mouth and screamed. The accused left her room and the home. Mrs. Byrnes placed a call to 911 almost immediately.

10Jason Byrnes was in his bedroom sleeping when he awoke to his mother’s scream. On leaving his bedroom he saw his mother covered in blood and speaking with the 911 operator. He too spoke with the 911 operator.

The Family Law Proceedings

11The Crown seeks to introduce the transcript of the family law proceedings under section 23 of the Canada Evidence Act, which provides as follows:

Evidence of any proceeding or record whatever of, in or before...any court in any province...may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be...under the hand or seal of the...court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the...court stenographer or other proof whatever.

12The Crown submits that the matters set out in the transcript are relevant to prove that Mr. Byrnes had a financial motive to see his wife dead and that motive is relevant to prove the intent with which Mr. Byrnes twice stabbed his wife.

13Counsel for the accused raised several objections to the introduction of the transcript: first, that given the duty of a court reporter the transcript cannot be admitted for the truth of its contents; secondly, that the inference the Crown seeks to draw from the transcript is unreliable; thirdly, that the transcript lacks context from earlier proceedings and documents filed in the family law proceedings; and lastly, that the statements attributed to Mr. Byrnes are wholly incapable of evidencing such animus as might constitute a motive to murder his ex-wife, particularly when supplemented by evidence as to Mr. Byrnes’ demeanour during the hearing and after, which was apparently normal with no indication that he was particularly upset or angry.

14Defence counsel has conceded that the Crown has met the notice provisions required under section 28 of the Canada Evidence Act.

15The Crown argued that section 23 of the Canada Evidence Act provides a statutory exception to the hearsay rule and that no further analysis need be undertaken. I do not necessarily agree. As stated in R. v. W.B.C. 2000 5659 (ON CA) , [2000] O.J. No. 397, the admissibility of a transcript of a judicial proceeding is limited to the precise scope of the recorder’s duty. In a case such as the one before me, the court reporter’s duty was to transcribe what was said and nothing more. Accordingly, the transcript can be tendered under the Canada Evidence Act as evidence of what was said at the hearing, but not for the purpose of establishing the truth of what was said. Admissibility of the transcript will therefore require a consideration of whether it is relevant, and whether it contains evidence that might otherwise be inadmissible as hearsay.

16I agree with the Crown that what was said at the family law proceeding is relevant to the case. Motive can be circumstantial evidence of intent. Given that intent is in issue in this case, whether or not Mr. Byrnes had a motive to want his ex-wife dead is of obvious relevance.

17With respect to the statements in the transcript attributed to Poupore J., it is not suggested that they be introduced for their truth. The evidence is tendered to show what Mr. Byrnes was told about his ex-wife’s entitlement to his pension and does not constitute hearsay.

18With respect to the statements in the transcript attributed to Mr. Byrnes, they constitute admissions which are admissible at his trial in any event.

19With respect to the statements of Mrs. Byrnes, they are not to be introduced for their truth, but as part of the discussion in order to provide context to the statements provided by Poupore J., and Mr. Byrnes. Accordingly, they do not constitute hearsay. In any event, she will be testifying at trial, and counsel for Mr. Byrnes will have a full opportunity to cross examine her.

20Defence counsel argued that the inference the Crown wishes to draw from the evidence, namely that Mr. Byrnes had a financial motive to see his wife dead, is unreliable. That may or may not be. That decision is for the jury to make when it considers that evidence along with any other evidence lead at trial. It is a function of the weight to be given to the evidence, not the admissibility of it.

21Defence counsel also argued that the transcript lacks the context that would be provided by other family law proceedings between Mr. and Mrs. Byrnes. However, there is nothing in the transcript itself that would lend any support to this notion and no evidence was filed on behalf of Mr. Byrnes explaining why this would be. In short, I have no evidence that any earlier proceedings between the parties would lend any required context to the transcript in question.

22Defence counsel argued that the statements attributed to Mr. Byrnes are not capable of supporting the animus or hostility required to prove a motive on his behalf. Although I would agree with counsel, overt statements or acts illustrating animus or hostility are but one means of establishing motive and defence counsel may well point to the absence of such statements or actions as being contrary to the existence of a motive. However, this argument again speaks to the weight to be given the evidence by the jury, not its admissibility.

23In all, I am satisfied that the transcript is relevant and has probative value. It does not constitute hearsay that would render it inadmissible. There has been no suggestion by counsel for the defence that there would be prejudice to Mr. Byrnes by admitting the transcript in the sense that it would be used for some purpose other than that for which it is tendered. I indicated to the Crown my concern with certain statements attributable to Mrs. Byrnes that may be used improperly by the jury. In particular, I was and remain concerned with the statements made by Mrs. Byrnes on page 14 at lines 16 and 22, and on page 15 at line 15. Unless defence counsel wishes for these statements to remain in the transcript, it is appropriate that they be redacted therefrom prior to having the transcript put before the jury.

The 911 Call

24The Crown argued that the 911 recording is admissible as a spontaneous exclamation, oft referred to as the res gestae exception to the hearsay rule. In the alternative, the Crown argued that it met the requirements for admission on a principled approach to hearsay.

25Defence counsel conceded that the 911 call placed by Mrs. Byrnes was contemporaneous with the alleged crime. Indeed, it would appear to have been initiated before Mr. Byrnes even left the residence. However, counsel objects to the admission of the 911 call on the basis that its admission is not necessary given the ability of Mrs. Byrnes and Jason Byrnes to recall what happened on the night in question. In addition, it was submitted that much of the transcript contains evidence that is immaterial, irrelevant, and prejudicial and should be excluded on an analysis of probative value versus prejudicial effect.

26There is no doubt that the 911 call was a spontaneous exclamation made all but contemporaneously with the alleged offences. As such, there was little time for concoction or deliberate distortion of the facts related. I am satisfied that the call falls under the res gestae exception to the hearsay rule.

27Defence counsel takes the position that the res gestae exception ought not to apply to situations where necessity is not made out. In a case such as the one before me, it is argued that the availability of Mrs. Byrnes and Jason Byrnes to testify about what happened on the night in question makes it unnecessary to admit the 911 call.

28Necessity is not restricted to the unavailability of the declarant. It can be made out when evidence of equivalent value to that proposed is not available from the declarant or other sources. In this instance, the 911 audio recording reflects not just what Mrs. Byrnes and Jason Byrnes will be able to testify about at trial, it reflects their immediate emotional reaction to the events and provides a more complete picture of what happened on April 30, 2010 than could be related by either of them simply offering their testimony before a jury. In this sense, the evidence is necessary in order to give the jury the best evidence possible.

29Defence counsel next argued that given the issues to be put before the jury, the probative value of the 911 call was outweighed by its prejudicial value.

30As I understood defence counsel, the actus reus for the offence of attempted murder is not at issue. That is, at trial it will be admitted that Mr. Byrnes attended the residence of the complainant in the early morning of April 30, 2010 and stabbed her twice in the head. The live issues at trial will be self defence and whether Mr. Byrnes had the specific intent to commit murder. Although Defence counsel conceded that the 911 call held much probative value in determining such things as identity, time and the weapon used in the attack, it was argued that all of those things were conceded, and there exists little in the 911 call to speak to the live issues in the case. It was argued that the horrible circumstances of the crime as related by the complainant and Jason Byrnes in the 911 call may move the jury to act on emotion as opposed to facts, to the prejudice of the accused.

31In my view, the probative value of this evidence easily outweighs its prejudicial effect. Within minutes, perhaps even seconds, of the event in question, and having been stabbed twice through the skull, Mrs. Byrnes called 911 and related to the operator what had happened. She indicated that she was sleeping in her room, that Mr. Byrnes came into her room, and that he stabbed her. She also indicated that Mr. Byrnes had been drinking. The evidence is clearly inconsistent with a self defence scenario. There is little in the statement that is prejudicial to the accused. Although the recording may well elicit some sympathy for the complainant, the jury will receive instruction and will understand that their decision is not to be based upon sympathy.

32Although the recording could be termed a prior consistent statement of the complainant, the rationale for excluding the recording on this basis, namely that the evidence may have been manufactured by the witness to bolster her evidence through repetition, is overcome by the spontaneity of the statement and the very low possibility of deliberate distortion or concoction that results.

33Although there is relatively little of probative value in the statements made by Jason Byrne in the recording, so too is there little that would be of prejudice to the accused. His statements are intertwined with those of his mother, and the jury would be best served by hearing all that was said so that there are no blanks in the recording left to speculate upon.

34It also warrants mention that both Mrs. Byrnes and Jason Byrnes will be called to testify at this trial. Accordingly, the accused will have a full opportunity to cross-examine them on not only their evidence but on the contents of the 911 call as well.

35The Crown’s application was to admit the 911 recording and the transcript from it. Although it was not touched upon in argument, it is my view that the recording alone ought to go to the jury. The transcript contains descriptive terms by the transcriber that should not be included. For example, Mrs. Byrne’s voice is described as “frantic”, she is said to have uttered a “frantic sigh”, she is said to have uttered “cries of panic”. In my view, the jury should be free to assess the call based upon the recording without these descriptors before them. If the transcript is required as an aid for the purposes of cross-examination permission may be sought for its use for that purpose.

R.D. Gordon, J