ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-7000140
DATE: 20120731
B E T W E E N:
her majesty the queen - and - KIMRON BENGY and EDWIN MODESTE
Meghan Scott and Robert Wright for the Crown Adam Bernstein and Scarlet Smith for the Accused Kimron Bengy Michael Moon and Aarika Heath for the Accused Edwin Modeste
HEARD: February 6, 7, 16 &17, 2012
M. FORESTELL J.
RULING RE ADMISSIBILITY OF HEARSAY
Background
[ 1 ] Kimron Bengy, is charged with two counts of second degree murder in relation to the stabbing deaths of Andy James and Brandon Ramdeen. Edwin Modeste is charged on the same indictment with the manslaughter of Brandon Ramdeen. Three other men are charged separately in relation to the two stabbings: Leon Alexander, for the second degree murder of Andy James and the manslaughter of Brandon Ramdeen; Anski Julien, for the manslaughter of Brandon Ramdeen; and Edmund Benjamin, for the manslaughter of Brandon Ramdeen.
[ 2 ] The five men charged in relation to the homicides and the two deceased men all attended a boat cruise in the Toronto Harbour on June 20, 2009.
[ 3 ] A dispute broke out in the early morning hours of June 21, 2009, after the boat docked. The first dispute began on the boat and initially involved the victim, Andy James, and one of the separately charged accused, Leon Alexander (a.k.a. “Budja”). Leon Alexander was removed from the boat. Andy James remained on the boat for a short time and then disembarked. The dispute recommenced in the parking lot. Witnesses will testify that they saw Andy James involved in a brief physical altercation with Leon Alexander. There is evidence that friends of Leon Alexander were nearby. The two were separated. After they were separated, Andy James was seen to have been stabbed.
[ 4 ] Andy James made several statements to friends after he was stabbed. In some of those statements he attributed responsibility for the stabbing to Edwin Modeste. As a result, at least two of Andy James’ friends confronted Edwin Modeste. This led to the second altercation. Edwin Modeste, Brandon Ramdeen and possibly others, were involved in the second struggle. Some of Edwin Modeste’s friends were seen to intervene. Brandon Ramdeen was stabbed.
[ 5 ] Andy James and Brandon Ramdeen both died from their injuries.
The Nature of the Application
[ 6 ] The Crown brought an application to introduce hearsay evidence. There were several hearsay statements that the Crown sought to introduce. Some were conceded to be admissible and others are contested. For context I will set out the declarations whose admissibility is not contested. I will then address the admissibility of the contested hearsay.
[ 7 ] The utterances which are conceded to be admissible are the following declarations of Andy James to various friends after he was stabbed:
Heard by Lois Harewood ‑ After she observed Mr. James fighting with Mr. Alexander, Mr. James said (twice), “I can’t believe that guy just jumped me”. This evidence is conceded by counsel for both accused to be admissible for the truth of its contents.
To Lois Harewood ‑ after she went over to him and he lifted his shirt to reveal a wound and blood, Mr. James said (twice) “I can’t believe that guy just stabbed me.” This evidence is conceded by counsel for both accused to be admissible for the truth of its contents.
To Mr. Ramdeen but heard by Lois Harewood ‑ After Mr. Ramdeen asked “What happened?” Mr. James replied, “That guy just stabbed me.” And after Mr. Ramdeen asked “Who?” Mr. James responded, “The dreadlock guy that’s be with Anski, that’s be with Green Connection, he just stabbed me.” This evidence is conceded by counsel for both accused to be admissible for the truth of its contents.
To Eric Mitchell ‑ When asked what happened, Mr. James said, “I got stabbed”, and when asked who did it, he said, “Budja.” This evidence is conceded by counsel for both accused to be admissible for the truth of its contents.
To Alex Lewis ‑ When asked what happened, Mr. James said, “I was stabbed” and when asked who did it, “Budja them.” This evidence is conceded by counsel for both accused to be admissible for the truth of its contents.
To Anna George – “They stabbed me. They stabbed me”. This is conceded to be admissible for the truth of its contents.
To Dexter Regis ‑ When asked, “Who did that to you? Who stabbed you?” Mr. James responded, “Edwin stabbed me” or “Edwin juked me.” This evidence is not being introduced for the truth of its contents and is conceded to be admissible to show the state of mind of the men who confronted Edwin Modeste and accused him of stabbing Andy James.
To Collins George ‑ When asked who did this, Mr. James said “Edwin and them stabbed me” And, “Look him down there” pointing at Mr. Modeste. This evidence is not being introduced for the truth of its contents and is conceded to be admissible to show the state of mind of the men who confronted Edwin Modeste and accused him of stabbing Andy James.
[ 8 ] The admissibility of the following evidence is contested:
The evidence of Ryan Noel that he heard Andy James say “Budja stabbed me” and words to the effect of, “Those boys there hold me down so that Budja stab me.” and,
The evidence of Ryan Noel that the bystanders to the fight involving Brandon Ramdeen said “Leave the guy, leave the guy, you gonna kill the guy. Edwin leave the guy, Edwin leave the guy. Anski leave the guy, Anski, Anski, you guys going to kill the guy, you guys going to kill the guy. Greenz, leave the guy.” [1]
1. The evidence of Ryan Noel that he heard Andy James say “Budja stabbed me” and words to the effect of, “Those boys there hold me down so that Budja stab me.”
The Evidence
[ 9 ] Ryan Noel testified on the voir dire into the admissibility of this evidence. Mr. Noel testified that he was present in the parking lot after Mr. James was stabbed and that he heard Mr. James utter the words set out above. He left the area just after the second altercation. He gave his name to the police when he left, but told them that he did not want to talk to them at the time. He did not go to the police afterwards. The police contacted him in January of 2012.
[ 10 ] Mr. Noel confirmed that he was friends with Eric Mitchell. He denied discussing his observations with Mr. Mitchell or others.
[ 11 ] Mr. Noel claimed in his evidence to have a clear memory of the exact words spoken by Mr. James in spite of the passage of two and one-half years. He took no notes of the events at the time.
[ 12 ] Mr. Noel also testified as to his observations of the two altercations. The evidence of his observations is clearly admissible and will not be reviewed in these reasons.
Positions of the Parties
[ 13 ] The position of the Crown is that the ante-mortem utterances of Andy James, heard by Ryan Noel are admissible as res gestae.
[ 14 ] Counsel for Mr. Bengy concedes that the utterances fall within the res gestae exception to the hearsay rule and raises no issue as to the reliability of the utterances but argues that they should be excluded because the potential prejudicial effect exceeds the probative value of the evidence.
[ 15 ] Counsel for Mr. Modeste concedes that the utterances fall within the traditional res gestae exception, but argues that the prejudicial effect exceeds the probative value because of the unreliability of Mr. Noel and should be excluded on that basis.
Analysis
[ 16 ] The evidence is clearly hearsay and it is clearly relevant. The first line of inquiry dictated by the functional approach described in R. v. Khelawon [2] is to determine whether it falls in to a recognized exception. There is no issue that the utterance meets the requirements of the res gestae exception. The statement was made spontaneously and proximate in time to the startling event – the stabbing.
[ 17 ] Even if a statement falls within a recognized exception, if the opposing party demonstrates on a balance of probabilities that the statement is not reliable it will be excluded. Even if the statement is not found to be unreliable, the trial judge may exclude the statement if its prejudicial effect exceeds its probative value.
[ 18 ] Reliability of the statement refers to the reliability of the declarant and not to the reliability of the recipient. However, as the Court of Appeal held in R. v. Humaid [3] and the Supreme Court of Canada adopted in R. v. Blackman [4] , there may be cases where the credibility of the recipient is so deficient that the statement should not be admitted. Where the issue is the unreliability of the recipient of the utterance, the utterance may be excluded pursuant to the residual discretion of the trial judge to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect.
[ 19 ] Mr. Bengy and Mr. Modeste both argue that the statement is not reliable. The lack of reliability is said to arise from the unreliability of the recipient of the statement, Mr. Noel. As noted above, Mr. Noel did not come forward for over two years. There are inconsistencies between his evidence and the evidence of other witnesses. He can be argued to be aligned with the deceased and his friends.
[ 20 ] While these are all factors going to the ultimate credibility and reliability of the evidence of Mr. Noel, they do not render his account so unreliable that it should not be received. Cross-examination of Mr. Noel will be an effective means of addressing any hearsay dangers arising from Mr. Noel’s frailties.
Conclusion
[ 21 ] I find that the statement reported by Mr. Noel is admissible. Mr. Noel is not so unreliable that the statement should be excluded. The statement has significant probative value because it includes a statement as to the respective roles of the participants in the fight. There is little if any prejudicial effect because the weakness of Mr. Noel as a witness can be fully explored on cross-examination.
2. The evidence of Ryan Noel as to the utterances of the bystanders
The Evidence
[ 22 ] Mr. Noel testified that he heard bystanders calling out from the area of the altercation. He heard people say, “you guys gonna kill the guy; Greens, leave the guy; you guys leave the guy.” He testified that he heard the bystanders also call out the names Shaggy, Anski, Budja and Edwin. He could hear ‘lashes’ or blows at the same time. He could not tell who was saying these things. He did not recognize the voices.
The Positions of the Parties
[ 23 ] The Crown submits that the exclamations of the bystanders are res gestae utterances and are admissible under the res gestae exception to the hearsay rule.
[ 24 ] Counsel for Mr. Bengy concedes that they are res gestae , but argues that they are not reliable. Alternatively, he argues that the prejudicial effect exceeds the probative value of the evidence.
[ 25 ] Counsel for Mr. Modeste submits that the utterances are not res gestae statements and are not admissible for their truth under that exception. Alternatively, he argues that they are inadmissible because they are not reliable. In the further alternative, he argues that the prejudicial effect exceeds the probative value.
[ 26 ] Counsel have conceded that the statements of the bystanders are admissible for the fact that they were made because they are relevant to the defence of self defence. The statements, if the jury accepts that they were made, could have been audible to the accused and would be relevant to the state of mind of the accused and the amount of force that was used.
[ 27 ] The issue on this application therefore is not whether the statements are admissible, but whether they are admissible for their truth.
Analysis
[ 28 ] On the facts of this case, I do not find that the statements fall within the res gestae exception. In R. v. Hall , [5] Archibald J. provides a review of the jurisprudence on res gestae . As he sets out, there are three criteria to be met for a statement to be classified as res gestae :
the statement was made under the ongoing stress or pressure of a dramatic or startling act or event;
the statement relates to the occasion that caused the stress or pressure; and
there is little if no possibility of concoction or fabrication.
[ 29 ] The statements in this case do not meet the first or third criteria. The evidence is not clear as to the events that were occurring when the comments were heard. The effect of the fight on the bystanders – whether it caused them stress or pressure ‑ cannot be known because there is nothing known about the declarants. The motivation of the declarants cannot be known and therefore the possibility of fabrication or concoction cannot be assessed.
[ 30 ] In R. v. Jobidon [6] , Campbell J. admitted evidence of the statements of unidentified bystanders for the truth of the contents of the statements under the res gestae exception. In that case, one of the issues was whether the fight was consensual. The statements were admitted as evidence of the character of the fight. The Crown relies on Jobidon to support the position that the statements are admissible. The evidence in Jobidon was that the fight was underway when people started to grab the accused. The onlookers yelled “Leave him alone, it’s a fair fight” or, “Stop, it’s a fair fight.” The witnesses backed off in response to the statement that it was a fair fight. Campbell J. found that the witnesses, in backing off in response to the utterances of the bystanders, confirmed the reasonableness of the statements by their conduct and thereby ‘adopted’ the statements.
[ 31 ] The crucial difference in the evidence in the case before me is that there is no witness who ‘adopted’ the statements of the bystanders. In Jobidon , the witnesses who testified as to the statements were in a position to attest to the circumstances that led to the statements. In this case, Mr. Noel heard the statements, but was not in a position to assess the reasonableness of the statements. He could not adopt the statements. The bystanders are unidentified and unavailable to testify.
[ 32 ] Even if I had found that the statements met the criteria for res gestae , I would not have admitted them as I find that they are not reliable. This is because there is nothing known about the declarants and the association of the declarants with the events or the participants. There is no evidence of reliability. This is not a case, like R. v. Chrisanthopoulos [7] where the the striking similarities between the event described by the unknown declarant and the events that occurred shortly thereafter provide evidence of reliability.
[ 33 ] In light of the findings that I have made with respect to the lack of reliability of the statements, it follows that I would not have found them to be admissible under the principled exception to the hearsay rule.
[ 34 ] Finally, even if the statements could be found to be reliable, the potential prejudice far outweighs the probative value and I would have exercised my discretion to exclude them. The prejudice arises from the unfairness of admitting statements from unidentified declarants in circumstances where there is no effective means of challenging the content of the statements. The probative value of the statements is very limited. There are witnesses available who actually saw the fight. The ‘descriptions’ contained in the utterances of the unidentified bystanders add little if anything to the observations of the witnesses who are available to testify. It has been argued that the utterances of the bystanders have value because many of the other witnesses are associated with one side or another of the dispute. This argument serves to illustrate the dangers of the admission of the evidence in the circumstances since there is no way to assess the allegiances of the unknown declarants. It would be wrong to assume their neutrality in the absence of evidence.
Conclusion
[ 35 ] I have therefore concluded that the statements of the bystanders to the fight as overheard by Mr. Noel are not admissible for their truth. As conceded by counsel, the jury is entitled to hear the evidence of the statements, but will be instructed that they can only use the statements as evidence of utterances that may have been audible to the accused during the fight.
M. Forestell J.
Released: July 31, 2012
COURT FILE NO.: CR12-7000140
DATE: 20120731
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
her majesty the queen - and - KIMRON BENGY and EDWIN MODESTE
RULING ON ADMISSIBILITY OF RES GESTAE STATEMENTS REPORTED BY RYAN NOEL M. Forestell J.
Released: July 31, 2012
[1] As set out below, it is not disputed that the evidence of the statements of the bystanders is relevant and admissible for the non-hearsay purpose that the words were said. It is the hearsay purpose that is contested.
[2] 2006 SCC 57 , [2006] 2 S.C.R. 787
[3] R. v. Humaid (2006), 208 C.C.C. (3d) 43 (Ont. C.A.) at para. 57
[4] R. v. Blackman , 2008 SCC 37 , [2008] S.C.J. No. 38 at para. 51
[5] 2011 ONSC 5628 , [2011] O.J. No. 5109 (S.C.J.)
[6] [1987] O.J. No. 812 (H.C.J.)
[7] [2003] O.J. No. 5252 (C.A.)