ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR12-70000609
DATE: 20121016

B E T W E E N:

her majesty the queen - and - Leon Alexander and Edmund Benjamin

Karen Erlick and Karen Simone for the Crown
Edward Sapiano for Leon Alexander
Stephen Bernstein for Edmund Benjamin

HEARD: October 1, 2 and 5, 2012

M. FORESTELL J.

Reasons for Ruling on

Admissibility of Hearsay Utterances of Deceased and

Hearsay utterances of Unidentified Bystanders

1. History of the Case

[ 1 ] Andy James and Brandon Ramdeen were stabbed in the early morning hours of June 21, 2009, in a Toronto parking lot, following a boat cruise event called the “Island Link-Up”.

[ 2 ] At the end of the cruise and just prior to disembarking from the boat, Mr. James and Leon Alexander (also known as “Buja”) were observed to be arguing. Mr. James had confronted Mr. Alexander about “touching” Mr. James’s girlfriend, Anna George. Mr. Alexander responded angrily and was escorted off the boat.

[ 3 ] A further confrontation between Mr. Alexander and Mr. James was observed by witnesses in the parking lot after Mr. James disembarked.

[ 4 ] Witnesses gave various accounts of who was near Mr. James during the altercation. No witness observed the actual stabbing. No witness saw any person with a knife at the time.

[ 5 ] After the confrontation, Mr. James was seen to be bleeding from a wound to his stomach. In the minutes before he went to the hospital, several people spoke to him and asked him what had happened. As set out in more detail below, Mr. James gave various responses to the inquiries. He identified ”Buja” as having stabbed him and he identified ‘Edwin’ as having stabbed him. [1]

[ 6 ] As a result of Mr. James’s statement that “Edwin” stabbed him, a number of Mr. James’s friends, including Collins George, Dexter Regis and Mr. Ramdeen, approached Edwin Modeste. A second altercation ensued and Mr. Ramdeen was stabbed.

[ 7 ] Witnesses gave various accounts of the second altercation. No witness observed the actual stabbing. Kimron Bengy made an inculpatory statement to the police in relation to the Brandon. Ramdeen stabbing.

[ 8 ] Both Andy James and Brandon Ramdeen died as a result of the stab wounds.

[ 9 ] Five men were charged in relation to the two deaths.

[ 10 ] Kimron Bengy and Edwin Modeste were jointly tried earlier this year.

[ 11 ] Mr. Bengy was tried for second degree murder in relation to Andy James and Brandon Ramdeen. He was acquitted of the charge of second degree murder of Andy James and convicted of the second degree murder of Brandon Ramdeen.

[ 12 ] Mr. Modeste was charged and convicted of the manslaughter of Brandon Ramdeen. [2]

[ 13 ] On the indictment in the current trial, Leon Alexander is charged with second degree murder in relation to the death of Andy James and with manslaughter in relation to the death of Mr. Ramdeen. Edmund Benjamin is charged with manslaughter in relation to the death of Mr. Ramdeen.

[ 14 ] Mr. Alexander and Mr. Benjamin have pleaded not guilty to the charges.

[ 15 ] Anski Julien is also charged with the manslaughter of Mr. Ramdeen. Mr. Julien will be tried separately.

2. The Nature of the Application

(a) Statements of the Deceased Andy James

[ 16 ] The Crown, as Applicant, seeks to introduce into evidence certain hearsay statements made by the deceased, Mr. James. These statements are as follows:

• Heard by Lois Harewood: “I can’t believe that guy just jumped me” (heard twice) and “I can’t believe that guy just stabbed me”

• Heard by Ms. Harewood when someone asked what happened and who did it: “That guy just stabbed me” and, “The dreadlock guy that does be with Greenz Connection just stabbed me”. (Mr. Alexander had dreadlocks at the time)

• To Ryan Noel, when asked if he was OK: “No, those boys (or them guys) hold me down and Buja stabbed me.”

• To Eric Mitchell when asked who did this to him: “Buja stabbed me”.

• Heard by Alex Lewis when someone asked who did this: “Buja, them”.

• To Ms. George as she approached: “They stabbed me” and possibly, “Buja stabbed me”.

• To Curland (Andy) Natoo when asked what happened: “Those guys stabbed me”.

• To Chester Joseph when asked, “what’s wrong” when Mr. Joseph observed Mr. James’s injuries: “Buja stabbed me”. When Mr. Joseph asked “Buja stabbed you?” Mr. James responded, “Yeah”.

[ 17 ] The Applicant submits that these statements by Mr. James are relevant to the issues of identity and to the actus reus of his murder. The Applicant submits that the statements are admissible for the truth of their contents as spontaneous exclamations or res gestae. Alternatively, the Applicant submits that the statements are admissible under the principled approach to hearsay.

[ 18 ] During the course of the trial, it is also expected that witnesses will testify that Mr. James said that Mr. Modeste stabbed him. The utterances implicating Mr. Modeste are as follows:

• Dexter Regis asked Mr. James who stabbed him and Mr. James said “Edwin stabbed me” or “Edwin juked me”. Mr. Regis did not know which Edwin it was so he asked where Edwin was. Mr. James pointed off in to the distance and said “look him up there”. Mr. Regis could not see who Mr. James was pointing at. Nonetheless, he went in that direction. He took a baseball bat from someone along the way. As he approached the person in the distance, he realized it was Mr. Modeste.

• Collins George asked what happened and Mr. James said, “Edwin and his friends stab me”.

• When they got in to the vehicle and started to drive to the hospital, Ms. George asked Mr. James, “Who did it?” He said, “Edwin”.

[ 19 ] The Applicant is not seeking to introduce the statements implicating Mr. Modeste for the truth of their contents but submits that the utterances to Mr. Regis, Ms. George and Collins George are admissible for a non-hearsay purpose, in that they explain why people confronted Mr. Modeste in the parking lot after Mr. James was stabbed. The Applicant further submits that the jury is entitled to consider these utterances in determining the ultimate reliability of the hearsay statements made by Mr. James in which he said that “Buja” stabbed him.

[ 20 ] The Respondent, Mr. Alexander, opposes the admission of all of the utterances of the deceased on the grounds that they are not reliable or alternatively, that the probative value is outweighed by the prejudicial effect of the evidence.

[ 21 ] The Respondent, Mr. Benjamin, opposes the admission of the statements heard by Mr. Noel and Mr. Natoo that “those guys” or “those boys” were responsible for the stabbing. Mr. Benjamin submits that there is a danger that the jury will use the evidence to conclude that Mr. Benjamin was involved in the stabbing of Mr. James, an offence for which he has not been charged.

(b) Statements of Unknown Bystanders

[ 22 ] The Applicant also seeks to introduce hearsay statements made by unknown bystanders who were in the area of the attack on Mr. Ramdeen and that were overheard by the witness Ryan Noel. The statements were: “leave the guy, Greenz leave the guy, you guys are going to kill the guy”, “Anski, leave him, you guys gonna kill him”, “Buja leave him, you guys gonna kill him”, “Shaggy leave him, you guys gonna kill him” and “Edwin leave him, you guys gonna kill him”.

[ 23 ] The Applicant submits that these statements are relevant to the issues of the actus reus of the death of Mr. Ramdeen and the identity of his killers. The Applicant further submits that these statements are admissible as res gestae statements or under the principled approach to hearsay.

[ 24 ] Both Respondents oppose the admission of the hearsay statements for their truth on the grounds that the hearsay does not meet the requirements of necessity or reliability under the principled approach. The Respondents also oppose admission of the statements as part of the narrative due to the overwhelming prejudicial effect of the statements.

3. The Legal Principles

The Framework

[ 25 ] The statements of Mr. James and the utterances of the bystanders are clearly relevant to live issues in the trial, that is, the identity of the killer or killers of Mr. James and Mr. Ramdeen. The statements are also clearly hearsay. They are statements tendered for the truth of their contents and there is no opportunity for contemporaneous cross-examination.

[ 26 ] The legal framework for the analysis of the admissibility of the hearsay statements is governed by the principles articulated by the Supreme Court of Canada in cases such as R. v. Starr, R. v. Mapara and R. v. Khelawon:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted under the principled approach if indicia of reliability and necessity are established on a voir dire.

(e) Even if evidence is admissible under a traditional exception or the principled approach, there is a residual discretion to exclude the evidence if its probative value is outweighed by its prejudicial effect.

The Traditional Exception: Res Gestae

[26] The traditional exception to the hearsay rule relied upon in this case is the res gestae exception. In R. v. Andrews, the House of Lords set out the following framework for a determination of whether evidence could properly be admitted under the res gestae exception:

1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error. [Emphasis added.]

[ 27 ] The general principles set out in Andrews have been adopted in several Canadian cases.

[ 28 ] The approach adopted in Praljak and Hall accords with the principles developed in the cases that have considered the interrelationship between the traditional exceptions and the principled exception to the hearsay rule.

The Principled Approach

[ 29 ] The Supreme Court of Canada in Khelawon explained that a party seeking to adduce hearsay evidence under the principled approach must establish necessity and reliability on a balance of probabilities.

[ 30 ] In this case, necessity is conceded with respect to the statements of the deceased. It is not conceded with respect to the statements of the bystanders.

[ 31 ] As Charron J. pointed out in Khelawon, in deciding the question of necessity, the court “may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party.”

[ 32 ] The reliability requirement for the admission of hearsay under the principled approach may be established by the party tendering the evidence in two ways: (1) the party may show that the circumstances in which the statement came about provide a sufficient circumstantial guarantee of trustworthiness; or (2) the party may point to the presence of adequate substitutes for the safeguards traditionally relied on to test trial evidence.

[ 33 ] As reframed by our Court of Appeal in R. v. Hamilton, Khelawon requires trial judges to ask: “On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?”

[ 34 ] Where the hearsay is identification evidence the “the ability to meaningfully cross-examine the declarant on that statement takes on added significance.”

[ 35 ] The existence of contradictory statements of a declarant is a factor to consider in the reliability assessment.

[ 36 ] The concern when determining admissibility is threshold reliability and not ultimate reliability.

Residual Discretion: Probative Value and Prejudicial Effect

[ 37 ] In Khelawon, the Supreme Court of Canada reaffirmed the discretion to exclude otherwise admissible evidence where the prejudicial effect of the evidence outweighs its probative value.

[ 38 ] Probative value is assessed by identifying the issue to which the evidence is relevant and the extent to which the evidence supports the inference that its proponent seeks to have drawn from it. Prejudicial effect may include moral prejudice, the risk of an unfocussed trial, distraction of the trier of fact and reasoning prejudice.

4. Application of the Principles

(a) The Statements of the Deceased

Res Gestae

[ 39 ] The statements that the Applicant seeks to have admitted for their truth were all made within minutes of each other. The statements were all made shortly after the declarant, Mr. James, had been stabbed in the stomach. The stabbing was clearly a dramatic and startling event.

[ 40 ] While not determinative in isolation, the factors to be considered in determining whether the statements fall within the res gestae exception in this case include the degree of contemporaneity and spontaneity of the statements, any animosity between the declarant and Mr. Alexander and any special features impacting on the likelihood of error, including the conditions which could have affected the ability of the declarant to observe and identify his assailant.

[ 41 ] The degree of spontaneity varied as between the statements.

[ 42 ] The statements initially overheard by Ms. Harewood were made closest in time to the event and they were made without questioning.

[ 43 ] A further relevant factor in this case is the evidence of animosity between Mr. James and Mr. Alexander.

[ 44 ] There are also special features in this case that give rise to the possibility of error. The primary area of concern is the misidentification of Mr. Modeste as the assailant within the same time frame as the identification of Mr. Alexander.

[ 45 ] Spontaneous exclamations are admitted under the res gestae exception because the circumstances in which they are made provide a circumstantial guarantee of trustworthiness.

[ 46 ] The stabbing in this case occurred on a dock in the early morning hours. It was dark. There were many people leaving the boat. Music was playing. The stabbing itself was not witnessed by any person in the vicinity.

[ 47 ] Mr. James then went on to identify Buja as his assailant, Edwin as his assailant and arguably a third man, “the short dark guy that does be with Anski and them”, as his assailant.

[ 48 ] I have considered the speed with which events unfolded, the darkness, the crowd, the recent altercation between Mr. Alexander and Mr. James and the fact that the majority of the statements following the first utterances to Ms. Harewood were elicited by questioning.

[ 49 ] I have therefore concluded that there is a real possibility of distortion or error.

Principled Exception

[ 50 ] Even if I am wrong in my conclusion that the utterances do not fall within the res gestae exception, I would have concluded that this is one of the rare cases in which evidence falling within an existing exception should be excluded because the indicia of reliability are lacking in the particular circumstances of the case.

[ 51 ] When I ask myself the question, “On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?”, I must conclude that the trier of fact could not do so.

[ 52 ] There are no adequate substitutes for contemporaneous cross-examination.

[ 53 ] The analysis of the admissibility of the utterances of Mr. James under the principled exception to the hearsay rule leads to the same conclusion as the res gestae analysis.

Residual Discretion

[ 54 ] Finally, even if I am wrong in my analysis of reliability, I would have excluded the utterances pursuant to my discretion to exclude evidence where its prejudicial effect outweighs its probative value.

Conclusion – Statements of the Deceased

[ 55 ] I have therefore concluded that the utterances of Mr. James are inadmissible with the exception of the initial utterances heard by Ms. Harewood: “I can’t believe that guy just jumped me” (heard twice) and “I can’t believe that guy just stabbed me”.

[ 56 ] The remaining utterances are not admissible for their truth.

(b) Statements of the Bystanders

[ 57 ] In the related trial of R. v. Bengy and Modeste, the Crown sought the admission of the utterances of the bystanders to the fight.

[ 58 ] The Applicant argues that the statements overheard by Mr. Noel can be linked to the fight that was occurring because of the evidence of Eric Mitchell that Mr. Noel held him back as Mr. Mitchell watched the fight.

[ 59 ] I therefore conclude that the statements of the bystanders are not res gestae and while they meet the necessity requirement of the principled exception, they do not meet the reliability requirement.

[ 60 ] The Applicant also argues that if the statements are not admitted for their truth, they should nevertheless be admitted for the fact that they were made and could have been heard by the participants in the fight.

[ 61 ] In light of the low probative value of the statements on the issue of self-defence and the high risk that the trier may misuse the evidence, the utterances are not admissible.

5. Conclusion

[ 62 ] The hearsay statements of the deceased, Mr. James, are inadmissible for their truth with the exception of the statements heard by Ms. Harewood: “I can’t believe that guy just jumped me” (heard twice) and “I can’t believe that guy just stabbed me”.

[ 63 ] The statements of the bystanders overheard by Mr. Noel are not admissible.

[ 64 ] No application has been brought to introduce the statements of the deceased concerning Mr. Modeste for their truth.

M. Forestell J.

Released: October 16, 2012