CITATION: R. v. Tavares, 2015 ONSC 2603
COURT FILE NO.: CR-13-225
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSHUA TAVARES
Defendant
R. Williams, for the Crown
R. Baran, for the Defendant
HEARD: April 20, 2015
RULING ON APPLICATION RE: STATEMENTS
DOUGLAS J.
[1] The Defendant, Mr. Joshua Tavares, makes application for an order allowing into evidence the statements made by him to police upon being physically restrained by Sergeant Pileggi of the OPP and statements subsequently made to Sergeant Cartwright at the Huronia West OPP detachment on May 21, 2012 on the basis that the statements ought to be admitted for their truth pursuant to the doctrine of res gestae and as evidence of the reaction, demeanour and emotional state of the Defendant and as proof of consistency pursuant to the rule in R. v Edgar 2010 ONCA 529, [2010] O.J. No. 3152 (Ont. C.A.).
[2] The court heard evidence from two witnesses on this application, Sergeant Cartwright and the Defendant himself. The Crown did not adduce any evidence.
[3] The facts in support of this application are not in serious dispute.
[4] Cartwright testified that his first contact with the Defendant was at 0326 hours on May 21, 2012. He responded to a request for assistance emanating from officers already on the scene. Upon arrival he was asked to take the Defendant, who was already under arrest, back to the detachment. He placed the Defendant in the back of his marked cruiser. He repeatedly told the Defendant not to say anything while en route to the detachment. The Defendant repeatedly pleaded his innocence en route. The Defendant said “That’s not my gun” several times. The Defendant was upset. The statements made by the Defendant were not responsive to any questions put to him by Cartwright. After arriving at the detachment at 0330 hours the Defendant repeated that the gun was not his and said just because he was standing beside where the officer found the gun did not mean it was his. The Defendant was again encouraged not to say anything. He was upset and stressed. While en route he was in handcuffs and was still in handcuffs when he made this statement. The Defendant was very cooperative.
[5] The Defendant testified that he was standing in the parking lot behind Bananas Bar in Wasaga Beach when Sergeant Pileggi grabbed him and threw him to the ground. While pinned to the ground Officer Hamilton nudged with his foot a bag under a nearby car and yelled “Gun!” Pileggi then arrested the Defendant. “Right away” the Defendant “told them it wasn’t mine”. He was shocked and felt like his life was over. He said at least 2 to 3 times that it was not his. He repeated this en route to the detachment and at the detachment. En route to the detachment Cartwright was telling him to be quiet, but that did not stop him repeating 3 to 4 times that the gun was not his. It took 5 to 10 minutes to get to the detachment. When he was in a cell he was “really freaking out”. He kept “telling them it wasn’t mine.” It was possible he said that just because the gun was found near him did not mean it was his, but he was not sure. He was not concerned until Hamilton yelled “Gun!” He was in the back of the cruiser for about 10 mins before departing with Cartwright for the detachment. While in the cell he said at least 20 to 100 times that the gun was not his.
[6] For ease of reference counsel have agreed to group the statements in accordance with where it is alleged they were uttered, as follows:
(a) those made at the scene at time of arrest (hereinafter the “arrest statements”)
(b) those made in the police cruiser to Sergeant Cartwright en route to the detachment (hereinafter the “cruiser statements”)
(c) those made at the detachment (hereinafter the “detachment statements”).
[7] The Crown concedes that the arrest statements fall within the definition of res gestae. I agree with this assessment as the evidence supports the conclusion that virtually immediately upon a gun being located nearby the Defendant proclaimed it was not his. The immediacy of the utterance creates a temporal link between the words spoken and the events then unfolding, and it reduces the possibility of concoction. Therefore, the application is granted in respect of the arrest statements as res gestae. The Crown will of course remain free to challenge or contradict this evidence.
[8] Regarding the cruiser and detachment statements, it is the Crown’s position that such do not qualify as res gestae and thus cannot be admitted as original evidence; however, the Crown concedes that pursuant to the rule in Edgar these statements can be received in evidence if and when the Defendant elects to give evidence and submit to cross-examination. This evidence is not strictly evidence of the truth of what was said, but is evidence of the reaction of the Defendant, which is relevant to his credibility and as circumstantial evidence that may have a bearing on guilt or innocence (see Edgar, at para. 72).
[9] As a consequence of the foregoing the only issue before me is whether the cruiser and detachment statements fall within the definition of res gestae.
[10] There is no disagreement between the parties as to the principles applicable to this remaining issue.
[11] The courts have identified two situations in which the res gestae doctrine may be invoked: first, declarations accompanying and explaining relevant acts, and second, spontaneous exclamations.
[12] To qualify for admission under the first category the words must be so inter-related to a fact in issue that they become part of the fact itself. The words must introduce the fact in issue and explain its nature or form in connection with it in one continuous transaction.
[13] To qualify for admission under the second category the words must be the result of a startling occurrence or excitement-provoking event. The words need not be spoken strictly contemporaneously with the occurrence; however, the stress or pressure from the event must be ongoing at the time the words were spoken and the statement must be made before there has been time to contrive or misrepresent.
[14] The Defendant submits that the cruiser and detachment statements were spontaneous, made sufficiently contemporaneously with the event and consistent with the statements made upon arrest such that there could be no concern regarding concoction or fabrication.
[15] Res gestae statements need not be made strictly contemporaneously 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 or misrepresent (emphasis added)(see R. v Nicholas 2004 CanLII 13008 (ON CA), [2004] O.J. No. 725 (Ont. C.A.)). This rule is conjunctive and requires both elements to be satisfied.
[16] The Defendant submits that the “ultimate test is spontaneity or instinctiveness and logical relation to the main event.” I agree; however, at some point spontaneity, that is an action performed as a result of a sudden inner impulse, gives way to something less once that inner impulse has expressed itself. Repetition of the original, impulsive action or words does not propagate the spontaneity.
[17] After arrest the Defendant was placed in the cruiser and had approximately 10 minutes to possibly concoct or fabricate his defence. Following that there was a 5 to 10 minute ride to the detachment and thereafter several hours in the detachment. Very little time is required to develop a defence as simple and straightforward as “it’s not mine”.
[18] A review of the cases addressing the temporal issue confirms that no hard and fast rule emerges. In Nicholas for example the Crown sought to introduce as res gestae a complainant’s 911 call placed 10 minutes after her assailant’s departure. The Court of Appeal held that such was admissible as res gestae given the insufficient time to fabricate; however, the Nicholas case was about a brutal sexual assault upon a 54 year old victim and a delay of 10 minutes before calling 911 and leaving an 11 minute statement was considered insufficient time to fabricate. In the case before me, the statements are extremely brief and pertain to a very straightforward defence, contrasted with the lengthy statement in Nicholas in relation to a much more complicated event. In R. v Ye 2013 ONSC 7251, [2013] O.J. No. 5751 (S.C.J.) the court concluded that a statement 20 minutes following a shooting that it was an accident was not sufficiently contemporaneous with the occurrence to qualify as res gestae. The stress or pressure of the event was dissipating and the actions of the accused following the occurrence created a temporal separation between the occurrence and the statement.
[19] Each case must be determined on its facts in the overall context. What may seem in one case a sufficiently short time frame upon which to establish res gestae will be insufficient in another.
[20] In this case the cruiser and detachment statements are temporally distinguished from the arrest statements after which the Defendant was handcuffed, formally arrested, given his rights to counsel, cautioned and left alone for 10 minutes to sit and contemplate his situation in the cruiser before departing for the detachment. All of these factors serve to sever the temporal and logical connection between the events that inspired the original utterances (the arrest statements) and those that followed; as a consequence I reject the Defendant’s submission of a continuous transaction starting with the arrest statements and concluding with the detachment statements.
[21] The possibility of fabrication can never be eliminated. Reduction to a level where it can be safely disregarded is the best for which one might realistically hope within the res gestae doctrine. The Defendant argues that the consistency of the cruiser and detachment statements with the arrest statements provides an assurance that there has been no fabrication. I disagree as this submission assumes the impossibility of fabrication of the arrest statements.
[22] In the result and for the foregoing reasons I order as follows:
(i) The Application is granted in respect of the arrest statements. Such may be admitted as res gestae.
(ii) Regarding the cruiser and detachment statements, same may be admitted as evidence of the reaction of the Defendant to the accusation and as proof of consistency, provided he takes the stand to give evidence.
(iii) The cruiser and detachment statements will not be admitted as res gestae.
DOUGLAS J.
Released: April 21, 2015