ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1838/15
DATE: 20151112
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PETER JINDRA KUPEC
Abby Avery, for the Crown
Kenneth Marley, for the Peter Jindra Kupec
HEARD: October 29, 2015
DESOTTI, J.
A. The Application
[1] The Crown brings an application to admit a hearsay statement of a witness, Juanita Letourneau about a statement made by the complainant, Joshua Tetreault on October 21st, 2014. The Crown submits that the statement is admissible under the ‘res gestae’ or ‘spontaneous exclamation’ exception to the rule against the admissibility of hearsay evidence.
[2] The accused, Peter Jindra Kupec is charged with a number of serious offences including an attempt to murder the complainant, Joshua Tetreault by inflaming the body of Joshua Tetreault by using an accelerant contrary to s. 239 (1) (b) of the Criminal Code. The indictment reads as follows:
That on or about the 21st day of October 2014 at the City of Sarnia, in the Province of Ontario, did attempt to murder Joshuaa James Joseph Tetreault by inflaming the body of Joshuaa James Joseph Tetreault by using an accelerant contrary to Section 239(1)(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did intentionally or recklessly cause damage by fire by using an accelerant, which fire did cause bodily harm to Joshuaa James Joseph Tetreault, contrary to Section 433(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did endanger the life of Joshuaa James Joseph Tetreault thereby committing an aggravated assault contrary to Section 268 of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the peace officer fail without lawful excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did attempt to murder David John Rose by inflaming the body of David John Rose by using an accelerant contrary to Section 239(1)(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did intentionally or recklessly cause damage by fire to a dwelling house, the property of Ken and Teresa MacLachlan, situated at 132 Alfred Street, contrary to Section 434 of the Criminal Code of Canada.
B. The Facts
[3] All of the principle parties, that is, the complainant, Joshua Tetreault, a friend/witness David Rose, and the accused, Peter Kupec, on the evening of October 20th, 2014 and into the morning of October 21st, 2014, were involved in a heavy ‘drinking binge/get to together’ at both a friend’s house, Samantha Elliott, and then later, sometime after 2:00 AM, back at the complainant’s house, a very short distance away from the Elliott residence.
[4] All the principle parties became very drunk. The complainant, Joshua Tetreault, either because of his drunkenness, described as a ten on a scale of one to ten, or his loud and verbal abuse at the Elliott residence, was asked to leave, which he did and returned back to his residence. The other two individuals, that is, David Rose, the witness, and the accused, Peter Kupec, continued to carouse and drink at the Elliott residence.
[5] Around 2:00 AM, Ms. Elliott and her friend, Amy Brown, asked the two gentlemen to leave as they had to go to bed as both had to work the next day. These two individual departed and went back to the Tetreault residence. Upon arriving, they found the lights on and the complainant, Tetreault greeted them at the door. Mr. Rose indicated that Mr. Tetreault had indicated to him that he had fallen asleep, which I infer meant that he felt less intoxicated.
[6] The three individuals continued to drink and listen to music. Some time passed. Unfortunately, as was the reality in the relationship of Mr. Kupec and the complainant, Joshua Tetreault, they began to engage in fisticuffs. Both Mr. Rose and the complainant, Joshua Tetreault, acknowledged that neither was a comparable match for the accused, Peter Kupec.
[7] Mr. Rose absented himself for a washroom attendance and when he next saw the accused and Mr. Tetreault, Mr. Tetreault had a knife in his hand that he held in a “flimsy” manner and which was easily dislodged by the accused, Kupec.
[8] As described by Mr. Rose, which evidence on this point I accept, the accused, Peter Kupec physically manhandled the accused, punching him, throwing him to the ground, and then he hit him with the base of a lamp, such that Mr. Rose believed the complainant was knocked out.
[9] The witness, Rose only intervened when it appeared that the accused was about to strike the complainant while he lay on the floor in the living room with the same lamp. Nevertheless, the accused, Peter Kupec continued to kick the complainant, Tetreault until the complainant resumed a position on the couch and then the accused, Peter Kupec is said to have struck the complainant with his fist on the complainant’s nose causing it to bleed.
[10] As testified by Mr. Rose, the complainant, Tetreault, indicated to Mr. Kupec that he would not call the police and eventually Mr. Kupek left the residence after first tossing the complainant’s cell phone into the kitchen. Mr. Rose did not have his cell phone with him.
[11] The accused, Peter Kupek returned a short time later with a small red can of gasoline and doused both Mr. Rose and the complainant, Mr. Tetreault with gasoline. On this point, I accept the evidence of Mr. Rose.
[12] Mr. Rose ran from the residence with the accused also exiting the residence calling out to Mr. Rose to return. Mr. Rose instead ran a short distance to the Samantha Elliot’s residence.
[13] He woke these women and then obtained a cell phone from Ms. Elliott wherein he dialed 911. Both of these women who were awakened smelled a strong odour of gasoline on Mr. Rose’s clothing and person. He proceeded to advise the dispatcher of what transpired and his concern for his friend, the complainant, Joshua Tetreault who remained back at his residence at 132 Alfred St. with the accused.
[14] At trial, he did not remember that he had told the dispatcher that the accused, Peter Kupek had a lighter. He could not remember this part of the conversation but did acknowledge that his statement to the dispatcher would have been fresher in his mind at that time than now a year later at trial.
[15] Upon Mr. Rose’s return to Alfred St. and the attendance of the police, he observed Mr. Tetreault emerge from his residence and initially he sat on the porch. Officer Mike Ross, who was the first officer to arrive at the scene, eventually removed Mr. Tetreault away from the porch to the curb of the street. He was assisted in this endeavour by Constable Urban, the second officer to arrive at 132 Alfred St.
[16] Mr. Rose did not observe the accused, Peter Kupek at the residence or on the street proximate to 132 Alfred St.
[17] Officer Mike Ross testified that he place the complainant, Mr. Tetreault with a female neighbour who had arrived at the scene and with Mr. Rose who remained there as well. Officer Ross and officer Urban described Mr. Rose as rather hysterical at this juncture of the evening. The two officers then entered the flaming residence yelling at anyone who might still be inside.
[18] Meanwhile, at the curbside, Ms. Letourneau urged the complainant, Mr. Tetreault to tell her what had happened. She indicated that it was then that Mr. Tetreault indicated that he had been set on fire. Ms. Letourneau asked him the name of individual who set him on fire? After some prodding and urging from his friend Mr. Rose, Ms. Letourneau indicated that the complainant, Joshua Tetreault indicated, in response to this urging the name “Pete”. Ms. Letourneau then said “Pete who”, to which Mr. Tetreault merely repeated “Pete”.
[19] Mr. Rose has no memory of Ms. Letourneau’s attendance at the curbside with the complainant, Joshua Tetreault, but does indicate in his testimony that there were in fact neighbours outside and that the street in question was in some chaos with smoke, police and fire trucks also present.
[20] The complainant, Joshua Tetreault has no memory of the critical time period immediately preceding the events of October 20th and 21st, 2014 or of the fire or how he was burned.
C. The Issues
[21] There are four significant issues arising from this application as follows:
Do the facts, which have been presented in the course of this trial and application, support this ‘res gestae’ application?
Is the statement made by the complainant, Joshua Tetreault reliable, given his state of inebriation?
Is the conversation of what was alleged to have been said by the complainant, Joshua Tetreault to the witness Juanita Letourneau reliable, given that the witness, David Rose has no recollection of Ms. Letourneau being at the curbside or any conversation amongst the three of them?
What is the effect of the Crown’s failure to comply with Rule 30 of the Criminal Rules of Practice?
D. Analysis
[22] Hearsay evidence is presumptively inadmissible. ‘Res gestae’ or a spontaneous exclamation is one of those exceptions to the hearsay rule. The rationale for such an exception stems from the belief that a person who is experiencing an intensely emotional occurrence is not usually able to conjure up a falsehood.
[23] In most cases where this hearsay exception is deemed admissible, the utterance takes place proximate in time to the ‘event’ or ‘traumatic experience’. In this sense, the spontaneous exclamation is allowed because the statement was made contemporaneously with an event that in the circumstances would exclude the possibility of concoction or distortion.
[24] Nevertheless, as pointed out in R. v. Starr, the principled approach requirements of necessity and reliability must also exist or any word or statement would still be excluded.
[25] While I accept that the complainant, Joshua Tetreault was significantly intoxicated, that does not foreclose or make inadmissible, a statement to a third party neighbour that he had been set on fire by the accused, Peter Kupec. There was nothing in this encounter and interaction amongst the three parties at the curbside that would suggest that this was a fictional, fantastical account or statement.
[26] Assuming for the moment, that the neighbour’s account of what occurred and what was said to her actually occurred, there was from her perspective a direct and responsive reply to her inquiry about what occurred and who then did this to the complainant, Joshua Tetreault. Most importantly, this response was made contemporaneously with the trauma (emotional intensity) occasioned to the complainant, Joshua Tetreault.
[27] Likewise, while there is some concern raised by counsel for the defence of the reliability of the testimony of this neighbour, Juanita Letourneau, because, based on the evidence of David Rose and Constable Shawn Urban, she was never present to make the inquiry or hear the response and thus has fabricated her interaction with the complainant, Joshua Tetreault, I am satisfied, based on the evidence of Constable Mike Ross and Ms. Letourneau, that Constable Ross and Constable Urban, before entering the burning residence, turned over Joshua Tetreault to a female neighbour at the curbside.
[28] With respect to this evidence, I conclude as did both officers, that David Rose was acting hysterical at the scene and his observations about what did or did not occur are thus skewed by his state of impairment both because of this emergent situation and his consumption of alcohol.
[29] With respect to the evidence of Constable Shawn Urban, I conclude that where his evidence differs from Officer Mike Ross, I accept the evidence of Constable Mike Ross who systematically gave his evidence in a step by step approach with clear details of what occurred and when it occurred.
[30] In fairness to Constable Urban, as he indicated, there was a great deal occurring in a short time frame and he was more focused on the complainant, the burning house, the people in the street, the billowing smoke, and the delay in the arrival of the fire truck and EMS than other details of the events that occurred.
[31] What was most persuasive in Constable Ross’ testimony was that he indicated that Constable Urban was the first to notice that the house was on fire and it was then that they both escorted the complainant, Joshua Tetreault to the street (curbside) before returning to and entering the house to determine if anyone else was in the home. Significantly, Constable Ross specifically notes the female neighbour’s presence at the curbside and then indicates that both Constable Urban and he returned to the house, leaving the complainant, Joshua Tetreault with this female neighbour and David Rose.
[32] Ms. Letourneau also gives a detailed graphic account of what the complainant, Joshua Tetreault said to her in response to her question, what she experienced upon seeing and smelling the complainant, and her significant discomfort in relaying this information to Mr. Tetreault’s mother, Teresa MacLachlan.
[33] Finally, the evidence of David Rose that the accused, Peter Kupec and the complainant, Joshua Tetreault were involved in a significant fist fight wherein the complainant was physically assaulted on numerous occasions was not seriously challenged by counsel for the accused. Also, there is clear evidence by David Rose that Peter Kupec left the residence, having been assured that no police would be called, only to return with a can of gasoline.
[34] There is also evidence that David Rose and the complainant, Joshua Tetreault were doused with gasoline. On this point there is uncontroverted evidence of David Rose, Samantha Elliott, Juanita Letourneau, Constable Ross, and the C.F.S. report along with the reality that the fire and burns to Joshua Tetreault were caused by an accelerant, namely gasoline.
[35] The final issue is more troubling as the Crown has not complied with Rule 30 and must seek leave of the court to allow this application after I first consider the impact of Rule 34.03 and its 11 subsections.
[36] Defence Counsel concedes that there is no prejudice to the accused, Peter Kupek with respect to this application. There is an explanation provided by the Crown, which I conclude is based on either too busy of a case load or the concern about whether any application should be brought at all based on the evidence and disclosure known to the Crown.
[37] I conclude that the Crown questioned whether this application would meet with success even though it had been discussed at the pre-trial. Clearly, there was no prejudice to the accused other than the additional preparation for the argument about and concerning this application.
[38] Ironically, both defence counsel and the Crown had difficulties with the merits of the application given that from the perspective of the preliminary hearing wherein only Constable Urban testified, there did not seem to be any possibility that Ms. Letourneau could have had an opportunity to question the complainant, Joshua Tetreault or to hear any response. Certainly, David Rose did not recall her involvement with the complainant, Joshua Tetreault.
[39] Furthermore, Constable Urban left the impression with both defence counsel and the Crown that he was in the presence of the complainant, Joshua Tetreault except for a momentary absence when he went into the residence to see if anyone still remained in the burning house.
[40] In other words, part of the delay in filing this application by the Crown arose because the reliability of the spontaneous exclamation of the complainant, Joshua Tetreault, as heard by the neighbour Ms. Letourneau, was in some doubt given the evidence of Constable Urban. In the course of the Crown’s submission on this point, she indicated that even the disclosure by Constable Ross did not indicate that he and Constable Urban, before entering the burning residence, had place the complainant at the curbside in the presence of a female neighbour.
[41] The Crown explained that she faxed the application to defence counsel on October 2nd, some 18 days before the trial was to start (the trial was delayed a week and started on October 26th, 2015). Defence counsel then asserts, without any real dispute from the Crown, that non-compliance with the rules continued as reflected in paragraph 8 and 10 of defence counsel’s response to this application as follows:
- On October 2, 2015 – sixteen days before the scheduled commencement of this Trial – Crown counsel faxed to counsel for the Respondent Accused a document entitled “Applicant’s Factum – Admissibility of Hearsay Statement of Juanita Letourneau”. This document failed to meet the requirements of this Honourable Court’s Rule 30 in at least the following ways:
(a) it was not delivered to counsel for the Respondent Accused and filed with the Court with proof of service at least thirty days before the day first scheduled for the hearing of the pre-trial motion or the trial, as is mandatorily required by rule 30.04;
(b) it was not a Notice of Application in Form 1, as is required by sub-rule 30.03(2), and did not set out the details required by paragraphs (a), (e) and (f) of sub-rule 30.03(2);
(c) it was not, nor was it included in, an Application Record, as is required by sub-rule 30.05(1);
(d) it was not accompanied by the materials required by paragraphs (a), (b), (c), and (d)) of sub-rule 30.05(1); and
(e) it was not accompanied by a book of authorities, as is required by sub-rule 30.05(3) and Rule 32.
- These documents fail to meet the requirements of this Honourable Court’s Rule
30 in at least the following ways:
(a) they were not delivered to counsel for the Respondent Accused and filed with the Court with proof of service at least thirty days before the day first scheduled for the hearing of the pre-trial motion or the trial, as is mandatorily required by rule 30.04;
(b) the purported Notice of Application is not a Notice of Application in Form 1, as is required by sub-rule 30.03(2);
(c) it was not included in an Application Record, as is required by sub-rule 30.05(1); and
(d) it was not accompanied by the materials required by paragraph (b) of sub-rule 30.05(1).
[42] In considering the various subsections, there is no one determinative factor that is conclusive of whether I should or should not grant leave to allow this application save and except the issue of prejudice to defence counsel. As stated, this is not advanced as a reason by defence counsel.
[43] Moreover, up to the point of the hearing the evidence of Constable Ross, the issue of leave of the court to allow the application was overshadowed by the merits of the application. In other words, other than the statement of Ms. Letourneau, there had been no reliable evidence placing the complainant, Joshua Tetreault and the witness, David Rose together with Ms. Letourneau at the curbside until Constable Ross provided this connection.
[44] Naturally, even with this revelation, there was still no direct evidence that the female neighbour was in fact Ms. Letourneau. However, for the first time the issue of reliability was no longer as tenuous as it had been prior to this testimony of Constable Ross.
[45] Section 34.03 reads as follows:
Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
(a) the nature of the applicant’s non-compliance with these rules;
(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
(e) the history of the pre-trial applications and the proceedings;
(f) any notice given to other parties about the issues raised in the pre-trial applications;
(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
(h) any prejudice to any other party in the proceeding;
(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
(j) any explanation advanced for failure to comply with these rules; and
(k) any other factors the judge considers relevant to his or her determination.
[46] The heading itself indicates “Dismissal For Non-Compliance With Rules” and as indicated compels a hearing judge to consider the various subsections before determining whether leave may be granted.
[47] Over the many years since the enactment of this Rule, many, many, many applications have been before me, where compliance with Rule 30 has been wanting. Usually, the defence counsel has failed to bring an application in a timely manner and the Crown is objecting to any leave application.
[48] Bluntly put, if there was any positive merit in defence counsel’s application or applications leave was granted because procedure should not and could not trump substance, particularly when the accused’s ability to proceed with and argue an important issue that might bear on the accused’s guilt or innocence was at stake.
[49] I am aware of one decision dealing with Rule 34.03 and the factors that a court should consider when determining whether to grant leave or not. In the case of R. v. Michael MacInnis, Karl Knight and Jeremy Brown, Justice D.S. Ferguson J. allowed a late application by the Crown with respect to an issue of voluntariness. No prejudice to the defence was advanced and the Crown did have an explanation for the late filing.
[50] In my view, the proper approach to any late filing application is to consider the scope of the disadvantage should an application be denied. Would the result be a miscarriage of justice?
[51] Normally, there is an explanation for the late filing and usually, as is the case before me, the merits of hearing the application are apparent and obvious. Furthermore, where no prejudice can be advanced by defence or the Crown, the factors in favour of granting leave to hear the application outweigh a dismissal of the application.
[52] For those reasons, I allowed the application. Obviously, when one considers a ‘res gestae’ spontaneous statement, one has to consider the circumstances upon which it was uttered. In this case, the complainant had been drinking heavily and had just been involved in a serious physical altercation with the accused. This spontaneous statement is thus, to some extent, compromised or should be given less weight than one given in more optimum circumstances.
The Honourable Mr. Justice J.A. Desotti
Released: November 12, 2015
CASES CONSIDERED
R v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.) ; R. v Esford [2003] O.J. No. 1412 (O.C.J.);
R v. M.(M.)(2001), 2001 24102 (ON CA), 156 C.C.C. (3d) 560 (Ont. C.A.); R v Dakin 1995 1106 (ON CA), [1995] O.J. No. 944 (Ont. C.A.); R. v Dessouza, 2012 ONSC 145; R. v MacInnis, Knight, Brown, [2007] Ferguson, J. S.C.J.
COURT FILE NO.: 1838/15
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PETER JINDRA KUPEC
REASONS
DESOTTI, J.
Released: November 12, 2015