Court File and Parties
COURT FILE NO.: CR-13-803 DATE: 20170127 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – ANNA TRUBASHNIK Appellant
COUNSEL: K. Hull, for the Respondent M. Sandler, for the Appellant
HEARD: January 16, 2017
REASONS FOR DECISION ON APPEAL FROM THE DECISION OF MR. JUSTICE E. MEIJERS DATED MAY 27, 2015
MULLIGAN J.
[1] Anna Trubashnik (the Appellant) appeals her conviction for the offence of public mischief based on the Judgment of His Honour, Justice E. J. Meijers following a two-day trial April 20 and 21, 2015, Judgment was reserved and rendered on May 27, 2015.
[2] The basis of the Appellant’s appeal is captured in paragraph five of its factum:
This appeal is based both on errors committed by the Trial Judge, and upon an application for fresh evidence to admit both the Appellant’s lengthy interview with the police and medical evidence to prevent a miscarriage of justice.
[3] The Crown opposes the appeal on the basis that the videotaped statement of the Appellant is not admissible at law. Although it was available at trial, there was no application by the Defence to seek a ruling on its admissibility. In addition, medical evidence about the Appellant was available at trial but not introduced.
The Background Facts
[4] At 10:37 on March 8, 2014, the Appellant made a 9-1-1 call from downtown Barrie reporting that she had been pushed into the snow by a man who took her purse. Prior to making the call she walked a short distance from the scene of the alleged robbery to the Barrie Police sub-station downtown. That sub-station was closed so she made a 9-1-1 call. An officer was dispatched. He interviewed her and took her to the location of the alleged robbery. He indicated to her that there may be video from stores in the vicinity that would help the police with their inquiries. She was then taken to the Barrie Police Station and interviewed for one hour and 18 minutes. It is this videotaped interview that is the subject matter of the Fresh Evidence Application on this appeal. Although the video was alluded to in discussions at trial and mentioned by the Trial Judge in his verdict, it was not introduced by the Crown nor did the Defence bring an application to seek to have it introduced. At trial the Appellant elected to give evidence and was cross-examined about the events in question.
[5] I pause to note that at the time the Appellant gave this video statement, she was doing so as a victim of a robbery and not as an accused person.
Public Mischief
[6] There are two essential elements of the offence of public mischief that the Crown must prove beyond a reasonable doubt. The first element, the actus reus is conceded by the Appellant. The second element is the mens rea of the offence. The Trial Judge focused in on this issue in his Reasons. As he stated:
For the most part her evidence simply asserts a lack of memory of the essential time period and a lack of memory of the events. It is not the same as memory of a lack of mens rea. Of course, it is not for Ms. Trubashnik to adduce a lack of mens rea. The onus is on the Crown to prove every element of the offence.
The Crown’s Evidence at Trial
[7] The Crown’s evidence at trial consisted of the Appellant’s 9-1-1 call, and evidence of the officer who attended on the scene. He spoke to the Appellant about what she alleged occurred that morning. The Crown chose not to introduce the video of her lengthy interview at the police station made prior to her being charged with the offence in question. As the Trial Judge noted in his Decision:
The Crown did not call that evidence [the videotaped statement] and after being given an opportunity, the Defence did not make any application to have the video brought into evidence. I am not being critical, I am not sure what path to admissibility there would have been for that evidence, but in any case, it is not before me now.
[8] As part of its Fresh Evidence Application, the Appellant tendered the affidavit of Defence Counsel at trial [not Mr. Sandler]. That affidavit focused on the video, discussions with the Crown and the statements to the court. As the affiant provides at para. eight and nine:
There was a frank discussion with the Trial Judge and Crown Counsel regarding the Defence position, the importance of the video interview as the best evidence of the Appellant’s state of mind, the unexpected decision of the Crown not to tender the video interview and the respective positions of the parties concerning the Appellant’s medical condition.
During the adjournment I consulted with local colleagues and the Defence bar and I concluded that I was unable to provide any legal basis for admissibility of the interview as it was a prior consistent statement, and the Crown had not alleged recent fabrication.
[9] Subsequently Defence Counsel at trial recognized the importance of the video and a basis upon which to seek to have it introduced into evidence. As stated by the affiant at para. ten:
[The video] was highly relevant to the Appellant’s emotional and mental state which could be observed and it was highly relevant to whether the Appellant intended to mislead the police since she started to doubt her own report during the interview.
The Appellant’s Position with respect to the Video Statement
[10] The Appellant advances five bases upon which the videotaped statement ought to be received as evidence and could form the basis for an acquittal or in the alternative a new trial.
(i) The Appellant’s Mental State - The video, if viewed by the Trial Judge, would have provided insight into the demeanour of the Appellant and her level of confusion during this interview.
(ii) Relevance - The video provides relevance as to her intent, as to whether or not she intended to mislead the police when consideration is given to her comments in the interview which could be considered as statements resiling from her report of a robbery.
(iii) The video could be considered as countering the evidence which the Trial Judge did hear leading to his conclusion that she was coherent in the 9-1-1 call and the initial interview with the officer on scene.
(iv) The video rebuts the theory that during the interview she maintains the position that there was a robbery until confronted with the potential video evidence from store fronts nearby.
(v) The existing jurisprudence makes allowance for prior consistent statements under certain circumstances.
The Video Transcript
[11] The Appellant filed a transcript of the video interview at the police station. The following statements could be considered as reflecting on the Appellant’s state of mind:
- I am not sure he even took it, I’m now horrified. (Page 31)
- Question: We have cameras downtown. Answer: That’s good can you find my wallet please? That’s all I’m looking for. (Page 96)
- I still have a wallet and I don’t know what happened. (Page 97)
- Could it have just fallen out? Yeah, but could somebody then not bring it to the police? (Page 97)
- I don’t want to hurt anybody. (Page 99)
- Question: When you fell was your purse still on you? Answer: I don’t know, I never thought to check. (Page 100)
- Question: And if this was accidental, we’ll deal with it. Answer: That’s my stupidity. (Page 102)
- Now that you think about it, it could’ve happened so many times and I’m the idiot who never checks my pockets. (Page 103)
- I wouldn’t be surprised if it just fell out of my pocket. Please don’t hurt anybody on my behalf, I’m an idiot. (Page 106)
Analysis
The Fresh Evidence Application
[12] In R. v. Palmer, [1980] 1 S.C.R. 759, the Supreme Court of Canada provided the following bases for the consideration of fresh evidence upon appeal. A summary as set out in the headnote to that case provides as follows:
The following principles have emerged:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or a potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief.
(4) It must be such that if believed it could reasonably, if taken with the other evidence adduced at trial, be expected to have affected the result.
[13] In R. v. M.C., 2014 ONCA 611, Justice Watt speaking for the Court of Appeal, spoke to the issue as to whether or not prior consistent statements can be admitted by exception to the general rule. As Justice Watt stated at para. 3:
Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made. That the statement was made may afford circumstantial evidence of some fact of importance in the proceeding, as for example the declarant’s state of mind.
[14] He continued at para. 64:
Within limits prior consistent statements that are necessary to unfold the “narrative” of a case and make materials events comprehensible may be admitted in evidence. This exception permits proof of how a complainant got before the court, even though how it did is not a material fact that will assist the trier of fact in evaluating adequacy of the Crown’s proof of guilt, or in determining whether a defence, justification or excuse raises a reasonable doubt. The admission of narrative permits the decision maker to understand the “chronological cohesion” of the case.
[15] In R. v. Edgar, 2010 ONCA 2529, Justice Sharpe noted certain exceptions to the traditional rule which generally excludes prior consistent statements. As he noted at para. 35:
First, where an accused prior consistent statement is relevant to his or her state of mind at the time the offence was committed, it may be admitted. Second, where the Crown alleges recent fabrication, the accused may adduce evidence of a prior consistent statement to rebut the allegation. A third exception is made for mixed statements that are partly inculpatory and partly exculpatory
A fourth exception is that the prior statement will be admitted when it forms part of the res gestae, in other words, where the statement itself forms part of the incident that gives rise to the charge. [citations omitted]
[16] In R. v. Liard, 2015 ONCA 414, Justice Laskin made reference to the court’s decision in Edgar and summarized the five main reasons to exclude prior consistent statements as follows at para. 45:
- The statement is hearsay.
- The statement may be fabricated.
- Admitting the statement would impair the goal of trial efficiency.
- The statement will have minimal or no probative value.
- Admitting the statement would amount to impermissible oath helping.
[17] Justice Laskin then went on to acknowledge exceptions to the traditional hearsay rule at para. 46:
But our courts have also carved out exceptions to this exclusionary rule. Before Edgar, the recognized exceptions under which a previous consistent statement has been held to have probative value include statements to demonstrate an accused’s state of mind at the time the offence was committed, or to rebut an allegation of recent fabrication, and statements made as part of the res gestae.
[18] In Edgar, Justice Sharpe dealt with the res gestae issue as follows:
A fourth exception is that the prior statement will be admitted where it forms part of the res gestae, in other words, where the statement itself forms part of the incident that gives rise to the charge. [citations omitted]
Conclusion
[19] In reaching his conclusion it is clear that the Trial Judge did not have the benefit of the Appellant’s video statement, nor did he have any expert medical evidence about her state of mind. As he noted in his Reasons:
In that regard, I am left to consider beyond the Crown’s case is Ms. Trubashnik’s evidence of her own state of mind.
[20] The Crown did not seek to introduce the video statement although it could be considered part of the narrative leading up to the charge against her. At the time of the video statement she had not been accused of any offence. The video could also be considered part of the res gestae because it followed in close proximity to her 9-1-1 call and initial statement to the investigating officer at the scene.
[21] The Defence saw no path at the time to introduce the video statement but Appellate Defence counsel now argues that there are exceptions to the general exclusionary rule. I am satisfied that there were several paths available to seek its inclusion as part of the evidence.
[22] In the circumstances of this case and by applying the Palmer rules, I am satisfied that this is a proper case to relax the due diligence requirement. This is a criminal case. The second Palmer factor is relevance. I am satisfied that the video, if seen by the Trial Judge, is relevant to her state of mind on the day in question. Her state of mind is at the heart of the inquiry. Third, the evidence is credible. It was videotaped by the police on the morning of the alleged incident. Finally, I am satisfied that it could have affected the result. There was a void in the evidence reviewed by the Trial Judge as her state of mind.
[23] I am satisfied that on this Fresh Evidence Application the video statement ought to be admitted for consideration by the Trial Judge. Therefore, I am satisfied that the appeal should be granted and a new trial ordered. The Trial Judge can then weigh this further evidence after hearing submissions by Crown and Defence as to its use under the exceptions to the general exclusionary rule.
[24] Because a new trial has been ordered, the Appellant is at liberty to seek to introduce such medical evidence as may be relevant to the issues in question.
[25] Because I have ordered a new trial it is not necessary to deal with the other grounds of appeal advanced by the Defence.