CITATION : R v. Gary White, 2017 ONSC 7209
COURT FILE NO.: 17-002
DATE: November 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vincelli, for the Crown
Applicant
- and -
GARY WHITE
S. Smordin, for the defence
Respondent
HEARD: November 27, 28, 2017
The Honourable Mr. Justice H.S. Arrell
REASONS FOR JUDGMENT RE: DYING DECLARATION
INTRODUCTION:
[1] Mr. White is charged with the second degree murder of Joseph Colson on March 28, 2016 in the City of Hamilton.
[2] The Crown has brought an application seeking a ruling as to the admissibility of certain utterances made by the deceased just prior to his death on the basis that they meet the test of dying declarations.
[3] The Defence is opposed on the basis that the Crown has not proven all aspects of the test for the admission of dying declarations.
FACTS:
[4] The deceased was found mortally wounded outside his apartment door. He went vital signs absent while being transported to hospital.
[5] Adam Schmidt rendered first aid while awaiting a first responder response to his 911 call. The Crown argues that on the 911 call, one can hear the word "cousin" uttered by the deceased, as was printed by the transcriber. The Defence argues such words cannot be heard on the call. Mr. Schmidt testified at the preliminary inquiry that he clearly heard the deceased utter the words "gun" and "cousin".
[6] It is acknowledged that the accused is a cousin of the deceased and the accused's Facebook page uses the nickname of "gunney".
[7] Brad Holmes was a fireman also rendering first aid to the deceased. He testified that he heard the deceased say it was a family member involved, but he does not recall if it was a cousin or uncle, but it was a male family member.
POSITION OF THE PARTIES:
[8] The Crown argues that it should be able to play the 911 call before the jury and that Mr. Schmidt and Mr. Holmes should be able to testify as to what they heard as an exception to the prohibition against hearsay evidence as this was a dying declaration. The Crown urges me to find that it has met the five part test set out in the case law as set out in McWilliams’ Canadian Criminal Evidence 7:110:10. Further, the Crown argues that these statements are admissible under the analysis set out in R v. Carty 2017 ONCA 770, as a spontaneous statement given under the stress of a startling or dramatic event and is therefore reliable.
[9] The Defence submits that the Crown has failed to meet the five part test for a dying declaration as set out in McWilliams’ as there is no evidence the deceased had a settled and hopeless expectation of death. Further, the utterances are merely two nouns and not a declaration as to the cause of death or circumstances of the offence.
ANALYSIS:
[10] In order for the Crown to be able to tender the dying declaration statement as an exception to the prohibition against hearsay, it must prove the following:
(i) The declarant must have a settled and hopeless expectation of death;
(ii) The declarant’s death must ensue within a reasonable time after the making of the declaration;
(iii) The charge against the accused must be murder, manslaughter or criminal negligence causing death;
(iv) The declaration must be a statement of fact as to the cause of death;
(v) The declaration must be such that it would be admissible if the declarant were alive. McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2015).
[11] Dying declarations are to be handled with care, and only admitted where they fall squarely within the test. Davis J. pointed out in R v. Schwartzenhauer, 1935 CanLII 18 (SCC), [1935] S.C.J. No. 7, 64 C.C.C. 1 (S.C.C.), at 1:
[T]hese dying declarations are to be received with scrupulous, I had almost said with superstitious, care. The declarant is subject to no cross-examination. No oath need be administered. There can be no prosecution for perjury. There is always danger of mistake which can never be corrected.
[12] It is conceded by the Crown that there was no discussion with Mr. Colson about the gravity of his condition or whether he might be dying while being tended to by Mr. Schmidt or Mr. Holmes or anyone for that matter. Nor did Mr. Colson ask about his condition. In fact, he was unconscious for much of the time. It is clear from the scene pictures and autopsy pictures that Mr. Colson had been very severely injured with 21 various stab type wounds. Large amounts of blood were visible on the floors and walls where the death occurred. Mr. Schmidt made it clear in his 911 call that copious amounts of blood were being lost by Mr. Colson and that significant pressure was being applied to a severe neck wound that was bleeding. It was also stated during this call that the deceased was bleeding from multiple stab wounds to a number of different areas of his body. Mr. Colson, when conscious, would have heard these comments. There can be no doubt based on the evidence before me that Mr. Colson would have been aware of the severity of his injuries and that he was on death’s doorstep.
[13] In the case of R v. Mulligan, (1973) 1973 CanLII 2368 (ON SC), 23 C.R.N.S. 1, the deceased woke the witness and said “Billy stabbed me” and very shortly thereafter collapsed on the witness’ bed and never regained consciousness and died sometime later at the hospital. The court stated the following at para. 9:
In my view, the nature of the injuries suffered by the deceased, the number of injuries suffered by the deceased, and the gravity of them would lead any reasonable person , in my view, to the view that they had a settled, hopeless expectation that they were about to die almost immediately.
[14] In Mulligan the deceased had six stab wounds along with the knife imbedded in her back. I conclude that the wounds to Mr. Colson, in the case at bar, were as significant if not worse than in Mulligan and as such it would lead any reasonable person to a settled hopeless expectation of death.
[15] The words alleged to have been uttered in this particular case may have been nouns as argued by the Defence, but when taken with other admissible evidence they arguably are evidence the jury could consider in deciding the identification of the perpetrator. Identification is still a very live issue at this stage of the proceeding and these utterances are probative on that issue. I acknowledge that this evidence is prejudicial to the accused, but that is not the test. This evidence does not go to trial fairness and in that sense is not prejudicial even though detrimental to the accused. The test is whether the degree of prejudice outweighs the probative value of the evidence. Here the probative value of the evidence going to identification, easily outweighs any prejudice to the accused. It is up to the jury to decide if these words were indeed said and if so what weight they put on them after cross examination and submissions of counsel.
[16] The Defence argued the words uttered were not in response to questions and therefore their context is unknown. I disagree. The 911 statement makes it clear that the deceased was asked several times what happened and he responded as described by the witnesses and as heard on the 911 call.
[17] I conclude that the evidence of Mr. Schmidt, Mr. Holmes, and the 911 call, is admissible as a dying declaration being an exception to the rule against hearsay.
[18] I conclude as well that if I am in error as to whether this evidence is properly admitted as a dying declaration, then it is admissible as well as a spontaneous utterance. See R. v. Carty, 2017 ONCA 770.
[19] In Carty, after the deceased was shot, and shortly before his death, he uttered the words “sniper” to a witness. This was a name the accused went by. The court agreed with the finding of the trial judge as follows at para. 7 and 8:
That said, we do not rely on the trial judge’s theory of admissibility to determine this issue. Instead, we uphold the admission of the hearsay statement on a simpler footing. In our view, once the trial judge found that “in the context of the rapidly unfolding and dramatic events… the mind of the deceased must have been still dominated by the shooting,” and that the defence fabrication theory was questionable, she should have admitted the hearsay statement as a “spontaneous statement.”
The theory underlying this exception to the hearsay rule was explained by this court in R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 27 O.A.C. 142 (C.A.), at p. 148, aff’d 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous 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 and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
[20] I have no hesitation in concluding that this was a rapidly unfolding dramatic event in which the mind of the deceased must still have been dominated by the stabbing. There is no evidence before me, nor has it been argued, that the deceased had any motive to falsely accuse Mr. White. I conclude, given the facts of this case, that the possibility of concoction or deception by the deceased can be safely eliminated as there had been no time for him to contrive or misrepresent, and he was still overwhelmed by the immense pressure of the stabbing and his serious injuries.
[21] I conclude the words uttered were a spontaneous statement and therefore admissible for the jury to hear and give them such weight as it sees fit after hearing all of the evidence.
Arrell J.
Released: November 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
James Vincelli
- and –
Gary White
Sandee Smordin
REASONS FOR JUDGMENT
HSA
Released: November 30, 2017