Court File and Parties
COURT FILE NO.: CJ 9542
DATE: 2019-08-30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent
AND:
DAVID ANTONISON, Applicant (Accused)
BEFORE: The Honourable Mr. Justice P.J. Flynn
COUNSEL: Christopher Tarach, Counsel for the Applicant (Accused)
Aaron McMaster, Counsel for the Respondent
HEARD: August 20, 2019
PRE-TRIAL RULING nO. 1
(prior consistent statements)
[1] The accused applies for a ruling on the admissibility of his prior consistent statements made at the time of arrest, during transport to the police station and during the booking procedure and seeks to tender them as evidence of his state of mind at the time of the charged offences. He says that they are admissible under the prior consistent statements exception to the hearsay rule.
[2] He is charged with:
(i) attempted murder while using a firearm; and two counts of discharging a firearm with intent to wound.
[3] The statements at issue can be organized into two groups:
- Utterances at the time of arrest made to Constables Scott, Deschatelets and Driese
- and -
- Utterances following arrest and after being read his rights to counsel and cautioned, made to Constable Deschatelets.
[4] Joyce and Bruce Coghill were interviewed and gave the following information:
(a) At approximately 8:15 a.m. on November 2, 2017, Mr. Coghill heard a dog barking. He looked out a window and saw the accused with a dog on Coghill’s lawn.
(b) The accused has a history with Coghill of allowing his dog to defecate on the Coghill lawn.
(c) Mr. Coghill knocked on the window and gestured to the accused, “not on my lawn”.
(d) The accused repeatedly called Mr. Coghill a “fucking asshole” and said he was going to kill Mr. Coghill. Then he and the dog walked off.
(e) 5 – 10 minutes later Mr. Coghill saw the accused walking towards the house with a silver handgun in his right hand and a rifle under his left arm.
(f) The accused then fired one round into the Coghill’s front door and two more through the window from which Mr. Coghill had yelled at him.
(g) The accused then left in the direction of his house.
(h) Joyce Coghill was in the bedroom at the time of the shooting. She saw the accused approach the house with a gun and another stick-like object.
(i) Neither of the Coghills was struck by the gunfire.
[5] Waterloo Regional Police Service Emergency Response Unit officers arrived shortly after the shooting was reported and contained the accused’s home.
[6] Sergeant Ebel, crisis negotiator, spoke by telephone to the accused and discussed a surrender plan.
[7] The accused came out of his house and was arrested and cuffed by Constable Scott.
[8] During the arrest, Constable Scott heard three utterances by the accused:
(i) I didn’t hurt anyone;
(ii) I’m really sorry;
(iii) I kind of lost it there.
[9] Emergency Response Unit officer Driese was present during the arrest and heard the accused say he “had lost it” and utter that he hoped no one was hurt.
[10] Constable Scott turned over custody of the accused to Constable Deschatelets, who placed the accused in his cruiser for transport. While he was there, Constable Kroetsch informed the accused of the reason for his arrest, read him his rights and cautioned him.
[11] The accused asked to speak to his lawyer, Tim Goad, and told Kroetsch that he chose not to say anything.
[12] The accused told Kroetsch that he had mental health issues but was not in immediate crises.
[13] Constable Deschatelets read the secondary caution, following which the accused made a number of utterances:
(a) the accused asked how much “shit” he was in;
(b) I did not try to kill anybody;
(c) I lost my mind;
(d) I just flipped out;
(e) I did not want to hurt anyone;
(f) I am not a killer, I just flipped out;
During the booking procedure the accused made other utterances:
(g) I just fired off a gun, that’s it;
(h) I didn’t want to hurt anyone, I’m not a violent man.
Accused’s Position
[14] The accused argues that all said utterances are spontaneous upon arrest and probative of his state of mind at the time of the offence and therefore ought to be admissible for the factors set out in R. v. Edgar, 2010 ONCA 529 at para. 72 where Sharpe J.A. writes for the Court:
[72] I conclude, therefore, that it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself to cross-examination … the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
[15] The Crown agrees that the test is that cited above from Edgar, but emphasises that spontaneity means different things in different circumstances.
[16] And for clarity the Crown refers to K. v. Laird, 2015 ONCA 414, [2015] O.J. 3000 in Ontario’s Court of Appeal where Laskin J.A. writes for the court (at paragraph 62):
The requirement that the accused’s statement be spontaneous is the critical requirement for admissibility under the Edgar exception.
… But spontaneity lies along a spectrum.
[17] Here the Crown argues that the tendered statements lack spontaneity. Spontaneity means the accused’s reaction to the 1st confrontation (in this case that he was being or had been charged with attempted murder).
[18] The Crown argues that the accused’s reaction must be unscripted and genuine. For this he cites R. v. Kailayapillai 2013 ONCA 248, 115 O.R. (3d) 363, at paragraphs 59 and following.
[19] The Crown in argument raised the very apt analogy allowing in the accused’s genuine reaction to “being slapped in the face with the accusation”, whether from the police or others.
[20] In the factual matrix of our case, we must remember that before the accused was confronted by the police he had already spoken by phone to two of his friends, acknowledging that he had messed up and was in trouble. He also learned from Sergeant Ebel that he had not hurt anyone.
[21] Of course, those calls with friends and brief dialogue with Sergeant Abel cannot in anyway be construed as confrontations of the accused.
[22] And those calls and that discussion deprive him of any spontaneity in the latter utterances which the accused seeks to have admitted.
[23] I agree with the Crown that the utterances do not genuinely reflect his state of mind at the time he shot that gun into the Coghill house.
[24] Rather, they are expressions of his hope of where this case might go for him.
[25] There is one interesting argument from the accused which I would like to put to rest.
[26] The accused, acknowledging that what is being measured is his verbal reaction to the accusatory confrontation as to the charge he is facing, argued that the very act of the police and their presence in containing the scene around his house was sufficient confrontation to allow for the Edgar exception. I completely reject this position. It must always be that the accused is verbally confronted with the allegations.
[27] The burden is on the accused to establish the admissibility of his prior consistent statements under Edgar.
[28] And here the accused has failed to meet that burden.
[29] The Application is dismissed.
P.J. Flynn J.
Date: August