COURT FILE NO.: CR-17-912

DATE: 20190123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN OSBORNE

Defendant

Lisa Wannamaker for the Crown

Magdalena Wyszomierska and Sharon Jeethan for the Defendant

HEARD: January 23, 2019

ruling on scope of defence cross-examination on out of court utterances of the defendant

Boswell J.

The Issue

[1] According to Canadian evidence law, things that a person says out of court are generally not admissible in court to prove the truth of what was said.[^1]

[2] The out of court exculpatory utterances of an accused person are generally subject to the foregoing rule. Such statements are hearsay, self-serving and lacking in probative value. Moreover, the law is clear that an accused person “should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.”[^2]

[3] But what if defence counsel wishes to refer to the defendant’s out of court exculpatory utterances, not for the truth of their contents, but only as a means to test the credibility and reliability of a Crown witness? Is such a use permissible as an exception to the general exclusionary rule?

The Context

[4] Mr. Osborne is on trial, charged with the first degree murder of a man named Terence Pringle. Mr. Pringle was bludgeoned to death in his basement apartment in downtown Peterborough on November 25, 2016. He suffered head injuries consistent with being struck by a hammer. Mr. Osborne is alleged to have wielded the hammer.

[5] Living upstairs from Mr. Pringle, at the time of his death, was a young woman named Samantha Hall. Ms. Hall was an admitted prostitute and cocaine dealer. She did not know Mr. Pringle on a personal level, but was advised by her landlord that Mr. Pringle was spreading the word that Ms. Hall was dealing cocaine from her apartment on behalf of a local motorcycle gang. Ms. Pringle testified that she was not dealing from her apartment, nor for a motorcycle gang. She was upset by the false rumours being spread by Mr. Pringle and intent on doing something about it.

[6] The Crown posits that Ms. Hall engaged the services of three males, including Mr. Osborne, to pay a visit to Mr. Pringle and to take such steps as may be necessary to “shut him up”. Ms. Hall testified that the Crown is correct about the engagement of the three males, but that their instructions were limited to roughing up the deceased.

[7] At any rate, the three males set off for Mr. Pringle’s apartment from the residence of one Mr. Bolton, a close friend of Ms. Hall. Mr. Bolton’s residence was not far from Mr. Pringle’s. It was apparently considered to be something of a party house and there were a number of persons present there when the three males set off and subsequently returned. One of those present was Ms. Hannah Moore, a good friend of Mr. Osborne’s.

[8] Ms. Moore testified for the Crown. I would describe her recollection of events on the evening in question as somewhat hazy. The Crown attempted to refresh her memory through a review of parts of her police statement and preliminary hearing evidence at a number of points during her testimony. One of those points was in relation to the question of whether Ms. Moore had heard Mr. Osborne say anything about a person outside of Mr. Bolton’s residence prior to his leaving for Mr. Pringle’s apartment.

[9] Ms. Moore initially could not recall whether she had heard anything. After refreshing her memory by reviewing her police statement, she said that she heard Mr. Osborne say that there was a person who was “really getting on his nerves and he just wanted to kill him”.

[10] As I understand the case, it is not contested that Mr. Osborne attended with two other males at Mr. Pringle’s apartment and was at least present at the time of the attack that resulted in Mr. Pringle’s death. What is really at issue in this case is Mr. Osborne’s state of mind prior to and at the time Mr. Pringle was killed.

[11] Defence counsel is, for obvious reasons, anxious to cross-examine Ms. Moore on her testimony regarding the “I just want to kill him” utterance. Prior to commencing her cross-examination, she signalled to the court that she wished to put to Ms. Moore certain utterances purportedly made by Mr. Osborne both before and after the offence for the purpose of suggesting to Ms. Moore that she was confused about what was said and/or when it was said. The utterances tend to be exculpatory in nature.

[12] Crown counsel objected and the court entered into a voir dire regarding the permitted use, if any, of Mr. Osborne’s out of court exculpatory statements.

The Parties’ Positions

[13] Although not expressed in precisely these terms, defence counsel’s position is based on Mr. Osborne’s constitutional entitlement to make full answer and defence.

[14] Ms. Moore made reference, in her police statement, to a number of utterances purportedly made by Mr. Osborne on the night in question and thereafter. Defence counsel wishes to use some of those utterances to challenge Ms. Moore on whether she might be mistaken about what he said and/or when he said it.

[15] Counsel asserts that she is not seeking to adduce any out of court utterances for the truth of their contents. Rather the witness is to be challenged with the purported utterances solely for the purpose of impeaching her credibility and/or reliability.

[16] Initially, defence counsel identified the following purported utterances as ones she wished to put to Ms. Moore in cross-examination, all being references from Ms. Moore’s police statement:

(a) The post-offence statement, “Oh my God, I didn’t know I actually killed that guy”;

(b) The observation, “yeah, they just wanted him to beat him up”;

(c) The pre-offence statement, “I’m going to Stewart Street”.[^3]

[17] As the argument progressed, however, counsel resiled from the post-offence statement and acknowledged it would require an application under Edgar to obtain a ruling as to admissibility.

[18] With the change in position of defence counsel, Crown counsel objected only to the reference identified at paragraph (b) above. In addition, the Crown argued more generally that there should be a ruling that any references to post-offence, out of court, exculpatory utterances are inadmissible. She contends that the use of such statements to challenge the credibility of Crown witnesses is not a recognized exception to the general rule of exclusion.

Discussion

[19] For the most part, this application resolved itself over the course of argument, leaving only two issues for determination. First, the more general question of whether out of court, exculpatory utterances of an accused person may be put to non-accused witnesses during cross-examination for the purpose of challenging the witness’ credibility and reliability. Second, whether the specific utterances referenced by defence counsel may be put to Ms. Moore in cross-examination.

[20] With respect to the more general question, I am of the view that, generally, out of court exculpatory utterances of an accused person may not be put into evidence through a non-accused witness as part of a challenge to that witness’ credibility. There may of course be exceptions to this general rule depending on context.

[21] Permitting the introduction of the out of court utterances of an accused person for the broad purpose of challenging the credibility and/or reliability of a non-accused witness would open a huge gateway for the admission of what is otherwise inadmissible evidence.

[22] In my view, the suggestion that the utterances are not being tendered for the truth of their contents does not adequately address all of the problematic features of the evidence.

[23] Eliciting evidence – whether in cross-examination or otherwise – that an accused person made exculpatory statements out of court offends more than just the hearsay rule. In other words, even if the statements are not tendered for the truth of their contents, and hence are not hearsay statements, they offend at least two other rules of evidence.

[24] First, they offend the rule against the introduction of prior consistent statements, whether offered through the accused or another person. Prior consistent statements are not excluded only because of their hearsay nature, but also because they tend to lack probative value.

[25] Second, the introduction of the defendant’s out of court exculpatory statements in cross-examination will have the practical effect of advancing a defence in a manner that avoids cross-examination.

[26] There are a number of recognized exceptions to the introduction of prior consistent statements, whether they be in the form of an accused person’s out of court exculpatory statements or otherwise. Some of these were canvassed by Sharpe J.A. in the Edgar decision. There does not appear to be authority, however, to support the proposition that such statements may be freely used to impeach the credibility of non-accused witnesses. In my view, such a wide gateway to admission is not justified.

[27] With respect to the specific utterances sought to be referred by defence counsel to Ms. Moore in cross-examination, I support one and reject the other.

[28] Obviously defence counsel should be at liberty to cross-examine Ms. Moore on the frailties of her recollection and the circumstances in which she made her observations. She may be challenged, for instance, on her physical and mental state at the time of her observations, her level of sobriety, the possibility that she misheard what was said, the chance that she has been influenced by things others have said, or that she is simply confused about what she heard or did not hear.

[29] I have no difficulty, in the result, with defence counsel putting to the witness the suggestion that Mr. Osborne did not say he wanted to kill someone, that he said something completely different on this occasion (for instance, “I’m going to Stewart Street), that he said nothing at all, or that she simply cannot recall what, if anything was said.

[30] I take a different view of Ms. Moore’s statement to the police to the effect that “they just wanted him to beat him up”.

[31] There are at least two significant problems with this statement.

[32] First, it does not appear to refer to an utterance of Mr. Osborne at all. It would appear to be a compendious statement of things Ms. Moore has heard from other people. There has been no evidence tendered to suggest that Ms. Moore was privy to the conversations between Ms. Hall and any of the other participants to the offence as to what was expected of the three males who intruded into Mr. Pringle’s home. In my view, raising this statement with her will inevitably invite a hearsay response.

[33] Second, if in the off chance the statement was based on something Mr. Osborne told Ms. Moore, then Mr. Osborne’s out of court exculpatory utterance is not admissible, for the reasons I have just expressed.

Boswell J.

Released: January 23, 2019

[^1]: R. v. Duncan (1981), 73 Cr. App. R. 359 at page 363.

[^2]: R. v. Simpson, [1988] 1 S.C.R. 3, at para. 24. See also R. v. Rojas, 2008 SCC 56 and R. v. Edgar, 2010 ONCA 529 (“Edgar”).

[^3]: Mr. Pringle resided on Stewart Street.