DATE: 20190204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KYLE SPARKS MacKINNON
Susan Adams and Kerry Hughes for the Crown
D. Sid Freeman for Kyle Sparks MacKinnon
Heard: November 14, 2018
Reasons re Admissibility of the Ante Mortem Statements of Quinn Taylor
MacDonnell, J.
A. Introduction
[1] Between November 2018 and January 2019, Kyle Sparks MacKinnon and Jahmal Richardson stood trial in this court on an indictment charging them jointly with two counts of murder, one count of attempted murder and two counts of wounding. The charges stemmed from an incident that occurred in front of the New Ho King restaurant, on the west side of Spadina Avenue south of College Street, at about 3:15 a.m. on January 31, 2016. The allegation of the Crown was that for no apparent reason the defendants opened fire on three unarmed men, Quinn Taylor, David Eminess and Stewart Douglas. Mr. Eminess died at the scene of the shooting. Mr. Taylor fled across Spadina Avenue and collapsed in the entrance to a restaurant. He was rushed to St. Michael’s Hospital but died a few hours later. Mr. Douglas survived. Two persons who were merely passing by the scene on foot were struck and wounded by stray bullets.
[2] Prior to the selection of a jury, a voir dire was conducted to determine whether statements Quinn Taylor made to Police Constable Daniela Quinn shortly after he was shot were admissible. Constable Quinn was one of the first responders assisting Mr. Taylor in the location where he had collapsed after crossing Spadina Avenue. In his statements to Constable Quinn Mr. Taylor provided a description of the person who shot him. The position of the Crown was that the statements were admissible pursuant to the common law exception to the rule against hearsay for dying declarations or, alternatively, pursuant to the principled approach to hearsay.
[3] On November 26, 2018, I ruled that Mr. Taylor’s utterances to Constable Quinn were not admissible as dying declarations but that they were admissible under the common law exception for spontaneous declarations. In the alternative, I held, they were admissible in accordance with the principled approach to hearsay. At the time of the ruling I provided brief oral reasons and stated that more complete written reasons would follow. These are those written reasons.
B. The Relevant Evidence
[4] The application was argued largely on the basis of the testimony given at the preliminary inquiry by Shelley Kuechle and Constable Quinn.
[5] Ms. Kuechle testified that shortly after 3 a.m. on January 31, 2016, as she was walking northbound on the east side of Spadina Avenue, just to the south of the Sizzler Kebab restaurant, she heard a series of gun shots coming from the west. She turned to look across Spadina and saw a southbound tour bus. When the bus passed, she saw a gunman standing in front of the New Ho King restaurant firing a handgun at a man who was attempting to run away. The man who was fleeing fell to the ground. At that point, Ms Kuechle saw another man running across Spadina toward her from the area of the gunshots. That man was Quinn Taylor. As he approached, Mr. Taylor said to her: “Please call 911, they’re shooting at people. Please call 911.”[^1] Mr. Taylor continued across Spadina and collapsed into the entranceway of the Sizzler Kebab.
[6] The CCTV images show that Mr. Taylor collapsed at 3:16:54 a.m. Based on the sequence of events described by Ms. Kuechle, I infer that he had been shot no more than a minute before then. The CCTV images show that Constable Quinn arrived and began to speak to Mr. Taylor at 3:24:27. Accordingly, I conclude that their interaction began approximately 8 to 9 minutes after Mr. Taylor was shot.
[7] Mr. Taylor had suffered a minimum of five gunshot wounds, two of which were to his torso. Constable Quinn testified that she approached Mr. Taylor, put her hand on him and turned him over. She testified:
So as I turn him over he sees me and he starts yelling, screaming, saying ‘Help me, help me, I’ve been shot’. And he held on to my hand and I said ‘Okay, it’s okay, I’m here, I’m gonna help you’. And he kept saying ‘Don’t let me die, don’t let me die’.
[8] Constable Quinn told Mr. Taylor that help was coming. She asked him for his name, and after receiving it she “asked him what happened, who shot you, and he said ‘I don’t know, I was shot several times.’ And I ask him where, and at the time I think he said ‘my leg and my chest… Lots of times’.” As Constable Quinn began to look for Mr. Taylor’s wounds, “he kept yelling and saying ‘Save me, don’t let me die, don’t let me die’, and like he was really holding on to my hand really hard”.
[9] Constable Quinn had Mr. Taylor in a sitting position because he was saying that he couldn’t breathe. She was attempting to put bandages onto the bullet wounds to his chest. She asked him again: “Who shot you?” He replied: “I don’t know”. She repeated: “Who shot you?” He answered: “Just don’t let me die.” She testified: “And I said, ‘I’m here with you, I won’t let you go, I’m here with you’. And he pulled me in and he gave me a description of a male.”
[10] She testified that Mr. Taylor was almost whispering:
So he said to me that the person was like him. And I said, ‘I don’t know what that means, what do you mean like you?’ And he said, ‘The skin colour’. And Quinn was mulatto, so it’s a light-skinned black person… And he said he had shaved head and he was wearing a red shirt and a gold chain. He kept saying the chain was very thick, was a gold chain. I think at that time right away I put the description of that male, as I’m trying to put the description in between Quinn screaming and yelling of me helping him and not to let him die… [sic]”
[11] Constable Quinn testified further:
[The] whole time I’m with him and he’s asking me not to leave him, not to let him go, and I was with him, we called for an ambulance, and I had him on – because he kept saying he couldn’t breathe so I had him on my – like I was on my knees and had him leaning against me, holding his hand, and we asked for ambulance, and I saw the fire department came in first, they were the first ones to come and help us, and they had an oxygen mask, so we placed that on Quinn’s face and waited for the ambulance to come.
[12] Notwithstanding the efforts of the emergency physicians at St. Michael’s Hospital, Mr. Taylor passed away at 8:42 a.m., about 5½ hours after he was shot.
C. Dying Declarations
[13] In Sopinka, Lederman & Bryant, The Law of Evidence in Canada (5th), (2018) the authors state, at §6.381:
An early common law exception to the hearsay rule was the admissibility at trial against an accused charged with murder or manslaughter of statements by a deceased pertaining to the cause of death. For the statement to be admissible, the deceased had to have had a settled or hopeless expectation of death when he or she made the statement, and he or she would have been a competent witness if available to testify at trial.
[14] Mr. Sparks MacKinnon and Mr. Richardson were charged with the murder of Quinn Taylor. The statements Taylor made to Constable Quinn were statements pertaining to the cause of death.[^2] Mr. Taylor would have been a competent witness if he were available to testify at trial. The only issue, therefore, is whether he had a settled or hopeless expectation of death. To satisfy this criterion, it must be shown that at the time he made the statements Mr. Taylor believed that he was mortally wounded and that he was going to die: “The feeling to be possessed is not merely fear that the declarant may succumb to death but that in fact the declarant has a solemn conviction that he or she will soon die and that there is no hope whatsoever of recovery”: Sopinka, Lederman & Bryant, supra, at §6.383.
[15] While I am satisfied that the evidence establishes that at the time he spoke to Constable Quinn Mr. Taylor had a reasonable fear that he was going to die from his wounds, I am not satisfied that he had a solemn conviction that there was no hope whatsoever of recovery. I interpret his multiple pleas to Constable Quinn to not let him die as a reflection of a belief that there was still hope that he could survive. Thus, I am not satisfied that the statements he made to Constable Quinn were made under a settled expectation of death. Accordingly, the dying declaration exception to the rule against hearsay is inapplicable.
D. Spontaneous Declarations
[16] I am satisfied, however, that what Mr. Taylor said to Constable Quinn is admissible under the common law exception for spontaneous declarations. Such statements, which are sometimes said to form part of the res gestae, may be admitted for their truth in certain circumstances. In R. v. Moore, 2014 ONSC 650, at paragraphs 16 to 18, I described those circumstances in this way:
One of the traditional exceptions [to the rule against hearsay] is the exception for spontaneous declarations, which applies “if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded.”[^3]
Professor Wigmore explained the principle underlying this exception as follows:
This general principle is based on the experience that, under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness) and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.[^4]
The category of events that can be sufficiently shocking to ‘still the reflective faculties and remove their control’ is not closed. The admission of an utterance pursuant to this exception is based not on the nature of the shocking event that preceded the utterance but rather on its effect.
[17] The rationale for the admission of spontaneous declarations will almost always limit them to utterances made in close proximity to the event to which they refer. The greater the time between the event and the utterance, the less likely a finding that the utterance was made “under the immediate and uncontrolled domination of the [declarant’s] senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection”. That is not to say, however, that exact contemporaneity must be established. In that respect, the decision of the House of Lords in R. v. Andrews, [1987] A.C. 281 is instructive.
[18] In Andrews, the victim had been attacked and stabbed within his apartment by two intruders. Within minutes of the attack, and while bleeding profusely, he attempted to go to another apartment for assistance. A neighbor found him in a landing and called for emergency assistance. That call was made “within a very few minutes” of the attack. The first two police officers on scene arrived “a couple of minutes or so” after the call. One of those officers, P.C. Worboys, administered first aid and as he did so he asked the victim how he had received his injuries. The victim replied that he had been attacked by two men, whose names he provided. Those two men were one O’Neil and the appellant Andrews, Two months later, the victim died as a result of his injuries, and O’Neil and Andrews were jointly charged with murder.
[19] Prior to trial, O’Neil pleaded guilty to manslaughter. At Andrews’s trial, the prosecution sought to have the victim’s statement to P.C. Worboys admitted for its truth, pursuant to the doctrine of res gestae. The trial judge ruled that the statement was admissible. Andrews was convicted of manslaughter. The Court of Appeal (Criminal Division) affirmed the trial judge’s ruling. The House of Lords affirmed the judgment of the Court of Appeal.
[20] In the course of his reasons for the House of Lords, Lord Ackner set forth five guidelines to assist trial judges in the determination of whether the exception to the rule against hearsay for spontaneous declarations applies. The first three of those guidelines were as follows:
The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
To answer that question, the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor under this heading.
[emphasis added]
[21] Lord Ackner’s fourth guideline concerned the possibility that the declarant’s identification was motivated by malice against the person identified. The fifth directed trial judges to consider whether there were “special features” beyond the ordinary fallibility of human recollection – such as drunkenness or defective eyesight – that might give rise to the possibility of error.
[22] On the basis of the record on this application, I am satisfied that the description of the shooter that Mr. Taylor offered was provided “in conditions of approximate but not exact contemporaneity” with the material events. It was provided at a time when Mr. Taylor’s capacity for reflection had been overwhelmed by the fact that that a stranger had just shot him five times. I am satisfied that his mind was dominated by the shock of the shooting and by his fear that he was dying. The possibility that he concocted his description of the shooter in those circumstances can be readily excluded as fanciful.
[23] With respect to accuracy, the fact that the description was provided within minutes of the shooting is significant. The only events that intervened between the shooting and the statements to Constable Quinn were Mr. Taylor’s flight across Spadina Avenue and his collapse in the entranceway to the Sizzler Kebab restaurant. The possibility that in that brief interval he had misremembered the appearance of the shooter is remote. As with any description provided by any witness, there will always be the possibility of error but there is nothing in the record to suggest the presence of ‘special features’ of the kind referred to in Andrews that might undermine the reliability of the description. I acknowledge that the description is relied upon by the Crown as evidence identifying Mr. Sparks MacKinnon and that as such caution is called for in assessing its reliability. The statements do not carry with them, however, the added dangers associated with situations where a witness expresses an opinion that a defendant is the person involved in the material events.
[24] The fact that Mr. Taylor was asked questions by Constable Quinn prior to providing the description is a factor to be considered in relation to the spontaneity of his utterances. I am satisfied, however, that the questions did not restore Mr. Taylor’s capacity for reflection, nor did they relieve him from the domination of the shock of being shot. I would note, as well, that while Mr. Taylor was asked who had shot him, he was not asked for a description of the shooter. To that extent, the description was volunteered.
[25] In all the circumstances, I am satisfied that the description that Mr. Taylor provided to Constable Quinn is admissible pursuant to the common law exception for spontaneous declarations. I am also satisfied that this is not one of those rare cases in which an otherwise applicable common law exception should not be permitted to justify the admission of a hearsay utterance: R. v. Khelawon, [2006] S.C.R. 787, at paragraph 60.
E. The Principled Approach
[26] If I am wrong with respect to the admissibility of Mr. Taylor’s description of the shooter pursuant to the common law exception for spontaneous declarations, I am in any event satisfied that it is admissible in accordance with the principled approach to hearsay. Obviously, if Mr. Taylor’s description of the shooter is to be received, it will be necessary to receive it in hearsay form because Mr. Taylor has died. The issue, therefore, is whether it is sufficiently reliable to be considered by the jury. That is, the question is whether it meets the test of threshold reliability.
[27] As explained by the Supreme Court of Canada in cases such as R. v. Khelawon, supra, and R. v. Bradshaw, 2017 SCC 35, hearsay may be sufficiently reliable if there are adequate substitutes for testing its truth and accuracy. This kind of reliability has been described as procedural reliability. Alternatively, hearsay may be sufficiently reliable if there are circumstantial or evidentiary guarantees that it is inherently trustworthy. That kind of reliability has been referred to as substantive reliability. The Crown does not suggest that the record in this case supports a finding of procedural reliability. Rather, the Crown submits that the description of the shooter provided by Mr. Taylor meets the test of substantive reliability.
[28] The first step in the assessment of that submission is to identify the specific hearsay dangers presented by the admission of the statements. The traditional dangers associated with hearsay are the absence of an oath or solemn affirmation, the inability of the trier of fact to assess the declarant’s demeanor at the time the statements were made, and the absence of an opportunity to cross-examine the declarant. In the circumstances in which Mr. Taylor found himself – on death’s doorstep – it is not reasonable to think that the administration of an oath or affirmation would have added anything to the likelihood that he would tell the truth about the person who shot him. Further, Constable Quinn was able to provide significant detail about Mr. Taylor’s demeanor at the time of their interaction. The only real hearsay danger in this case arises from the inability of the defence to cross-examine Mr. Taylor to test the accuracy of the description he provided.
[29] The standard for substantive reliability is high: R. v. T. (M.G.), 2017 ONCA 736, at paragraph 118. In my opinion, however, notwithstanding the inability to cross-examine Mr. Taylor, the circumstances in which the description was offered provide sufficient guarantees of trustworthiness to warrant leaving it for the jury to determine whether to make use of it. Most of the relevant circumstances underlie one or the other of the common law exceptions discussed above and have already been mentioned. Those circumstances include:
(i) the description was provided 8 to 9 minutes after Mr. Taylor was shot;
(ii) in the interval between the shooting and the statement, there were no significant intervening events;
(iii) at the time he spoke to Constable Quinn, Mr. Taylor’s mind was dominated by the shock of having been suddenly shot five times by a stranger;
(iv) although Mr. Taylor did not have a settled expectation of death, he genuinely and for good reason was extremely fearful that his life was in immediate peril;
(v) the person whom Mr. Taylor purported to describe was a stranger and thus he had no motive to fabricate any part of the description;
(vi) there is nothing in the record to suggest the presence of ‘special features’ of the kind referred to in Andrews that might undermine the reliability of Mr. Taylor’s description;
(vii) the description was a statement of physical features and clothing, not an opinion that either of the defendants was the shooter;
(viii) the description was, relatively speaking, detailed;
(ix) there was nothing in the questions asked by Constable Quinn that suggested any part of the description provided by Mr. Taylor;
(x) the description itself was not provided in response to a direct question asked by Constable Quinn.
[30] In support of its position that the description of the shooter was admissible pursuant to the principled approach, Crown counsel relied on the similarities between Mr. Taylor’s description and the descriptions provided by a number of other witnesses. Prior to the judgment of the Supreme Court of Canada in R. v. Bradshaw, supra, the Crown’s reliance on those similarities might have been thought to be well founded. In Bradshaw, however, the Supreme Court limited the kinds of evidence that may be considered to be confirmatory at the threshold reliability stage. I do not find it necessary to consider whether, post-Bradshaw, the similarities between the descriptions provided by other witnesses and the description provided by Mr. Taylor tend to confirm the reliability of his description. I am satisfied that in any event the circumstances described above are sufficient to establish threshold reliability and to justify admission pursuant to the principled approach.
[31] I recognize that whether characterized as an exception under the common law or pursuant to the principled approach, hearsay must be excluded if its probative value is outweighed by its prejudicial impact. In my opinion, the probative value of the description of his shooter provided by Mr. Taylor is high and the prospect for prejudice is minimal.
G. Disposition
[32] For the foregoing reasons, I was satisfied that the statements that Mr. Taylor made to Constable Quinn were admissible.
MacDonnell, J.
Released: February 4, 2019
[^1]: The admissibility of this utterance as part of the res gestae was conceded. [^2]: Statements ‘pertaining to the cause of death’ include statements that tend to identify the perpetrator: See Watt’s Manual of Criminal Evidence, (2015), at §27.02. [^3]: McWilliam’s Canadian Criminal Evidence, 4th ed., section 7:120:20 [^4]: Wigmore on Evidence (Chadbourn Rev. 1974), vol. 6, section 1747