COURT FILE NO.: CRIMJ(P) 1864/19
DATE: 2021 04 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty and C. Nadler, for the Crown
- and -
D.S.
Michael A. Moon, for the Accused
HEARD: January 28, 2021 (by videoconference)
APPLICATION TO ADMIT HEARSAY UTTERANCES OF M.T. (Blended Voir Dire)
Fowler Byrne J.
[1] The Crown applies for the admission into evidence of an utterance made by the alleged victim M.T. to a witness C.H. on September 23, 2017.
[2] On January 29, 2021, I released my ruling wherein I found that the statement made by M.T. shortly after being injured was admissible as an excited utterance, with reasons to follow. These are those reasons.
I. Background
[3] D.S. faces charges of attempted murder and aggravated assault as a result of stabbing injuries sustained by M.T. on September 23, 2017.
[4] It is agreed that on September 23, 2017, M.T. was stabbed in the left ear and neck area. When running away from his assailant, M.T. collapsed on the porch of C.H. at 20 Fair Oaks Place in Brampton. There were two witnesses on the porch at that time – C.H. and her friend J.R. C.H. called 911 at approximately 12:06 p.m.
[5] It is also agreed that at 1:15 p.m., Constable Copeland of the Peel Regional Police Force took a statement from C.H.. In his notes, it is written “the victim said it was M.J.’s boyfriend.” There is nothing in the officer’s notes that indicate what time M.T. made this statement to C.H. The Crown maintains that at the time of the alleged offences, M.J. was D.S.’s girlfriend.
[6] C.H. gave her evidence in a blended voir dire. Prior to her cross-examination, the Crown did advise the defence that it was their intention to seek the admission of the statement made by M.T. to C.H. as an “excited utterance”, a traditional exception to the hearsay rule.
[7] C.H.’s evidence is that around noon on September 23, 2017, she and her friend J.R. were on her porch for a visit when they saw two men running down the ramp from the park area, towards them, one in front of the other. At first, the men were a bit apart while running. When the man in front stopped and rested against a car that was in the driveway across the street from her residence, she saw that the man behind him had caught up and was getting ready to lunge at the first man with a large 12-inch knife in his hand. When she saw the man with the knife lunge at the other man, she yelled “No!” After she yelled, the man with the knife ran back up towards the park, and the other man kept running the other way, past about six townhomes, and yelled at her to call 911. He then came up to her porch and she realized he was bleeding a lot, so she called 911. The 911 dispatcher told her to get a towel and apply pressure against the wound in the neck area, which she did. She asked him, “who did this to you?” and he responded, “M.J.’s boyfriend”.
[8] C.H. had never seen the assailant or the victim before. She described the victim, who we now know is M.T., as anxious and frantic, with blood all over him. She denied he was calm. After the police and ambulance arrived, she did talk to a few people who were milling about, curious about the event. She gave a written statement to the police at the scene, which was within half an hour of calling 911. It is an admitted fact that at approximately 1:15 p.m. C.H. told Constable Copeland that M.T. told her that it was M.J.’s boyfriend who hurt him.
[9] Since the event, she has seen M.T. a few times when he came into the barber shop where she worked. While she now knows his name, she denies they are now friends. C.H. actually knew M.J. at the time because she was a friend of her daughter’s.
[10] J.R.’s evidence was that she was visiting with C.H. on her porch when they saw two men running towards them from the basketball court area at the end of McHardy Court, one chasing the other. At first, she thought they were playing around. Then she realized that something was wrong. The man being chased was bleeding and he yelled at them to call 911. He then ran onto C.H.’s porch. There was a lot of blood coming from his ear area and there was blood all over his clothes. She did not see where the man chasing him went.
[11] C.H. called 911 and got a white towel to hold against the wound on M.T.’s head. She and C.H. tried to talk to him to stop him from passing out, because she knew it was a serious injury and he appeared very fatigued. She said he could barely talk. Both she and C.H. stayed with M.T. until the ambulance came. She went home after the police took her statement. J.R. indicated that she knew neither the man who was being chased nor the man who was chasing him. Since the incident, she has since learned that the man who was being chased and that came to C.H.’s porch was named “M.”
[12] Constable Simmons also testified. He was the first on the scene to respond to the 911 call, prior to the ambulance. He arrived at 12:10 p.m., only 4 minutes after the 911 call was made. He found M.T. in distress, pacing. He saw that a towel was on M.T.’s wound. He stated that there was a lot of foot traffic in the area, but he focused his attention on the victim until the ambulance arrived. Despite the foot traffic, the only folks that were talking to M.T. were C.H., J.R. and another individual who was there named T. He stayed with M.T. the entire time.
[13] Constable Simmons observed that M.T. was not cooperative, and was very careful about what he said. No further questions were asked because M.T. was ready to be transported to the hospital. According to his notes, the officer did obtain a description of the assailant, but his notes do not indicate where he got this information – whether from C.H., J.R. or M.T.. When the ambulance arrived, he escorted M.T. to the ambulance. His notes also indicate that the victim is not known to the complainant, which he believes refers to the individual who called 911.
[14] Constable Masse also responded to the call and spoke to M.T. during the ambulance ride, at approximately 12:58 p.m. Constable Masse found M.T. to be very careful about what he was saying.
[15] M.T. himself also gave evidence at the trial. During his examination in chief, he that C.H. asked him who stabbed him. He said he could tell her, because he knew who stabbed him, but didn’t know his name at the time. M.T. said that he knew his assailant by the name Brown Man. Later, in cross-examination, when asked specifically if he said anything to C.H., he stated that it was possible, but he did not recall.
II. Issues
[16] The Crown seeks to admit the Statement “M.J.’s boyfriend” on two bases:
a) Under the excited utterance traditional exception to the hearsay rule; or
b) Under the present sense impression traditional exception to the hearsay rule.
III. Analysis
A. Excited Utterance Exception
i. The Law
[17] The statement made by M.T. to C.H. is hearsay and, as a general rule, is therefore inadmissible at trial: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15. Nonetheless, the Crown seeks to have this statement admitted as evidence under the “excited utterance” traditional exception to the hearsay rule, also known as the “spontaneous utterance” or res gestae exception.
[18] Pursuant to R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 77-88, and R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (C.A.), at paras. 88-89, leave to appeal refused, [2004] S.C.C.A. No. 225 (S.C.C.), the excited utterance exception will permit evidence that is otherwise inadmissible hearsay to be admitted if the Crown can show the following, on the balance of probabilities:
a) there is a startling occasion;
b) there is an utterance or statement made before there is time to fabricate;
c) the utterance must relate to the startling occasion; and
d) the declarant must personally observe the matter of which they speak.
[19] The statement need not be strictly contemporaneous to the occurrence. It may be only reasonably contemporaneous with the occurrence, so long as the stress or pressure created by it is ongoing and the statement is made before there is time to contrive or misrepresent: R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (C.A.), at p. 23; Nicholas, at para. 80; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 15, leave to appeal refused, 2017 CanLII 49991 (S.C.C.).
[20] An excited utterance can be made in response to a question. In Nurse, the res gestae at issue was actually a gesture. When the victim was lying by the side of the road, after being viciously stabbed and then trying to escape his assailant, the police constable asked him who did this to him. In response, the victim pointed at his abdominal wound and then at the accused, Mr. Nurse, who was standing beside the officer.
[21] The court in Nurse relied on the decision in R. v. Andrews, [1987] A.C. 281 (H.L.), at p. 301, which indicated that the fact that an utterance was made in answer to a question is but one factor to consider under this heading: Nurse, at para. 85.
[22] Since adopting the principled approach to hearsay, the Supreme Court of Canada has reiterated the continued relevance of the traditional exceptions to the hearsay rule and has set out the governing analytical framework the court should follow. Following R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, the Court has summarized it as follows in Mapara, at para. 15:
(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. [Citations omitted.]
[23] As summarized in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 60, if the evidence falls within one of the traditional common law exceptions, this finding is conclusive and the evidence is ruled admissible, unless in a rare case, the exception itself is challenged as described.
[24] The “rare cases” will no doubt be unusual, and the party challenging the admissibility of evidence failing within a traditional exception will bear the burden of showing that the evidence should be nonetheless inadmissible as it does not meet the principled approach’s requirement of necessity and reliability, and that the principled approach should be used in the analysis of the evidence: Starr, at para. 214; Nurse, at para. 64.
[25] A traditional exception to the hearsay rule by its very definition has shown itself to be both necessary and reliable. Nonetheless, given D.S.’s submission that this is a “rare case” when an excited utterance should not be admitted into evidence, a further review of the concepts of necessity and reliability is warranted.
[26] In determining whether the hearsay evidence is necessary, the court must determine if it is “reasonably necessary”: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 546. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929, Lamer J. adopts Wigmore on Evidence, which states that necessity means that the individual who made the initial statement is now unavailable as a witness. Therefore, being “reasonably necessary” means that the individual is unavailable, but only by virtue of being unable to give courtroom testimony.
[27] The necessity criterion should be given a flexible definition, capable of encompassing diverse situations. It can be a situation of the person being unavailable to give evidence for the purpose of testing, or that the court cannot expect to get evidence of the same value from the witness or other sources: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 796-797.
[28] When determining the reliability of evidence, it is only threshold reliability that need be established. The weakness or strength of the evidence is to be assessed by the trier of fact in determining ultimate reliability: Nurse, at para. 92, following Mapara and R. v. Kler, 2017 ONCA 64, 354 C.C.C. (3d) 467.
ii. Analysis – Excited Utterance
[29] I am satisfied that the utterance that M.T. made to C.H. qualifies as an excited utterance, which is a well-recognized exception to the hearsay rule.
[30] There is no doubt that a startling event occurred – M.T. was stabbed in the ear and neck. He had just stopped running from the assailant when he came to C.H.’s porch. He was still bleeding. He was in immediate need of medical attention. All attention was focused on his injury and helping him until the ambulance arrived.
[31] I am also satisfied that the possibility of fabrication or concoction is remote in these circumstances. C.H. and J.R. observed M.T. being chased by the assailant. They gave evidence of only two men running down the ramp from the basketball court area, one chasing the other. They observed the assailant trying to stab M.T. across the street, and but for the warning yelled by C.H., M.T. may have suffered additional injury. When C.H. yelled, M.T. continued to run from the assailant. He yelled to ask C.H. to call 911. He ended up on C.H.’s porch. She immediately called 911, which we know happened at 12:06 p.m. She and J.R. were trying to talk to M.T. to keep him lucid. She asked him who did this to him and he answered, “M.J.’s boyfriend”.
[32] The evidence is clear, and I find that C.H. asked this question and received this answer prior to the police or ambulance arriving, which was only four minutes later at 12:10. From the time Officer Simmons arrived, he was by M.T.’s side, attending to his injuries, and his notes reflect receiving no information of this type. He also states that despite the foot traffic in the area, from the time he arrived, no one was directly around M.T. except himself, C.H., J.R. and another individual named T.
[33] At most, I find there was a four-minute time period from the time M.T. arrived on C.H.’s porch until Officer Simmons arrived during which this utterance was made. There is no evidence that anyone else spoke to M.T. except C.H. and J.R. There is no suggestion that either C.H. or J.R. tried to suggest to M.T. that “M.J.’s boyfriend” hurt him. Both M.T. and the assailant were unknown to both ladies prior to this event, and they claim only to know M.T.’s first name now. The possibility of fabrication is remote. The opportunity to concoct a story or fabricate an identification just did not exist.
[34] Clearly, the utterance made by M.T. related to the event of his stabbing, which he personally observed and was a part of.
[35] The circumstances of this statement show that it was spontaneous, when he was still in the throes of the assault. When he was asked by C.H., he answered immediately. C.H. saw him run up and did not see anyone else speak to him until which time he collapsed on her porch. No one else was there except C.H. and her friends. When he later calmed down and spoke to the police, he then had the presence of mind to not say anything. The “startling” event was over.
[36] Having established that the statement was an excited utterance, I will now determine whether the circumstances of this utterance qualify as a rare case in which this exception to the hearsay rule should be disregarded.
[37] In preparation for this trial, M.T. was served with a summons to witness and it was anticipated that he would give evidence. Unfortunately, he did not attend. The officer in charge tried to locate M.T. but was told he had left the country in order to attend a funeral. It was not known when he would return. Accordingly, a material witness warrant was issued. While it was the Crown’s intention to call M.T., it was not clear when or if he would return, or what he would remember. Accordingly, the Crown indicated its intention to seek this application following the evidence-in-chief of C.H., but leaving the weight of this statement for closing argument. At the time of this application, necessity was made out.
[38] Second, I find that the utterance made by M.T. to C.H. was reliable. The statement was made to her before she had a chance to speak to anyone, or to even consider fabricating it. It was made moments after M.T. came to her porch. She did not know who he was at that time. She relayed the statement to the officer no more than 45-60 minutes after it was made to her. C.H.’s credibility was not challenged.
[39] D.S. relies on the case of R. v. Borel, 2021 ONCA 16, in support of his argument that the Crown has not made out necessity, because M.T. was expected to testify whenever he returned. If M.T. confirmed the words he stated to C.H., it would be a prior consistent statement, which is presumptively inadmissible.
[40] At the time the application was argued though, it was not yet known if M.T. would testify or if he would recall this particular evidence. Now that M.T. has given evidence, D.S. can argue in his closing submissions that the statement made to C.H. should have little if any weight. Also, in Borel, the court did not consider whether the statement was an excited utterance, which would establish prima facie necessity and reliability.
[41] D.S. also submitted that any statements made by M.T. were unreliable, because they could be tainted after he spoke with someone by phone in the ambulance and when friends visited him at the hospital. With respect, this argument is also rejected. Any possibility of fabrication by M.T. could not have occurred until after that first phone call, which was after he made the statement to C.H.. No one spoke to M.T. between the time he was stabbed until the time he made the utterance to C.H..
[42] Accordingly, the utterance made by M.T. to C.H. shall be admitted into evidence as an “excited utterance” exception to the hearsay rule.
B. Present Sense Impression Exception
[43] In light of my finding with respect to the excited utterance, it is not necessary to consider whether the statement should be admitted pursuant to the “present sense impression” exception to the hearsay rule.
IV. Conclusion
[44] Accordingly, I find that the Crown has proven on the balance of probabilities that the utterance made by M.T. to C.H. shortly after his attack is an “excited utterance”, which is therefore admitted into evidence at this trial as an exception to the hearsay rule.
Fowler Byrne J.
Released: April 15, 2021
COURT FILE NO.: CRIMJ(P) 1864/19
DATE: 2021 04 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
D.S.
PAST RECOLLECTION RECORDED RULING
Fowler Byrne J.
Released: April 15, 2021