Court File and Parties
COURT FILE NO.: CR-21-30000218-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
MICHAEL MACKINNON
Counsel: Jonathan Smith and Levi Vandersteen, for the Crown Dirk Derstine and Colin Sheppard, for the Defendant
HEARD: March 30, 31, April 1, 6-9, 19-23, 26-28, 2021
BEFORE: Justice J. Copeland
REASONS FOR RULINGS ON HEARSAY AND SCOPELLITI
[1] On April 29, 2021, I gave brief oral rulings on a Crown application to adduce hearsay evidence at trial, and a defence application to adduce disposition evidence about the deceased, pursuant to Scopelliti. Given the time constraints, and in order to allow the trial evidence to proceed, I gave oral rulings with reasons to follow. These are my reasons.
[2] Both applications were heard blended with the trial evidence. Submissions on the applications were made at the close of the Crown’s case. I release my reasons for judgment on the trial-proper today. The evidence relevant to these applications is summarized within my trial judgement. I do not repeat the summary here; although I outline below for each application which paragraphs of the trial judgement contain the relevant evidence.
Admissibility of Richard Deliva’s hearsay statements to PC Brock and Paramedic Angus
[3] The Crown sought to adduce evidence of hearsay statements by Richard Deliva, the victim in the attempted murder count, about the events that precipitated the stabbings. The hearsay statements were made to Police Constable Tyler Brock and Paramedic David Angus. PC Brock and Paramedic Angus were among the first responders who attended at the Working Dog Saloon parking lot in response to the stabbings. In my oral ruling on April 29, 2021, I ruled that the hearsay statements are admissible.
[4] The evidence on this application was primarily the evidence of PC Brock, Paramedic Angus, and Mr. Deliva (in particular his evidence about his lack of memory of the events preceding the stabbings). Some of the other trial evidence has relevance as context (in particular, the security video from the Working Dog Saloon’s parking lot, the evidence of Mr. Deliva’s level of intoxication, and the evidence about Mr. Deliva’s group leaving the parking lot in a taxi and then returning on foot a few minutes prior to the stabbings). All of this evidence is summarized in my trial judgment at paras. 152-169, 191-211, 226-243, 248-257, 268-296 (R. v. MacKinnon, 2021 ONSC 4763).
[5] It is not in dispute that the content of the statements, which contain assertions about events prior to and precipitating the stabbings, are relevant to central issues in this trial. The events that preceded the stabbings are relevant to the NCR defence asserted by Mr. MacKinnon, to the intent required for murder and attempted murder, and to the asserted defence of provocation.
[6] Crown counsel submits that Mr. Deliva’s hearsay statements are admissible under the common law spontaneous utterance hearsay exception. Crown counsel argues that the evidence shows that Mr. Deliva’s statements to PC Brock and Paramedic Angus were made beginning within five minutes (to PC Brock) and 10 minutes (to Paramedic Angus) of the stabbings. Crown counsel submits that the record supports that Mr. Deliva’s mind was still dominated by the circumstances of the stabbing at the time he made the statements. In particular, Crown counsel relies on the timing, the seriousness of the injuries, and the evidence that Mr. Deliva repeatedly said to PC Brock words to the effect of, “Please don’t let me die” in the time frame when he made the statements. In the alternative, Crown counsel argues that the statements are admissible under the principled exception to the hearsay rule as necessary and reliable hearsay. Crown counsel also makes the submission that portions of the statements relating to the description of the knife are admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements.
[7] The defence resists the admission of the hearsay statements. The defence submits that the statements do not fall within the spontaneous utterance exception because when all of the circumstances in which the statements were made are considered, there are factors that rebut the reliability of the statements, and raise concerns about concoction, rebutting the basis for admissibility under the spontaneous utterance exception. The defence points to a number of factors in this regard, including that the statements were elicited by questions from PC Brock and Paramedic Angus; Mr. Deliva’s level of intoxication at the time he made the statements; the submission that the statements to PC Brock are inconsistent with the statements to Paramedic Angus; and that when viewed in the context of other evidence, Mr. Deliva’s statements appear to be edited and/or incomplete, particularly in that they make no reference to his group leaving the parking lot in a taxi, and then almost immediately returning on foot. The defence argues that the statements are also not admissible under the principled exception to the hearsay rule, both because they are not sufficiently reliable, and because their prejudicial effect outweighs their probative value.
[8] The spontaneous utterance exception to the hearsay rule permits the admission into evidence of hearsay statements where the statements are made in response to a dramatic or startling event and are of such spontaneity and contemporaneity that the possibility of concoction may be safely discounted. For the exception to apply, the circumstances of the making of the statements should be so unusual, startling, or dramatic that they would dominate the declarant’s thoughts at the time of the making of the statements. To fall within the spontaneous utterance exception, statements need not be strictly contemporaneous with the event that led to the making of the statements, so long as the stress or pressure created by the event is ongoing, and the statements were made before there was time to contrive and misrepresent: R. v. Khan, 2017 ONCA 114 at para. 15; R. v. Hartling, 2020 ONCA 243 at paras. 58-62; R. v. Nurse, 2019 ONCA 260 at paras. 77-88; R. v. Nguyen, 2015 ONCA 278 at para. 146; R. v. Nicholas, 2004 CanLII 13008, 70 O.R. (3d) 1 (CA) at paras. 88-89; R. v. Mullin, 2019 ONCA 890 at paras. 41-42.
[9] I find that Mr. Deliva’s utterances to PC Brock and Paramedic Angus are admissible pursuant to the common law spontaneous utterance exception to the hearsay rule. The utterances were made within minutes of the stabbings. The stabbings happened at approximately 2:03 a.m. PC Brock arrived at the scene and was with Mr. Deliva from approximately 2:08 a.m., providing first aid until the paramedics arrived. Paramedic Angus arrived at the scene at 2:13 a.m., and began treating Mr. Deliva. The evidence of both PC Brock and Paramedic Angus was that they began asking Mr. Deliva what happened essentially as each of them got to the scene. Thus, Mr. Deliva’s statements to PC Brock were made starting within five minutes after the stabbing. Mr. Deliva’s statements to Paramedic Angus were made starting within 10 minutes from the stabbing. The ambulance left for the hospital at 2:21 a.m. Although there may have been further statements when Mr. Deliva was in the ambulance (before Mr. Deliva’s level of consciousness dropped), I find that the evidence supports that the bulk of the utterances were made beginning when each of PC Brock and Paramedic Angus arrived. Both PC Brock and Paramedic Angus testified, and I accept their evidence, about reasons connected to their work why they asked Mr. Deliva what happened, and why they did so at the start of their interaction with him.
[10] The evidence is clear that the utterances were made while Mr. Deliva lay in the parking lot of the Working Dog Saloon with life-threatening injuries, and was being treated by first-responders. In these circumstances, the stress of the stabbings would still have dominated Mr. Deliva’s mind such that I find that the possibility of concoction is sufficiently discounted for the statements to be admissible. The circumstances in which Mr. Deliva made the statements are classically the type of situation where the spontaneous utterance exception has been held to apply: Hartling at paras. 62-67; Nurse at para. 83.
[11] Counsel for Mr. MacKinnon argues that various factors about the hearsay statements, both their content and the circumstances in which they were uttered, should lead the court to conclude that they are not sufficiently spontaneous and are unreliable. The factors argued by the defence include that the statements were elicited in response to questions from PC Brock and Paramedic Angus; that the substance of the statements to PC Brock are (arguably) inconsistent with the substance of the statements to Paramedic Angus; that the substance of the statements (arguably) shows that they are incomplete and effectively edited by Mr. Deliva; and Mr. Deliva’s significant level of intoxication, which the defence argues called into question the reliability of the hearsay statements he made to the first responders.
[12] One must bear in mind in considering these arguments that admissibility is not the end of the analysis. Common law hearsay exceptions, like the spontaneous utterance exception, incorporate an inherent reliability requirement: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 212; Nurse at para. 63. As with hearsay admitted through the principled approach to the hearsay rule, the reliability at issue at the admissibility stage is threshold reliability. In the case of the spontaneous utterance exception, implicit in the common law exception is the notion that the circumstances in which the statement was made provide circumstantial guarantees of reliability: Starr at para. 212. Where a statement is admitted into evidence under the common law spontaneous utterance exception, the trier of fact must still consider the ultimate reliability of the statement in the context of the evidence as a whole.
[13] I have considered the various factors put forward by the defence in this case, and the extent to which they bear on admissibility, as distinct from ultimate reliability. I am satisfied that Mr. Deliva’s hearsay statements meet the threshold for admissibility under the spontaneous utterance exception to the hearsay rule.
[14] In terms of the manner in which the statements were elicited, I find that the fact that questions were asked by both PC Brock and Paramedic Angus that elicited the statements does not render them inadmissible under the spontaneous utterance exception. I find that the questions asked by both PC Brock and Paramedic Angus were essentially open-ended questions in the nature of “what happened?” Additionally, in the case of PC Brock, I find that he must have asked for a description of the perpetrator of the stabbings. This manner of questioning is not of a nature that it removes the spontaneity of the utterances, or the fact of the stabbings still have an effect on Mr. Deliva at the time made the statements: Nicholas at para. 91; Hartling at paras. 50-53, 62-67; Nurse at para. 85; R. v. Hall, 2018 MBCA 122 at para. 47.
[15] With respect to the other factors raised by the defence, as I read the authorities, factors such as intoxication of the declarant, whether the substance of the statements are consistent or inconsistent with each other, or inconsistent with other evidence, or issues with ambiguity or interpretation of the statements, although not irrelevant to the issue of admissibility, in some circumstances are properly left to be considered in relation to ultimate reliability: Hartling at paras. 50, 55, 62-67; Nurse at paras. 26, 48, 83-86. I find that this is one such case. I note as well that the risk of prejudice is limited in a judge alone trial, where I am well-placed to consider the extent to which hearsay dangers may still have relevance to ultimate reliability, even where the test for admissibility is met.
[16] As I indicated in my April 29, 2021 ruling, I admitted the utterances in their entirety. The portions about what happened before the stabbing are admissible for the truth of their contents. The portions describing the knife are only admissible for the fact they were made, and the timing, context, and circumstances they were made, in order to assess Mr. Deliva’s evidence at trial about the knife.
[17] As I indicated in my April 29, 2021 oral ruling, because I found the statements to be admissible under the common law spontaneous utterance exception, it was not necessary to consider the principled exception to the hearsay rule, or the narrative as circumstantial evidence exception to the rule against prior consistent statements: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 60; Starr at paras. 211-214; Nurse at paras. 59-61.
[18] I find that the probative value of the utterances exceeds any potential prejudicial effect. They have relevance on factual issues central to the NCR defence, the intent for murder and attempted murder, and the asserted provocation defence. In a judge alone trial, to the extent that even with the common law hearsay exception being satisfied, there remain some hearsay dangers, I am capable of weighing that in my role of trier of fact in the ultimate weight I give to the hearsay statements in the context of the trial evidence as whole.
[19] This ruling, of course, only addresses admissibility of the utterances. I indicated in my oral ruling on April 29, 2021, that I would still have to consider ultimate reliability of the utterances in the context of all of the evidence at the end of the trial. I also indicated in my oral ruling that many of the factors that the defence argued made the statements unreliable are factors which may have relevance to ultimate reliability, and which I would consider at that stage in the context of all of the evidence. In my trial reasons, released separately today, I consider the ultimate reliability of the hearsay statements at paras. 627-629.
Admissibility of evidence disposition evidence regarding Paul Spilchen pursuant to Scopelliti
[20] Mr. MacKinnon brought an application pursuant to the decision in R. v. Scopelliti, 1981 CanLII, 34 O.R. (2d) 524 (CA), seeking to tender two bodies of evidence in relation to the deceased, Paul Spilchen. The defence submits that the two bodies of evidence are probative of whether Mr. Spilchen had a disposition to start confrontations when he had been drinking. In very summary form, the defence submits that this evidence is admissible in relation to the issue of who instigated the confrontation that precipitated the stabbings, which has relevance to the NCR defence, the intent required for murder and attempted murder, and the defence of provocation.
[21] The evidence the defence sought to elicit under the rubric of the Scopelliti application involved two bodies of evidence:
(i) Evidence of the events in the darts area of the bar, including Paul Spilchen’s interaction with Eric Carter, and a phone call made to Josh Spilchen, approximately 40 minutes prior to the stabbings. This evidence was led during the trial prior to submissions on this application because of the agreement to proceed with the trial and applications blended, and also because the Crown agreed that it was admissible for other purposes;
(ii) Evidence from Josh Spilchen about Paul Spilchen’s propensity to instigate confrontations when he had been drinking. Without getting into the substance of that evidence in detail, I note that Josh Spilchen’s statement on this issue is mixed, and will ultimately require assessment by me as the trier of fact, in the context of all of the evidence, if the evidence is admitted pursuant to Scopelliti.
[22] With respect to the first body of evidence, about events in the darts area, the parties agreed in submissions on this application that since this evidence was admissible for other reasons (narrative, and Mr. Spilchen’s demeanour proximate in time to the stabbings) and this was a judge-alone trial, they were content to argue in final submissions whether it could be used with respect to whether Paul Spilchen had a disposition to instigate confrontations when intoxicated. As a result of that agreement, I made no ruling on that category of evidence in my oral ruling on April 29, 2021.
[23] For the second category of evidence, Josh Spilchen’s evidence about Paul Spilchen’s propensity to instigate confrontations when he had been drinking, the relevant evidence is summarized at paras. 614-615 of my trial judgement. The parties agreed that rather than call Josh Spilchen as a witness at trial, if I ruled his evidence was admissible, his statement to police given June 17, 2018 would be admitted as his trial evidence (both on disposition and on the non-hearsay evidence that Josh Spilchen could provide about the disagreement in the darts area on the evening of June 15/16, 2018). I note, as was adverted to in submissions, some portions of the transcript of Josh Spilchen’s statement do not address the issue of Paul Spilchen’s disposition (or events in the darts area), and some portions are inadmissible hearsay.
[24] The defence position on Josh Spilchen’s evidence is that evidence that Paul Spilchen had a disposition to instigate confrontations when he was intoxicated is relevant to central issues in this case and has significant probative value. The events immediately preceding the stabbing, in particular, who instigated the confrontation that led to the stabbings, are central to the issues of the NCR defence in this case, the intent for murder and attempted murder, and the defence of provocation. The defence submits that Mr. Spilchen’s disposition to instigate confrontations when he had been drinking (which he clearly had been that evening) is relevant to whether he was acting aggressively in the time immediately preceding the stabbings, which is of significant relevance to the three legal issues I have just outlined. The defence further submits that the risk of prejudicial use of this evidence, if admitted, is low in a judge alone trial.
[25] I should make clear that there is no suggestion in this case that Mr. Spilchen’s disposition was known in any way to Mr. MacKinnon. He had never met Mr. Spilchen before. Thus, the argument advanced by the defence relates to a claim about Mr. Spilchen’s disposition, and that the existence of the disposition is some evidence that he acted in accordance with that disposition on the night of June 15/16, 2018.
[26] The Crown position is that the evidence of Josh Spilchen about Paul Spilchen’s disposition to instigate confrontations when he was intoxicated is not sufficiently probative to be admitted. In particular, Crown counsel relies on portions of Josh Spilchen’s statement where he says that Paul Spilchen had matured, and suggests that such conduct by Paul Spilchen was in the past. Crown counsel further submits that even if this disposition was not in the past, Josh Spilchen’s statement does not go so far as to say that Mr. Spilchen had a disposition for violence when intoxicated.
[27] In addition, Crown counsel makes the submission that if the evidence of Josh Spilchen is admitted in relation to Paul Spilchen’s disposition to start confrontations when he was intoxicated, then the Crown should be permitted to tender evidence about Mr. MacKinnon’s 1995 robbery conviction in response. The basis for this submission is that the defence position that Mr. Spilchen’s disposition is relevant to whether he instigated the confrontation that led to the stabbings is implicitly a claim that Mr. Spilchen was more likely to have instigated the confrontation than Mr. MacKinnon. For this reason, evidence about Mr. MacKinnon’s disposition for violence is admissible to rebut the claim that it is more likely that Mr. Spilchen started the confrontation, and to provide a balanced evidentiary foundation to assess the issue of who instigated the confrontation. Crown counsel also takes the position that if the evidence about Mr. Spilchen’s disposition to be confrontational when intoxicated is admitted, the Crown should be permitted to lead evidence of Mr. Spilchen’s peaceable disposition in response.
[28] With respect to the admissibility of Mr. MacKinnon’s 1995 robbery conviction, the defence submits that it is not sufficiently probative on the issue of Mr. MacKinnon’s disposition to be admitted in response to evidence about Mr. Spilchen’s disposition. The conviction is from approximately 25 years prior to the events in this trial, when Mr. MacKinnon was 19 years old. Mr. MacKinnon in 2018 was at a very different place in his life, settled in a long-term relationship, and working steadily. The defence submits that the Crown is not permitted to lead disposition evidence about a defendant to balance the scales in every case where the defence is permitted to adduce evidence about the disposition of a victim of an offence. The defence accepts that if evidence of Mr. Spilchen’s disposition to be confrontational when intoxicated is admitted into evidence, then the Crown should be permitted to lead evidence of Mr. Spilchen’s peaceable disposition in response.
[29] The parties do not differ significantly on the governing legal principles. In Scopelliti, Martin J.A., writing for the court, held that evidence of disposition of a victim of an offence to act aggressively unknown to a defendant can be admitted where such evidence is relevant to a fact in issue in a trial. Typical situations where such evidence will be relevant include cases involving an assertion of self-defence or provocation, because evidence that a victim had a disposition to act aggressively is probative of whether the victim acted aggressively at the time of the alleged offence. There is no exclusionary rule for such evidence. It is presumptively admissible, so long as it is confined to evidence which may legitimately and reasonably assist the trier of fact (i.e., relevant to and probative of a fact in issue). In addition, there must be some appreciable evidence of the victim’s aggression on the occasion in question. This is a fact-specific analysis. This type of evidence will only be inadmissible where its prejudicial effect substantially outweighs its probative value: Scopelliti at paras. 37, 45-47; R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695 at para. 47 (CA); R. v. Varga, 2001 CanLII 8610 (ONCA) at paras. 71-76; R. v. Golov, 2017 ONSC 6672 at paras. 38-51.
[30] I find that applying these principles to the record before the court, Josh Spilchen’s evidence in relation to whether Paul Spilchen had a disposition to instigate confrontations when he was intoxicated is admissible in evidence. The defence position is that either Mr. Spilchen or Mr. Deliva made a threat to shoot immediately prior to the stabbings. At the time this application was argued, Mr. MacKinnon was anticipated to testify (and in the event, did testify) to this effect. Evidence that Mr. Spilchen had a disposition to instigate confrontations when intoxicated is relevant to the issues of provocation, intent, and NCR, on the issue of whether it is more probable that Mr. Spilchen instigated the confrontation that culminated in the stabbing. Essentially, the line of inference is that if the trier of fact accepts that Mr. Spilchen had a disposition to instigate confrontations when intoxicated, it would be open the trier to infer that this makes it more probable that he acted in accordance with that disposition on the night of June 15/16, 2018, and was the one who started the confrontation that precipitated the stabbings: Watson at paras. 35-39. The disposition evidence is also indirectly relevant to the assessment of the credibility and reliability of the defendant’s evidence, because depending on my ultimate assessment of the disposition evidence regarding Paul Spilchen, it could make Mr. MacKinnon’s account of events more plausible.
[31] I do not accept Crown counsel’s submission that Josh Spilchen’s evidence is not admissible because it is not evidence about a disposition for actual violence (as distinct from a disposition to start confrontations). Although many cases argued pursuant to the principles in Scopelliti involve a disposition for actual violence, the principles are not limited to situations of a disposition for actual violence: see for example: Watson at paras. 27-39; Golov at paras. 20-25, 31, 57-61, 66-67.
[32] What matters for purposes of admissibility is that the disposition at issue has relevance and probative value to a fact in issue in the particular case. This will always be a fact-specific analysis of the anticipated evidence and issues in a trial, and how the asserted disposition of the victim fits (or does not fit) into those issues: Watson at para. 30.
[33] In this case, the defence is not suggesting that Paul Spilchen was physically violent, or that physical violence precipitated the stabbings. Rather, the defence position is that either Mr. Spilchen or Mr. Deliva made a verbal threat about shooting immediately prior to the stabbings. I appreciate that Josh Spilchen’s evidence is not as specific as that Mr. Spilchen had a disposition to make threats when he was intoxicated. But I find, in the context of the defence position in this case of a verbal threat immediately prior to the shootings, that Josh Spilchen’s evidence about Paul Spilchen having a disposition to instigate confrontations when intoxicated is sufficiently probative to meet the admissibility threshold under Scopelliti.
[34] In submissions, Crown counsel focussed much of their argument on the portion of Josh Spilchen’s statement at p. 21, where he said that Paul Spilchen’s behaviour of being prone to instigate confrontations when he was intoxicated was in the past, and that he had matured. Crown counsel’s argument was that anything that Josh Spilchen said about Paul Spilchen instigating confrontations when he was intoxicated was not relevant to Paul Spilchen’s disposition on the night of June 15/16, 2018, because Josh Spilchen said in the police statement that such behaviour was in the past.
[35] The difficulty that I see with this argument it that it involves reading selectively from Josh Spilchen’s statement, rather than considering all of the portions of the statement where he addressed Paul Spilchen’s disposition when he was intoxicated. Josh Spilchen also said that Paul Spilchen did not go out drinking with his friends anymore and get hammered. I find that it is clear that on the night of June 15/16, 2018, Paul Spilchen went out with his friends and got significantly intoxicated. This leads me to find that the type of behaviour described by Josh Spilchen may not have been entirely in the past. I find that there is a sufficient evidentiary basis to admit the evidence of Josh Spilchen about Paul Spilchen’s disposition to start confrontations when intoxicated. It has some probative value on the issue of who instigated the confrontation in the Working Dog parking lot. I will bear in mind the full context and Josh Spilchen’s comments about Paul Spilchen having matured and such conduct being in the past in my assessment of the weight to be given to this evidence in the context of all of the trial evidence.
[36] I find that Josh Spilchen’s evidence in relation to Paul Spilchen’s disposition meets the threshold for admissibility of having relevance and probative value on the issue of who instigated the confrontation that led to the stabbings on the night of June 15/16, 2018. That factual issue is central to the NCR defence in this case, to the intent for murder and attempted murder, and to the defence of provocation. I will assess the ultimate probative value of the disposition evidence about Paul Spilchen at the end of the trial, in the context of all of the evidence.
[37] To some extent, the Crown led evidence of Paul Spilchen’s peaceable disposition prior to my ruling on the Scopelliti application. This was led through the evidence of Richard Deliva and Gordon Forgues. This evidence was led prior to my ruling because the trial was judge alone, and because the evidence on this application was heard blended with the trial evidence. As I have noted, the defence does not contest that evidence of a victim’s peaceable disposition is admissible in response to evidence about a victim’s disposition for aggression. The case law supports this proposition: Scopelliti at para. 54; Golov at para. 55. I ruled that evidence of Paul Spilchen’s peaceable disposition is admissible in response to the evidence of Josh Spilchen about Paul Spilchen’s disposition. I will consider the ultimate probative value of that evidence at the end of the trial.
[38] In the context of the issues in this trial, and the governing legal principles, I ruled that the Crown was permitted to lead evidence about Mr. MacKinnon’s 1995 robbery conviction in response to the evidence about Paul Spilchen’s disposition. I made this ruling for the following reasons.
[39] I find that the use that the defence wants to make of evidence about Paul Spilchen’s disposition implicitly puts Mr. MacKinnon’s character in issue, in the sense described by Justice Watt, when he was a member of this court, in R. v. Yaeck [1989] O.J. No. 3002 at para. 21 (see also R. v. Sparkes, 2005 CanLII 15707 (ONCA) at paras. 6-8). The use that the defence wants to make of the disposition evidence about Paul Spilchen is to argue that it makes it more likely that Paul Spilchen instigated the confrontation that culminated in the stabbing. Implicit in this use is a comparative claim – that it is less likely that Mr. MacKinnon instigated the confrontation.
[40] In light of this implicit claim by the defence (that in saying that it is more likely that Mr. Spilchen instigated the confrontation, the defence is also saying it is less likely that Mr. MacKinnon instigated the confrontation), the evidence about the 1995 robbery conviction, which relates to Mr. MacKinnon’s disposition involving an offence of violence, is relevant to present a balanced assessment of the issue of how the confrontation was instigated, and by whom.
[41] I appreciate that Mr. MacKinnon’s robbery conviction is dated. But part of the evidence of Josh Spilchen about Paul Spilchen’s disposition to instigate confrontations when intoxicated is that he said to police that Paul had changed; although, as I have noted above, parts of Josh Spilchen’s statement may cut the other way. Given there are issues about the currency of the disposition evidence about Paul Spilchen which must be weighed, I am satisfied that it is appropriate to admit the evidence about Mr. MacKinnon’s 1995 conviction for robbery, and consider the issue of how long ago it was in my ultimate assessment of all of the evidence.
[42] I advised counsel when I made my oral ruling, that if the defence wishes to elicit facts related to the 1995 robbery conviction pre-emptively in examination in chief, it is entitled to do. I make this ruling by analogy to the practice that a party calling a witness is permitted to lead a criminal record in examination in chief, where the record is admissible for purposes of credibility in cross-examination.
[43] In light of this ruling, and the agreement of the parties that Josh Spilchen’s police statement would be tendered as his evidence, I marked the transcript of his police statement as a numbered exhibit. Although I entered the full transcript as an exhibit, portions that do not fall within the two categories I have outlined, or that are hearsay, were not admitted. Because the trial is judge alone, the transcript was not edited. I am alive to the fact that portions of it are either hearsay, or do not address issues within the scope of this ruling. I advised counsel in my oral ruling that they could address me in closing submissions regarding which portions of the statement are inadmissible hearsay if they wished, but that the portions of the statements that are hearsay seemed fairly clear to me.
Justice J. Copeland
Released October 28, 2021
COURT FILE NO.: CR-21-30000218-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL MACKINNON
REASONS FOR RULINGS ON HEARSAY AND SCOPELLITI
Justice J. Copeland
Released: October 28, 2021