Court File and Parties

COURT FILE NO.: CR-20-145 DATE: 20220510 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Respondent

Janet Booy and Mark Dean, for the Respondent

• and -

Richard Taylor Applicant

Jennifer Penman and Kristen Dulysh, for the Applicant

HEARD: May 6, 2022

RULING – ADMISSIBILITY OF DYING DECLARATIONS AND SPONTANEOUS UTTERANCES

The Honourable Mr. Justice Skarica

Overview

[1] In the early morning hours of July 9, 2018 at 3:30am, it is alleged that Richard Taylor, the accused entered the residence and bedroom of his sleeping mother Carla Rutherford (Carla) and stepfather Alan Rutherford (Alan) with intent to kill them. Once inside the bedroom, the killer poured a combustible fuel at or near the foot of the bed and ignited the fuel on the floor, setting it ablaze. Alan was severely burned and escaped by jumping through the bedroom window. Carla died in the bedroom.

[2] Alan told several witnesses, varying accounts, the gist of which was that “Rich” or “Rick” was responsible. Alan died later that afternoon from his serious burn injuries inflicted by the fire.

Issues

[3]

1. Are Alan’s utterances admissible as dying declarations?
2. Are Alan’s utterances admissible as spontaneous utterances exception to the hearsay rule?

Facts

[4] Alan, with severe burns to 95% of his body, made utterances to several people.

Karen Monk

[5] Karen Monk (Karen) was Alan and Carla’s next door neighbour. She knew Carla’s two adult sons – “Rich” or “Richie”, as Carla called him and Chris. Carla’s ex husband was named Richard but Karen did not know whether he went by the short form “Rich”.

[6] At 3:40am, Karen was awoken by screaming and banging on her front door.

[7] She opened the door – it was Alan at first unrecognizable due to his badly burnt body. When Karen asked if there was anyone Alan wanted to call, Alan replied, “Don’t call Rich, he’s the one who did this and he’ll already know about it”. Alan continued to scream for his wife Carla.

Lauren Monk

[8] Lauren Monk (Lauren) is the 17 year old daughter of Karen Monk. She heard Alan banging on the door. Lauren’s mother, Karen answered the door and sounded distressed. Lauren went to see and saw Alan’s “almost lifeless body, badly burnt, on their front porch.” Alan kept repeating he tried to get his wife out of the house and was very sorry he couldn’t do more. When Karen asked Alan if he wanted her to call someone, Alan sobbed, “Don’t call “Rick”. I think he had something to do with this” and “Don’t call “Rick” I know he had something to do with this.”

[9] Lauren observed Alan’s skin peeling off him due to the severe burns and as she supported his head, charred hair came off in her hands. Alan was sobbing, repeating he had been firebombed, exclaiming his life was over and apologized to Lauren that she had to see him this way. As the firefighters and ambulance wheeled Alan away, he was “yelling about his son-in-law, about how he could have had something to do with it.”

Ben Winfield

[10] Ben Winfield was sleeping in the basement with his girlfriend Kristin Monk. At 4am he went upstairs. He saw Alan Rutherford sitting on the front porch and could hear him moaning in pain. As the ambulance crew rolled the gurney past him, Ben heard Alan screaming, “I know who did this, my son-in-law” and Ben thinks Alan said, “Rick”.

Scott Stevenson

[11] At 3:50am paramedic Scott Stevenson (Scott) arrived at 8 Greening Court with his partner paramedic Lisa Kovacs. They were directed next door where they found Alan Rutherford naked with approximately 90 percent of his body burned. Alan was repeating that he could not save his wife.

[12] Scott asked Alan what happened. Alan told him there was a fire in his bedroom blocking the door and he had to run through the fire and jump out the bedroom window. When questioned as to how this could have happened, Alan said, “Yes I have my suspicions of who it was”. When asked “who” he replied, “I think it was my son-in-law”. Scott asked “why” and Alan said, “cause there’s a lot of problems going on”.

Lisa Kovacs

[13] Paramedic Lisa Kovacs (Lisa) accompanied her partner Scott Stevenson, they were directed to Alan Rutherford on the neighbour’s porch. He was naked with his skin sloughing off, screaming for his wife and dogs saying he was firebombed.

[14] Alan was hyperventilating and said he knew his wife was dead, that he tried to save her but he couldn’t get through the door. In the back of the ambulance, Alan was yelling, “I can’t believe this happened, I can’t believe they did this. They firebombed us.” When questioned if he thought they did it on purpose, Alan said, “Yeah maybe, maybe yeah”. Lisa asked Alan who would have done this, Alan responded, “Family”. When questioned as to why, he said, “Financial”.

Police Constable Jason Katzman

[15] At 3:50am Officer Katzman responded to 8 Greening Court in Dundas. He found Alan Rutherford badly burnt, lying naked at his neighbour’s front door screaming that his wife was still in the house. He said his house was firebombed and that he climbed out his bedroom window but couldn’t get his wife out. Alan said it was his wife’s son “Rich” who was responsible. Officer Katzman indicated Alan could not provide any additional details as he was in a great amount of pain and was mainly concerned about the well being of his wife.

Additional Facts – Defence

[16] The defence, in its respondent’s record, notes that the paramedics Scott Stevenson and Lisa Kovacs were given the incorrect birth date of 1959/09/26 by Alan declaring he was 58 years old. Alan’s birth date is 1954/09/26 making him 63 years old at the time of the events. In the ambulance call report – see Tab 2 of the respondent record – under the heading general appearance – the paramedics describe Alan as “alert, oriented.”

Alan Rutherford – Medical Condition

[17] The doctors at Hamilton General Hospital advised PC Adam Gilbert that Alan Rutherford sustained severe burns to approximately 95% of his body and would not survive. Alan was kept medically alive so that family could attend. At 3:01pm on July 9, 2018, Alan Rutherford was pronounced dead.

[18] The Crown notes that Alan made his comments to 6 witnesses who overheard his statements over a 45 minute period at or near the Monk residence. It is obvious that Alan was in a great deal of pain over that time period and the stress of the fire event was still ongoing.

Law – Dying Declarations and Spontaneous Utterances – General Principles

[19] Dying declarations and spontaneous utterances are long standing exceptions to the hearsay rule. If a trial judge finds that the evidence falls within one of the traditional exceptions, that finding is conclusive and the evidence is admissible – see R. v. Nurse, 2019 ONCA at para. 59, R. v. Cote, 2018 ONCA 570 at para. 21, R. v. Khelawon, 2006 SCC 57 at para. 60.

[20] The courts have recognized that this conclusion may be displaced when the exception itself is challenged – see Nurse at para. 60, 93, Khelawon at para. 60, R. v. Mapara, 2005 SCC 23 at para. 15. In this case, neither exception is challenged on a categorical basis.

[21] The dying declaration and spontaneous utterance exceptions are rooted in an acceptance that the circumstances in which the exceptions are met are ones in which there is only a remote possibility of fabrication or concoction. In the case of a dying declaration, the fact that the statement comes “from the very person who was killed, speaking about the circumstances of their death, often moments before the solemn event of their death” gives the statement inherent trustworthiness. In the case of a spontaneous utterance, the stress or pressure of the preceding act or event means that “the possibility of concoction can be safely discounted.” See Nurse at paras. 63, 70, 73, 80.

[22] The pre-conditions to admission of a dying declaration are to be applied rigidly. They are: a. the deceased had a settled, hopeless expectation of almost immediate death; b. the statement was about the circumstances of the death; c. the statement would have been admissible if the deceased had been able to testify; and d. the offence involved is the homicide of the deceased. See Nurse at paras. 71-73.

[23] For a spontaneous utterance to be admissible, it must meet the following criteria: a. The utterance must be made under the stress or pressure of an ongoing dramatic or startling event; b. the utterance must relate to that event; c. the statement need not be made strictly contemporaneous to the event so long as the stress or pressure created by it is ongoing so that there is little or no possibility of concoction or fabrication. See R. v. Nurse at para. 80, R. v. Hartling, 2020 ONCA 243 at para. 17, R. v. Carty, 2017 ONCA 770 at paras. 7-8.

Admissibility Versus Reliability – Rare Case

[24] In rare cases, evidence that falls within one of the traditional exceptions to the hearsay rule may be excluded. The onus is on the party seeking to exclude the evidence to demonstrate that the evidence fails to satisfy the necessity and reliability requirements of the principled approach. Apart from the most exceptional cases, this argument will be exhausted where the traditional exception is found to be compliant with the principled approach. Where two valid exceptions are squarely engaged, the party seeking to exclude the evidence has an even steeper burden. See Nurse, at paras. 41, 61, 64, 90-93, Khelawon, at para. 60, Mapara at para. 15, R. v. Starr, 2000 SCC 40 at para. 214.

The Principled Approach – General

[25] Hearsay evidence that fits within a traditional hearsay exception may still be inadmissible in rare cases if not sufficiently reliable and necessary under the principled approach. In the event of a conflict between the principled approach and a traditional exception to the hearsay rule, the Ontario Court of Appeal and the Supreme Court have been clear that it is the principled approach which must prevail. See Nurse at para. 61, Starr at para. 106 and 155, Mapara at para. 15.

[26] Admissibility is to be determined by the trial judge. The trial judge plays the role of gate-keeper in assessing the “threshold reliability” of a hearsay statement. It is the ultimate reliability of the statement that is to be left to the trier of fact. See Khelawon at paras. 2-3, Mapara at para. 16.

[27] In determining threshold liability, the trial judge must always keep in mind that hearsay evidence is presumptively inadmissible. All factors and circumstantial indicators of reliability should be considered to evaluate the dangers presented by the evidence when assessing threshold reliability. See Khelawon at paras. 3-4, Mapara at para. 16.

Application of Law to Facts

[28] The defence argues that the hearsay statements are not reliable. The defence argues that the three witnesses from the Monk household gave varying details of what Alan said. So did the two paramedics. The defence complains that PC Katzman’s version also differs in detail from the other five. The defence points out that Alan gave the wrong birth year although the paramedics noted that Alan was alert and oriented.

[29] In my opinion, all these defence objections go to weight, not threshold admissibility; these concerns can be properly assessed by the trier of fact in determining ultimate reliability – see Nurse, para. 92. Nurse referred to the House of Lords decision in R. v. Andrews, [1987] A.C. 281, [1987] 1 All F.R. 513 (H.L.) where, as here, the witnesses differed as to the name of the attacker. Lord Ackner indicated, “As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury” see Nurse at para. 84-86.

[30] The defence argues that the hearsay statements refer to three different people – “Rich” who is Richard Taylor Junior (the accused), “Rick” who is Richard Taylor Senior, the accused’s father and Alan’s son-in-law, an unnamed husband of one of Alan’s two daughters.

[31] The accused, Richard Taylor’s three statements to the police have been ruled admissible at a previous pre trial motion. The third statement in particular provides indicia of reliability that Alan is indeed speaking about Richard Taylor Jr. – Rich – that is the accused.

[32] Examples include:

1. At pages 16-18 – Statement #3 – Detective Ashbaugh reads from the Fire Marshall’s report. The report indicated that flammable fluid was poured by the foot of the bed and then lit by an open flame. It is a reasonable inference that Alan was awakened by these events and was able to see and identify his attacker.
2. Alan told Scott Stevenson his attacker was his son in law and “there’s a lot of problems going on.” Statement #3 establishes that the accused had lots of problems going on, including but not limited to, numerous NSF cheques, maxed out credit cards, delinquent loans, garnished wages, utility companies cutting off services to the accused’s home, numerous debts, cancelled vacations, clinical depression of his wife, etc. There is no evidence before me of a different “Rick” or son-in-law and/or a different family member having “lots of problems going on.”
3. Alan tells Lisa Kovacs that “family” did this to him and when asked why, Alan said “Financial”. As summarized, the accused in Statement #3 agrees to numerous, and what I consider to be overwhelming, financial difficulties. At page 119 of Statement #3, the accused indicated he believed, before the arson, that his brother Chris and himself would inherit the full value of the house. There is no evidence before me that a “Rick”, or Richard Taylor Sr. and/or an unnamed son in law knew prior to the arson that they would financially benefit from Alan and Carla Rutherford’s death.

[33] Accordingly, I find that there is sufficient reliable indicia that Alan, in making all his statements, was referring to his wife’s son “Rich”, the accused, as noted by PC Katzman.

Conclusion – Issues #1 and #2 Dying Declaration and Spontaneous Utterance

[34] For the reasons outlined, I find that Alan’s dying declarations and spontaneous utterances do not constitute one of those rare cases where the evidence should be excluded under the principled approach – see Nurse at para. 95.

[35] Accordingly, I find that all of Alan’s utterances to the six witnesses are admissible at his trial on charges of 2 counts of first degree murder.

Principled Approach

[36] In the alternative, were I to evaluate this evidence under the principled approach, I would arrive at the same conclusion. For the reasons already outlined, I find that there are sufficient circumstantial and evidentiary guarantees that Alan’s statements are inherently trustworthy (substantive reliability) – see Nurse at para. 97-104.

[37] Engaging in the four steps framework as outlined in Nurse at para. 104 leads me to conclude that the only remaining likely explanation for the statement is the declarant’s truthfulness and accuracy about the mentioned aspects of the statement.

[38] Further, I find that the defence has failed to meet its onus that the present scenario is one of those rare cases where evidence, otherwise admissible under a traditional exception, should nevertheless be excluded – see Nurse at para. 61, 64, 110.

Order

[39] The Crown’s application is granted. The dying declarations and spontaneous utterances by Alan Rutherford regarding the identity of his assailant should be admitted for consideration by the trier of fact for the truth of their contents.

Skarica J. Released: May 10, 2022