COURT FILE NO.: CR-21-30000-302
DATE: 20220519
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
Jason Gorda and Caolan Moore, for the Crown
C. Stephen White and Kristianne C. Anor, for Kedar Abdl Guerra
Christian Angelini, for Ethan Lou Lee
Philip Klumak and Michael Moeser, for Atneil Fitzroy Nelson
HEARD: May 12, 2022
REASONS FOR RULING
M. Dambrot J.:
[1] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, in the City of Toronto, they committed the first degree murder of Clinton Williams.
[2] At the outset of the trial, the Crown brought an application for an order permitting it to adduce evidence of six utterances made by the deceased shortly before his death as exceptions to the rule against hearsay. The Crown argued that they were admissible as dying declarations, as res gestae statements (also known as spontaneous utterances), or pursuant to the principled approach to hearsay. The admissibility of the utterances was opposed only by Nelson. While Guerra had opposed the admissibility of the utterances in his written material, he withdrew his opposition prior to argument.
[3] I have concluded that the six utterances made by Mr. Williams shortly before his death are admissible in evidence for the following reasons.
Background
[4] Clinton Williams was shot and killed on December 31, 2019. At the time, he was residing with Bernard Mulzac in unit 313 of an apartment building at 100 Wingarden Court in Scarborough. He was shot in the underground parking lot of his building. Surveillance video and cell phone records are important building blocks of the Crown’s case against the three accused. The following is a brief summary of the evidence against them that, for the most part, is gleaned from those sources. For the purpose of this summary, when phone records show that there was contact between cell phones, I will assume that such contact implies that the owners of the cell phones called and communicated with each other.
[5] Guerra and Williams communicated with each other by cell phone during the morning of December 31, 2019. Guerra called Nelson before and after his calls with Williams. Nelson was then in touch with Lee during the afternoon of December 31, 2019. Later that afternoon, Nelson picked Lee up in a silver Mercedes Benz (“Benz”) wagon that he borrowed from his girlfriend. The driver’s side front headlight on this vehicle was dimmer than the passenger side headlight, making the vehicle easy to identify in video surveillance footage.
[6] Nelson and Lee drove to the Travelodge Hotel in Scarborough in the Benz. They were greeted by Guerra in the parking lot. The hotel is a short distance from Williams’ apartment. At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée. At 5:01 p.m., while he was in the hotel room, Guerra called Williams. The call continued for 91 seconds. Guerra, Lee and Nelson left the hotel room at 5:24 p.m., got into the Benz wagon and departed from the hotel.
[7] At 5:42 p.m., 18 minutes after it left the Travelodge Hotel, the Benz was on the street outside the deceased’s apartment building. The occupants parked the Benz and remained in place in the vehicle for approximately 20 minutes. Guerra’s phone records show that he was in the area of William’s apartment building and that he exchanged phone calls with Williams at 5:31, 5:41, 5:53, and 5:59 p.m. During the period that these phone calls occurred, Mulzac observed Williams talking on the phone with someone who had a male voice about finding parking. Mulzac believed that Williams was planning to meet with the person he was speaking to on the phone. After the last of the phone calls, Williams left the unit.
[8] At 6:01 pm, Williams walked out of his building, walked over to the Benz (which was still parked on the street), appeared to speak to someone through the driver’s side window, and then walked towards the underground parking garage of his building. He then opened the door of the underground parking garage, permitting the Benz to enter.
[9] When the garage door opened, the Benz pulled onto the garage entrance ramp and stopped halfway down the ramp. A person matching Lee’s description, who was wearing clothing that matched the appearance of the clothing Lee was wearing at the Travelodge 45 minutes earlier, exited the vehicle from the rear driver’s side door. A gun became visible in his hand approximately 3 seconds after he got out of the vehicle. At 6:03 p.m., the man fired four shots in the direction of the deceased, one of which penetrated Williams’ back and entered his chest. The man then got back into the vehicle. The police located four cartridge casings in the parking garage later that evening. The shooter was outside the vehicle for less than 20 seconds. The vehicle then drove away at a relatively high rate of speed. Although he had been shot, the deceased was still alive, and was able to enter the stairwell of the garage and make his way back to his apartment.
[10] The Benz was observed in the parking lot of the Scarborough Town Centre at 6:13 p.m., and Guerra and Nelson were observed inside the Centre at 6:18 p.m.
The Utterances
[11] The utterances in question fall into two groups: utterances made by Williams to Mulzac, and utterances made by Williams to Toronto Police Constables Partridge and Dionne. The following is a chronological description of the events during the course of which the utterances were made. I will adopt the practice of Crown counsel in their factum of reproducing the utterances in bold for ease of reference.
[12] A short time after Williams left the apartment unit to assist someone with parking, Mulzac heard a knock on the door. He opened it and saw Williams lying on the floor in the hallway on the opposite side of the hall. He asked him what happened, and Williams replied, “I got shot” (utterance #1).
[13] Mulzac helped Williams into the apartment where he fell on the ground facing in the direction of the kitchen. Mulzac again asked Williams what happened. Williams replied that “he got shot by this person he knew” (utterance #2).
[14] Mulzac did not call 911 right away because Williams told him not to, but Mulzac was panicked and called Paul, who was Williams’ best friend. Paul told Mulzac to call an ambulance. At 6:14 p.m., Mulzac called 911. The 911 operator told him to ask the victim who shot him. Mulzac kept pressing Williams about what happened and who had done this, and Williams told him, “the man driving the silver Benz wagon” (utterance #3). I note that while Mulzac has been consistent that the shooter came from a silver Benz wagon, he first mentioned that the shooter was the driver of the Benz at the preliminary inquiry. In any case, Williams never told Mulzac the name of the person who shot him or where he was shot.
[15] Constables Partridge and Dionne arrived at the apartment at 6:18 p.m. When they entered the unit Williams was curled up on the floor, holding his side. His clothing was soaked in blood. P.C. Partridge said that initially, he could hold a conversation with Williams, but Williams seemed panicked, and his primary focus and concern seemed to be for his injuries.
[16] Partridge tried to tend to Williams as best as he could and had brought a first aid kit with him for that purpose. He asked Williams where his injuries were. Williams said, “I think I have been shot in my chest and my chest hurts and my groin hurts” (utterance #4). Partridge began cutting off Williams’ shirt in order to visually inspect the wounds and clarify what the deceased was telling him. When he did this, a small fragment of a spent bullet fell off Williams’ body and onto the floor. He observed an injury in Williams’ armpit that was actively bleeding and another hole on the left side of his torso near his kidney that was also actively bleeding.
[17] The officers continued asking Williams about his injuries, but he was fading, and became less responsive over time. They both asked him who shot him, but he did not answer. Paramedics arrived within ten minutes of the police arriving. As the paramedics loaded Williams onto a stretcher, Partridge asked him where the shooting had occurred. Williams was starting to lose consciousness at this point and was becoming less responsive, but he replied, “B-1” (utterance #5) and nodded in agreement when Partridge asked if that meant “basement” or “parking” (utterance #6). Dionne testified that he thought Williams said “B-1” and “basement” in response to Partridge’s question.
[18] The deceased was transported to Sunnybrook Health Sciences Centre where he was pronounced dead at 7:19 p.m. The cause of death was a single bullet wound that entered his lower left flank and exited his upper right chest. The wound track and trajectory are consistent with him being hunched over when shot in the back.
Are the Deceased’s Utterances Admissible as Dying Declarations?
[19] The dying declaration is a traditional exception to the hearsay rule. Its continued availability was recently confirmed in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 74. The exception has been formulated in slightly different but essentially similar ways in the academic literature, but the formulation most commonly adopted in the caselaw is the one found in David M. Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at p. 213, where the authors list the following four requirements:
The deceased had a settled, hopeless expectation of almost immediate death;
The statement was about the circumstances of death;
The statement would have been admissible if the deceased had been able to testify; and
The offence involved is the homicide of the deceased.
[20] This formulation has been adopted and applied in R. v. Aziga (2006), 2006 CanLII 38236 (ON SC), 42 C.R. (6th) 42, at para. 12; R. v. Hall, 2011 ONSC 5628, at para. 24, conviction aff’d 2015 ONCA 766; R. v. Praljak, 2012 ONSC 5262, at para. 27, conviction aff’d 2019 ONCA 394; and in Nurse, at para. 76.
[21] The accused argues that it is also a prerequisite that the declarant’s death ensue within a reasonable time after the making of the declaration. Here, almost an hour passed between utterances #5 and #6 and death, which, according to the accused, is too long. I do not agree that such a prerequisite forms a part of the rule.
[22] It is true that this prerequisite is included in the formulation of the dying declaration exception to the hearsay rule in S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds, McWilliams’ Canadian Criminal Evidence, loose-leaf (11/2021), 5th ed. (Toronto: Thomson Reuters, 2021), at para. 7:56, but it is not included in the formulations of the test in Paciocco and Stuesser or any of the other leading Canadian texts, including Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis, 2018). Nor is it mentioned in any of the cases I have reviewed, other than a few cases that adopt it from McWilliams, such as R. v. Gary White, 2017 ONSC 7209.
[23] In fact, there is no authority cited in McWilliams to support this prerequisite. On the contrary, McWilliams quotes Wurtele J. in The King v. Laurin (No. 4) (1902), 1902 CanLII 118 (QC CQ), 6 C.C.C. 104 (Que. K.B.), at p. 106, where he stated: “If a person makes a declaration under all these conditions, the fact that death does not take place until some time after will not make the declaration inadmissible in evidence; the time at which the death may afterwards take place is immaterial”.
[24] McWilliams goes on to note that in Aziga, the trial judge admitted statements from two complainants who were dying from AIDS even though the statements were made three weeks, in one case, and 18 hours, in the other, before death.
[25] Nor does it make sense to me that this prerequisite should be recognized. What is fundamental to the dying declaration exception to the hearsay rule is that the declarant had a settled, hopeless expectation of almost immediate death, a time when, in the words of Chief Baron Eyre in R v. Woodcock (1789), 1 Leach 500, 168 E.R. 352 (K.B.), “every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth”. This is what provides a circumstantial guarantee of inherent trustworthiness and reliability to a dying declaration. How long it then takes for the declarant to die seems to me to be of no moment, provided that the declarant does in fact die as a result of the crime committed. There can be no reason for the exception to be unavailable in the case of a deceased, for example, who makes a statement that otherwise meets the requirements for a dying declaration, immediately falls into a coma and never recovers, but does not die for several days.
[26] In this case, there is no question that all the utterances were about the circumstances of death; that the utterances would have been admissible if the deceased had been able to testify; and that the offence involved was the homicide of the deceased. The only live issue is whether the deceased had a settled, hopeless expectation of almost immediate death.
[27] While this determination is a subjective one, the requisite state of mind may be inferred from statements made by the declarant, the extent and nature of the injuries, and other circumstantial evidence. (See Praljak, at para. 28; R. v. Nurse, 2014 ONSC 2340, at para. 33; and R. v. Mulligan (1973), 1973 CanLII 2368 (ON SC), 23 C.R. (N.S.) 1 (Ont. S.C.), at p. 3-4, aff’d (1974), 1974 CanLII 1662 (ON CA), 18 C.C.C. (2d) 270 (Ont. C.A.), aff’d 1976 CanLII 23 (SCC), [1977] 1 S.C.R. 612. Nevertheless, it has been said, rightly, that this is a high threshold to meet.
[28] In this case, since the circumstances of the deceased changed at least to some degree as time went on, I will consider the first group of three utterances made to Mulzac and the second group of three utterances made to the police officers separately.
2. The Utterances Made to Mulzac
[29] It seems to me to be entirely conceivable that Williams, having had a gunshot penetrate his back and enter his chest, feeling pain in his back and in his groin, having fallen to the floor in the hallway as he attempted to return to his apartment and having fallen again after being helped inside his apartment, had a settled and hopeless expectation of imminent death when he made his utterances to Mulzac. However, in light of his urging Mulzac not to call the ambulance, I am unable to say that I am satisfied, on a balance of probabilities, that this prerequisite is met.
[30] Accordingly, Williams’ utterances to Mulzac are not admissible as dying declarations.
2. The Utterances Made to Constables Partridge and Dionne
[31] By the time Williams made his utterances to the police officers, the circumstances had changed. When they arrived, Williams was curled up on the floor, holding his side. His clothing was soaked in blood, he seemed panicked, and his primary focus and concern seemed to be for his injuries, which were actively bleeding. While P.C. Partridge said that initially, he could hold a conversation with Williams, he said that Williams was fading and became less responsive over time. By the time of utterances #5 and #6, Williams was beginning to lose consciousness. Based on this evidence, taken together with the nature and extent of the injuries, I am satisfied on a balance of probabilities that when utterances #4, #5 and #6 were made, Williams had a settled, hopeless expectation of almost immediate death.
[32] Accordingly, Williams’ utterances to Constables Partridge and Dionne are admissible as dying declarations.
Are the Deceased’s Utterances Admissible as Spontaneous Utterances?
[33] The spontaneous utterance is also a traditional exception to the hearsay rule. Its continued availability is not in question. The rationale for the spontaneous utterance exception was explained in R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, as follows:
a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
[34] The Ontario Court of Appeal clarified in R. v. Dakin (W.E.) (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (C.A.) that strict contemporaneity is not required, stating, at para. 20:
The admissibility of the declaration is assessed not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion: McCormick on Evidence, 4th Ed. (1992), para. 272, at pp. 218-219.
[35] In Nurse, in addition to reaffirming the dying declaration exception to the hearsay rule, the Court of Appeal also discussed the spontaneous utterance exception and, at para. 82, reaffirmed this passage from Dakin. The Court went on, at para. 85, to endorse Lord Ackner’s clarification of the spontaneous utterance exception in the unanimous decision of the House of Lords in R. v. Andrews, [1987] A.C. 281, 1 All E.R. 513 (H.L.), the functional approach he endorsed, and the guidelines he provided to trial judges at pp. 300-301. The Court of Appeal did not see the need to repeat those guidelines in Nurse, but it may be of assistance for me to repeat them here. Lord Ackner stated:
My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as “hearsay evidence?”
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 to consider under this heading.
Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
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 to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.
[36] Following these guidelines, I ask myself whether, in the circumstances here, the possibility of concoction or distortion can be disregarded.
[37] To answer this question, I begin by considering the circumstances in which Williams’ utterances were made, in order to satisfy myself that the event was so unusual or startling or dramatic as to dominate Mr. William’s thoughts, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.
[38] Needless to say, getting shot in the back unexpectedly while assisting someone to find a spot to park their car would be an unusual, startling and dramatic event for anyone, one that would inevitably dominate the thoughts of the victim, particularly when the bullet then proceeds through the victim’s chest before exiting his body. In such a situation I conclude that the pressure of the event almost inevitably would exclude the possibility of concoction or distortion, providing that the utterances under consideration were made in conditions of approximate but not exact contemporaneity.
[39] In order for the utterances to be made in conditions of approximate contemporaneity, they must be so closely associated with the event that excited them that it can be fairly stated that the mind of the declarant was still dominated by the event. I must ask myself whether the event that provided the trigger mechanism for the utterances was still operative.
[40] In my view, this test is easily met in this case, in respect of all six utterances. From the first utterance to the last Williams was bleeding profusely, lying on the ground and unable to stand, feeling pain in his back and in his groin, able to speak but fading and becoming less responsive over time and, according to P.C. Partridge, panicked and seemingly with his primary focus and concern to be for his injuries. To me, it is impossible to imagine that Mr. Williams’ mind was not still dominated by the event when he made the utterances. The event that provided the trigger mechanism for the utterances dominated Williams’ mind and was still operative. Utterances need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent: Khan, at p. 207. Williams’ utterances were all made within no more than 25 minutes of his being shot. They were instinctive reactions to that event, giving no real opportunity for reasoned reflection.
[41] I conclude that the pressure of the event continued to exclude the possibility of concoction or distortion. It is inconceivable that Williams turned his mind to the fabrication of a false explanation of his injuries for some ulterior purpose. The fact that the utterances were made in answer to simple questions, the fact that Williams could not or would not name the shooter and the fact that he did not want Mulzac to call an ambulance in no way undermine my conclusion.
[42] Finally, I will address the fourth and fifth items in Lord Ackner’s guidelines: whether there are special features in this case that give rise to the possibility of concoction or distortion or the possibility of error. I see no special features that give rise to the possibility of concoction or distortion in the sense that Lord Ackner meant, such as a motive to fabricate or malice. I will address one issue relating to the possibility of error in the narration of utterance #3.
[43] In this instance, Mulzac testified at the preliminary inquiry that when he asked Williams who had “done this”, Williams replied, “the man driving the silver Benz wagon” (utterance #3). However, as I mentioned, he had not previously mentioned the shooter was the driver of the Benz, and in the video, it seems apparent to me that the shooter emerged from the rear driver side door. Since Williams had walked over to the Benz moments before the shooting and apparently spoke to someone through the driver’s side window, he obviously knew who the driver was. As a result, if Williams implied that the driver was the shooter, there is a very strong likelihood that he was in error. However, the much greater likelihood is that Mulzac was in error. None of the parties suggest that the driver was the shooter, and in any event, Mulzac can be cross-examined on the point and directed to the fact that he had not earlier mentioned the driver. If he retreats on this point, the problem will disappear. If he does not, the jury will be fully equipped to give the utterance the weight it deserves. The jury will not likely be misled. The jury must, of course, be properly instructed on these matters, as Lord Ackner also explains.
[44] As a result, I would not exclude utterance #3 on account of the likelihood that Mulzac was in error in referring to the driver as the shooter, subject to one additional wrinkle. The whereabouts of Mulzac are not currently known. If he cannot be located, the Crown will seek to have his preliminary inquiry evidence admitted pursuant to s. 715 of the Criminal Code. Before granting such an application, I will consider how to address the probable error in utterance #3.
[45] Accordingly, utterances #1 through #6 are admissible as spontaneous utterances.
Are the Deceased’s Utterances Admissible under the Principled Approach to Hearsay?
[46] In light of my conclusion about the dying declaration and spontaneous utterance exceptions to the hearsay rule, it is not necessary that I deal with this basis for admission. Out of an abundance of caution, I will do so briefly.
[47] The six utterances obviously satisfy the requirement of necessity in light of the death of Williams. As a result, I turn directly to consider reliability.
[48] For the same reasons that I concluded that the statements fell within the spontaneous utterance exception – the pressure of the event excluded the possibility of concoction or distortion – I also find that the circumstances provide sufficient support for the truth and accuracy of the statements to meet the reliability requirement of the principled approach to hearsay.
[49] The accused submits that there are no adequate substitutes to cross-examination of Williams under oath or affirmation at trial for testing the truth and accuracy of his utterances because:
• it cannot be ascertained from the video or any other witness who was in the car at the time Williams was shot;
• it is not obvious that Williams saw Guerra or even knew of Nelson or Lee; and
• there is no evidence of whom the person he referred to as the driver actually was.
As a result, there is no way of overcoming the specific dangers associated with these utterances relating to perception, memory, narrative, and sincerity.
[50] I say, with respect, that the significance of these matters that cannot be ascertained from the video or other witnesses is lost on me. Since Williams did not say who was in the car, and specifically who the driver was, the reliability of what he did say is not affected by these gaps in the evidence.
[51] Counsel for Nelson, in reply, referred me to para. 214 of the reasons of Iacobucci J. in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, for the majority, where he stated:
In some rare cases, it may also be possible under the particular circumstances of a case for evidence clearly falling within an otherwise valid exception nonetheless not to meet the principled approach's requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voir dire or otherwise) to determine admissibility under the principled approach's requirements of reasonable necessity and reliability.
[52] Counsel submitted that because of the possibility that Mulzac was in error about Williams saying that the driver of the Benz shot him, the reliability of this part of the utterance is in doubt, and that portion of the utterance should be excluded. This reflects a misunderstanding of what Iacobucci J. intended. This becomes clear upon review of para. 215 of his reasons, where he stated:
In this connection, it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability. Only the former is relevant to admissibility: see Hawkins, supra, at p. 1084. Again, it is not appropriate in the circumstances of this appeal to provide an exhaustive catalogue of the factors that may influence threshold reliability. However, our jurisprudence does provide some guidance on this subject. Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra; Smith, supra), or because there were safeguards in place such that a lie could be discovered (see Hawkins, supra; U. (F.J.), supra; B. (K.G.), supra). [Emphasis in original.]
[53] As Trotter J.A. noted in Nurse, at para. 92, “[T]he reliability concerns must be issues that go to threshold reliability, rather than weaknesses in the evidence that go to weight and can properly be assessed by the trier of fact in determining ultimate reliability.” In this case, any uncertainties about the accuracy of Mulzac’s assertion that Williams said that the driver of the Benz was the shooter, and indeed about the accuracy of the assertion that the driver was the shooter, can readily be assessed by the jury.
[54] Accordingly, utterances #1 through #6 are admissible under the principled approach to hearsay.
Probative Value versus Prejudicial Effect
[55] Finally, whether considered as a traditional exception or a principled approach exception to the hearsay rule, I must exclude any utterance made by Williams if its prejudicial effect outweighs its probative value.
[56] In this case, the probative value of the utterances is high, and I can see no prejudicial effect that will be suffered by the accused if the statements are admitted, other than the inherent one of being unable to cross-examine the declarant.
[57] The accused argues that the probative value of the statements is limited because there is other evidence that may support the inferences that the jury might draw from the utterances. While the latter may be true, it does not deprive the utterances of their probative value.
[58] As for prejudice, the accused points only to the fact that the identification of the driver as the shooter in utterance #3, in his words, is false. I have already explained why I do not see this as an impediment to admissibility.
Disposition
[59] The six utterances of Mr. Williams made shortly before his death are admissible in evidence.
M. Dambrot J.
Released: May 19, 2022
COURT FILE NO.: CR-21-30000-302
DATE: 20220519
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
REASONS FOR RULING
DAMBROT J.
RELEASED: May 19, 2022