COURT FILE NO.: CR-18-00004463-0000

DATE: 02/03/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Tyler Magda

T. Shuster, counsel for the Crown

E. Mullings-Burton, counsel for the Accused

G.B. Gambacorta J.:

Reasons for Decision on the Admissibility of the Prior Consistent Statements of the Complainants

Overview

[1] Mr. Magda stands charged with two sets of charges with respect to the complainant Tonya Hann and one set of charges with respect to the complainant Marissa Pietracupa.

[2] The Applicant Crown seeks rulings on the admissibility of prior consistent statements alleged to have been made by each of the two (2) complainants in this case.

[3] In relation to Tonya Hann, the Crown originally sought rulings on the admissibility of seven (7) categories of prior consistent statements. Over the course of argument, the Crown and defence narrowed the scope of the application by agreement, and hence, I need only rule on three (3) of them. They are:

i. Utterances of Tonya Hann and observations of Tonya Hann’s emotional and physical state as observed by Robert Royer and Tracey Dortono;

ii. 911 call by Robert Royer;

iii. Statement by Tonya Hann to P.C Dustin Bianchin.

[4] In relation to Marissa Pietracupa, similarly, and as a result of admissions or agreement between the parties, the original application has been narrowed and the Crown seeks a ruling on the admissibility of two (2) categories of prior consistent statements made by Ms. Pietracupa. They are:

i. Utterances and statements to Ken Dandenault and observations of her physical and emotional state;

ii. Statements to Detective Constable Erin Maclean.

I will attempt to deal with these applications by complainant and category.

Tonya Hann

Are the utterances made by Tonya Hann to Robert Royer and Tracey Dortono admissible under the res gestae/spontaneous utterance exception of the hearsay rule?

[5] The Crown seeks to introduce the utterances made by Tonya Hann to Robert Royer and Tracey Dortono for their truth pursuant to the res gestae or spontaneous and excited utterances exception to the hearsay rule.

[6] The defence is opposed to the admission of the utterances allegedly made by Tonya Hann on the basis that they are not res gestae or spontaneous utterances, they were recorded late and there is uncertainty or disagreement among the people who allegedly overheard them.

[7] The utterances made by Tonya Hann to Robert Royer and Tracey Dortono are alleged to have been made at 1:00 a.m., contemporaneous with Tonya Hann fleeing from an event which is alleged to have taken place some minutes before. At the time of the alleged utterances, Ms. Hann is described as being mostly naked, but for a sweater, and is said to have been in emotional distress.

[8] For a statement or utterance to be admissible for the truth of its contents under this exception to the hearsay rule, the statement must relate to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition. This stress of excitement discounts the possibility of concoction and lends support to the rationale for admitting the statement for the truth of its contents. See: R. v. Klippenstein (1981), 1981 ABCA 14, 26 AR 568 at para.17, 1981 ABCA 14, 57 CCC (2d) 393 (Alta CA).; R. v. Clark (1983), 1983 1805 (ON CA), 42 OR (2d) 609 at 623, 7 CCC (3d) 46 (Ont CA).; R. v. Slugoski (1985), 1985 631 (BC CA), 17 CCC (3d) 212 at 227, 43 CR (3d) 369 (BCCA).

[9] Further, while exact contemporaneity is not required, the statement should be reasonably contemporaneous with the alleged occurrence to avoid the prospect of fabrication. See: Clark, supra at 623; R. v. Khan (1988), 1988 7106 (ON CA), 42 CCC (3d) 197, 27 OAC 142 at para. 25, (Ont. CA).; R. v. Sylvain, 2014 ABCA 153, [2014] AJ No. 444 at para. 31.

[10] The traditional spontaneous or excited utterance exception to the hearsay rule at common law is also consistent with the principled approach to hearsay adopted by the Supreme Court of Canada. Here, reliability comes from the absence of an opportunity to concoct, and the necessity component is dispensed with predicated on the pursuit of ‘best evidence’.

[11] Applying these principles to the evidence the Crown seeks to admit (Crown factum para. 60), I find the statements made by Tonya Hann to Robert Royer and Tracey Dortono meet the criteria for admissibility in that they are alleged to have been made spontaneously and contemporaneously with the event and while it was still unfolding and under the stress of excitement caused by the event. This finding is supported by Tonya Hann’s state; naked on a public roadway at 1:00 a.m., crying, upset and shaking at the time the statements were made.

[12] Further, I find that the time lapse in the disclosure of the spontaneous utterances by the civilian witnesses, and any differences in recollections as to what the complainant said, goes to the weight to be attached to the statements and not to the admissibility of the statements. See: R. v. Nurse, 2019 ONCA 260 at para. 86. Further yet, spontaneity is assessed as of when the statements/utterances were made by the declarant, and not when reported by the recipient.

[13] In the result, I find that the statements fall within the traditional exception to the hearsay rule, res gestae and spontaneous or excited utterances, and can be admitted for the truth of their contents. They are relevant to the time and place of the events, the emotional and physical state of the complainant and to consent.

Are the observations of Tonya Hann’s emotional and physical state admissible as circumstantial evidence relevant to the time and place of events, her physical and emotional state, and consent?

[14] The Crown seeks to introduce the observations of Tonya Hann’s emotional and physical state and gestures as observed by witnesses Robert Royer and Tracey Dortono for their truth as circumstantial evidence relevant to the time and place of the events, the physical and emotional state of the complainant and consent.

[15] The defence takes the position that any observations of Ms. Hann’s emotional or physical state should only be admitted for the purpose of establishing the physical and emotional state of the complainant and nothing further.

[16] The demeanour and actions of Tonya Hann as observed by Robert Royer and Tracey Dortono can be described as non-assertive conduct from which the trier of fact is asked to infer a statement based on the declarant’s belief. See: R. v. Badgerow, 2014 ONCA 272 at paras. 106-135.; R. v .Nurse, 2019 ONCA 260 at paras. 52-65. While I am not being asked to consider the possibility of a hearsay analysis here, and the parties agree the evidence is admissible demeanour evidence, they disagree on the use to which it can be put.

[17] While there is no requirement for corroboration in sexual assault cases, post-event demeanour or conduct of a sexual assault complainant is circumstantial evidence capable of supporting a complainant’s version of events. See: R. v. AHM, 2018 ONCA 503. Therefore, not only can any observations of Ms. Hann’s emotional or physical state be admitted for the purpose of establishing her physical and emotional state at the time, but they may also be used as circumstantial evidence relevant to time and place of the events and her state of mind or consent. See: R. v. Edgar, 2010 ONCA 529, 260 CCC (3d) 1.

Is the 911 call made by Robert Royer admissible for the truth of its contents under the res gestae exception to the hearsay rule?

[18] The Crown contends that the 911 call made by Robert Royer should be admitted for the truth of its contents under the res gestae exception to the rule against prior consistent statements. In support, the Crown argues it has probative value and is relevant to the time and place of the events, sequence of events and the emotional state of those involved.

[19] The defence opposes the admission of the 911 call and its characterization as evidence admissible under the res gestae exception. In support, the defence submits the 911 call was not made by the complainant and was made thirty minutes to one hour after the alleged event transpired.

[20] The making of a 911 call does not necessarily bring the call within the excited utterances exception. In conducting the hearsay analysis, the court must assess all of the relevant evidence related to the call and determine if it properly falls within the excited utterances or res gestae exceptions.

[21] Here, Mr. Royer is said to have made the call immediately after he and Tracey Dortono pulled over and picked up complainant Tonya Hann, who can be heard on the call, and while they were travelling towards a Tim Horton’s location. They were the first people to come upon the partially-clad Tonya Hann and made the call while she was still obviously under the stress and pressure of the alleged event. I agree with the Crown, that the event was still unfolding at the time of the call, and I find that this evidence, uttered in the pressure of the moment, bears its own stamp of reliability. This is arguably the best evidence available as I cannot see how in-court testimony, not uttered in the pressure of the moment, could displace it. Therefore, I find the 911 call qualifies as res gestae and is admissible as an exception to the hearsay rule for the truth of its contents. The 911 call evidence may be relevant to the time and place of the events, the sequence of events, the emotional or physical state of the people involved or heard on the call.

[22] Further, and despite this exception to the hearsay rule not possessing a necessity requirement, Mr. Royer, the caller, and Ms. Hann who can be heard on the call, will be available to testify at trial negating any objection to admission of the hearsay statement arising from the absence of an opportunity to cross-examine them.

Is the statement made by Tonya Hann to Police Constable Dustin Bianchin admissible to rebut inconsistencies in her evidence should they arise in cross-examination? Does any part of this statement fall within any category of exception to the rule against prior consistent statements?

[23] The parties agree that the rule against prior consistent statements prevents the Crown from leading evidence of a victim’s consistent statement on the basis that there is no value in repetition. However, if in cross-examination the defence points out inconsistencies in Ms. Hann’s statement in comparison to her trial evidence, the Crown may introduce this evidence as a point of consistency on essential aspects of the allegations relevant to credibility and reliability. Therefore, no ruling on this issue is required.

[24] Like other exclusionary rules, prior consistent statement rules have exceptions. The exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing on a previous occasion. See: R. v .T. (W.P.) (1993), 1993 3427 (ONCA), 83 CCC (3d) 5 (Ont. C.A.), at para. 36. These statements admitted by exception are generally admissible for a limited or restricted purpose and are accompanied by limiting instructions when presented to a jury.

[25] Here, the Crown seeks to lead portions of Tonya Hann’s statement to P.C. Bianchin under the exceptions of circumstantial evidence, narrative, and prior identification evidence. The defence does not take issue with the Crown leading evidence of the observations made by P.C. Bianchin of Tonya Hann’s demeanour (emotional and physical state) at the time of their interaction. I agree that this evidence would properly constitute circumstantial evidence available to the jury to weigh in the balance. Further, the defence does not oppose the Crown leading as narrative evidence that the complainant declined to provide a police statement or participate in a physical examination. I agree that within limits, prior consistent statements may be admitted into evidence as necessary to unfold the “narrative” of a case and make material events comprehensible to the decision-maker, here, the jury, or to provide “chronological cohesion” to the case. See: R. v. M.C., 2014 ONCA 611 at para. 64.

[26] I agree with the Crown’s position that the statements made by Ms. Hann to P.C. Bianchin concerning the identification of the assailant, the assailant’s vehicle and the location of the alleged assault properly fit within the recognized prior identification exception to the rule excluding prior consistent statements and complies with the fundamental principles which govern the admissibility of evidence in criminal trials. See: R. v. Khan, 2017 ONCA 114 at paras. 57-61. These prior statements can be used to show a witness’s prior identification of an accused. The statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made unless it is adopted by the identifying witness at trial. The evidence of a prior identification forms part of the identification process as a whole and is admissible to assist the trier of fact in assessing the quality of any in court identification and the weight to be assigned to the identifying witnesses testimony. See: R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144.; R. v. Johnson, [2013] OJ No. 518.; R. v. Tat, [1977] OJ No. 3579 (CA) at para. 37-41. It is a form of past recollection recorded. In the result, both Tonya Hann and P.C. Bianchin are permitted to testify to the prior identification evidence, the assailants vehicle, and the location of the alleged assault.

Marissa Pietracupa

Are the utterances made by Marissa Pietracupa to Ken Dandenault admissible under the res gestae/spontaneous or excited utterance exception of the hearsay rule? If not, do they fall under the narrative exception to the general exclusionary rule for prior consistent statements?

[27] The Crown seeks direction from the court as to whether the utterances made by Marissa Pietracupa to Ken Dandenault can properly be considered ‘spontaneous’ within the definition of the designated exception, in the circumstances of this case, and if so, seeks to introduce them as such. In the alternative, the Crown seeks to introduce them under the narrative exception to assist the trier of fact with the chronological cohesion of the case.

[28] The defence opposes the Crown’s application under the spontaneous utterance exception but concedes that the Crown may lead general parts of the evidence as narrative to assist with the unfolding of events, exclusive of the specific post-event utterances allegedly made by the complainant.

[29] The contemporaneity component of the spontaneous or excited utterance exception to the hearsay analysis is what is at issue. Marissa Pietracupa describes awakening from an undefined period of unconsciousness following the event in question. She cannot indicate how long she was unconscious, and describes coming into consciousness and noticing her shorts around her one ankle, wearing her top, but missing her shoes and all of her property which was left in the vehicle. She describes being cold, terrified, disorientated, and stunned. She describes noticing a vehicle at a construction place across the street from where she came into consciousness and going there to ask for help. Once there, she made utterances and pounded on the door for help. A man opened the door, let her in and wanted to call police which she declined. She describes herself as being in survival mode.

[30] The other side of that interaction is described by the man who opened the door; Ken Dandenault, a float driver of heavy equipment who works at the Steed and Evans yard. He describes hearing frantic banging on the door by a female who was crying and who appeared to be dragged by a car with gravel embedded in her hip and shoulder screaming for help. She did not want the police called but was looking for help. He describes her making various utterances including one that she was partying all night with two guys by Lock 7. He describes her as ‘blubbering a lot’, hard to understand, and crying the entire time. He describes the location of Lock 7 to be a three-to-five-minute walk down the road from the yard he works at.

[31] To fall within the spontaneous or excited utterance exception of the hearsay rule and to be admissible for the truth of their contents, the statements should be reasonably contemporaneous with the alleged occurrence to avoid the prospect of fabrication. The statements must relate to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition to discount the possibility of concoction. Here, there is no estimate available to describe the duration of unconsciousness of the declarant or the time that has elapsed from the startling event. Whether it was of short or long duration is irrelevant, as I find the opportunity to concoct did not exist. I find the period of unconsciousness to have stopped the clock or to be a neutral factor and not one which would affect the assessment of contemporaneity. An assessment of all the relevant evidence, including but not limited; to the condition of the declarant as described by the witness, with 6-10 fair pieces of gravel in her hip, crying and disheveled, further supports the declarations having been made contemporaneously with the declarant regaining conscious after the startling event, or under the stress of excitement caused by it. The context here suggests that the declarant awoke, startled at the realization and under the stress of the event and condition she found herself in, and made the declarations within minutes of that realization. Therefore, I find that the utterances made by Marissa Pietracupa to Ken Dandenault are admissible as spontaneous or excited utterances and can be advanced for the truth of their contents to assist the trier of fact in evaluating the correlative in-court testimony.

Are the observations of Marissa Pietracupa’s emotional and physical state admissible as circumstantial evidence relevant to the time and place of events, her physical and emotional state, and consent?

[32] The Crown seeks to introduce the observations of Marissa Pietracupa’s emotional and physical demeanour and actions or gestures as observed by witness Ken Dandenault for their truth as circumstantial evidence relevant to the time and place of the events, the physical and emotional state of the complainant and consent.

[33] While the defence does not oppose the admissibility of this evidence, I believe that here too, the defence position is that any observations of Ms. Pietracupa’s emotion or physical state should only be admitted for the purpose of establishing the physical and emotional state and actions or gestures of the complainant and nothing further.

[34] For the reasons set out above and related to my analysis of the post-event demeanour evidence of Tanya Hann, I find this evidence is admissible for its truth as circumstantial evidence of Marissa Pietracupa’s physical and emotional state at the time she was observed by Ken Dandenault, and as circumstantial evidence relevant to the time and place of the alleged events and her state of mind or consent.

Are the statements made by Marissa Pietracupa to Detective Constable E. Maclean admissible under the narrative exception to the rule against prior consistent statements to explain the sequence of events?

[35] The Crown seeks a ruling as to the admissibility of selective portions of the statement given by Marissa Pietracupa to D.C. Erin Maclean under the narrative exception to the general exclusionary rule for prior consistent statements. In support the Crown contends the evidence is necessary to give the trier of fact an explanation as to discovery, the sequence of events and further police involvement.

[36] The defence does not object to narrative portions as to the sequence of the investigation but contends that specific utterances made by the complainant therein neither qualify as narrative nor assist with an explanation as to the chronology of events. Further, the defence argues the photographs taken by D.C. Maclean can be lead through the complainant herself.

[37] The statements made by Marissa Pietracupa to D.C. Maclean are prior consistent statements which are presumptively inadmissible. I agree with the defence position that the specifics of the complaints made to D.C. Maclean, in the circumstances in which they were received, are not necessary to introduce the details of the complaint and the subsequent steps taken as a result. However, I do find that the evidence of how, when, where and that a complaint (exclusive of the details) was made to D.C. Maclean by Marissa Pietracupa is admissible within the narrative exception to explain the sequence of events in the investigation. So too are the observations made and photographed and steps taken by the detective thereafter. As noted earlier, if the defence in cross-examination challenges the complainant’s testimony on the basis of inconsistencies between her evidence at trial and her prior statements, then points of consistency on essential aspects of the allegations, including those contained in her statement to D.C. Maclean, can become relevant to an assessment of her credibility and reliability.

Comments on the statement made by Marissa Pietracupa to Detective Constable Southcott and the use of any prior identification evidence.

[38] The Crown has withdrawn their application for a ruling on the admissibility of aspects of the formal statement made by this complainant to D.C. Southcott, pursuant to an admission of identity by the accused. The Crown takes the position that the parties can achieve an agreed statement of fact as to the relevant aspect of narrative evidence or prior identification evidence it would have sought to adduce. For clarity to both parties in the event of any doubt, the statements made by Ms. Pietracupa to D.C. Southcott concerning the identification of the assailant, the assailant’s vehicle and its contents, would properly fit within the recognized prior identification exception to the rule excluding prior consistent statements and could properly form part of any agreed statement of fact in that regard pursuant to my reasons at paragraph 26 of this decision. As a result, Marissa Pietracupa would also be permitted to testify to the prior identification evidence of the assailant, the assailant’s vehicle and its contents.

________________________________ G. B. Gambacorta J.

DATE: February 3, 2023