By the time a trial judgment ends up in the Court of Appeal, there are often multiple, sometimes dozens, of grounds of appeals; others raise only a single ground. The very recent case from the Court of Appeal, delivered on February 9, 2018, R v Johnston 1 falls in between, listing five grounds where the appellant alleges errors made by the trial judge. This article will address the third ground, although much can be said about the other grounds, but not in this limited space. The third ground alleges the judge erred in admitting the complainant’s two statements as exceptions to the hearsay presumption of inadmissibility.
To provide context, a review of the facts is called for. The accused and the complainant lived together at the time of the assault. They had both been at a birthday party; both were drinking alcohol. When it was time to go, the complainant and her friend, Emma Miguez (Miguez) found out the accused had left before them with no notice or money or keys. They took a cab to the complainant’s home. They knocked on the door for a long time before the accused let the complainant in. Miguez stayed out but could hear them arguing. When she heard the complainant screaming and heard thumping sounds, she ran inside and found the complainant lying at the bottom of the stairs, with her face swollen and bloodied; her cheek piercing was torn and one of her teeth was missing.
Before leaving for the hospital by cab, the two women went upstairs. Miguez said she saw a broken nightstand and blood on the floor and stairs. Miguez called 911. The accused remained at the scene and the complainant wanted to stay with the accused to continue the argument. Miguez convinced her that it was not a good idea, so they took a cab to the hospital.
Two police officers responded to the 911 call and approached the accused, who exited from the home with his hands up and said, “I did it, I hit my girlfriend. She hit me, then I hit her.”2 The accused was arrested and removed from the home.
Meanwhile, one of the police officers called the complainant’s cell phone and learned they were on the way to the hospital. Officer Staples took a statement from the complainant at the hospital and a doctor treated her. Miguez testified that the complainant appeared upset, sad and confused but not angry. The case was working its way through the system on remand, but, unfortunately, the complainant committed suicide on October 23, 2014 before the trial.
Returning to the third ground of appeal, the appellant argued that the trial judge erred by admitting the complainant’s out of court hearsay statements.
There were two hearsay statements: first, the written statement of the complainant provided to Officer Staples at the hospital approximately three hours after the incident; and secondly, the complainant’s comment made to the other officer while the complainant was in the cab going to the hospital. The gist of the comment was recorded within one hour after the incident.
The Court of Appeal noted that:
“previously, hearsay evidence (information offered for the truth of its contents, but not given by a witness on the stand inside a courtroom) was presumptively inadmissible unless it fell within certain narrowly defined exceptions… In the last few decades, courts have abandoned this strict approach. Instead, courts have developed a more logical, functional approach… This more flexible approach is summarized in the Khelawon case relied on by the judge. She held that circumstantial guarantees of trustworthiness were present and threshold reliability was established on a balance of probabilities.”3
There appear to be two misleading comments in the cited paragraphs. First, the judge does mention that, “hearsay is presumed inadmissible unless it [falls] within certain narrowly defined exceptions. In the last few decades courts have abandoned this strict approach.” Doesn’t it sound like the “presumption of inadmissibility” is no longer relevant, since it is being abandoned in the “strict approach?” The court certainly doesn’t refer to this presumption of inadmissibility again for the rest of the decision.
The second misleading sentence is in found in the second quote: “This more flexible approach is summarized in the Khelawon case relied on by the judge. She held that sufficient circumstantial guarantees of trustworthiness were present and threshold reliability was established on a balance of probabilities.”4 Arguably the co-joining of the first two sentences creates some confusion. Who is “she”? It isn’t clear whether the “she” that was referred to was the trial judge in Johnston or the Supreme Court Justice in Khelawon. Both judgements were written by women (as well as the Court of Appeal’s judgement). One could argue that the reference to the Khelawon case leaves the impression that what was said in the next sentence described what happened in Khelawon.
But that was not the case; in fact, the opposite was true. The Supreme Court of Canada in Khelawon ruled that the hearsay was not admissible, notwithstanding the indicia of reliability in that case far exceeded those found in Johnston. But the only way a reader would discover this is by looking up and reading Khelawon itself.
In the Khelawon case, the complainant was a resident in a care home. One night, an employee allegedly came in the complainant’s room and hit him about the face and body with some implement – either a cane or a pipe. Another employee came in shortly after the assault and saw the complainant’s bruising on his eye and nose. She also saw some green garbage bags packed with the complainant’s possessions. The complainant described what had happened to him, and that the other employee, the accused, had threatened him that if he hadn’t moved out of the home by noon, he would come back and kill him. The complainant moved to the employee’s daughter’s home until the employee’s shift was over, then the complaint moved to her residence.
The complainant went to the doctor’s office a few days later because he was experiencing great pain. He was examined and the doctor diagnosed him as having three fractured ribs.The next day, the complainant attended the police station and provided a videotaped interview with two officers. Although the complainant was not sworn, the officers cautioned him that “it was very important that he tell the truth and that if he did not tell the truth [he] could be charged with that.”6 Unfortunately the complainant died before Khelawon’s trial.
At the conclusion of Khelawon’s trial, the trial judge admitted the video statement and convicted the accused. However, the Court of Appeal allowed the accused’s appeal and ruled that the complainant’s videotape was inadmissible. The Supreme Court dismissed the appeal.
With the indicia of reliability demonstrated in Khelawon’s case and the Supreme Court’s ultimate conclusion, it is perhaps surprising that the Court of Appeal in Johnston concluded that the complainant’s hearsay comments were found to be admissible, for the following reasons:
First, the complainant’s statement to the police officer at the hospital didn’t qualify as admissible since the officer wrote only the “gist”5 of what the complainant in Johnston described, with the exception of five follow up questions. The officer indicated to the complainant to sign the bottom of the statement, which ostensibly confirmed that she read the statement and that it was correct. Of course, without the benefit of cross-examination, we won’t ever know whether the complainant actually read the statement and whether it was the truth. We know that at least part of the statement was untrue because she didn’t say anything about hitting the accused.
Secondly, the Court stated the physical evidence found at the house – blood and clumps of hair, broken furniture in the bedroom – confirmed the reliability of her statements. But isn’t that a circular argument? The only way to understand the condition of the house is to look at the complainant’s statement, which describes the condition of the house. The evidence at the house doesn’t corroborate the complainant’s statement. Certainly, alternative explanations could be explored through cross-examination. The Court went on to say, “the alternative possibility put forward by the accused, that of the complainant falling down the stairs, does not accord at all with the evidence listed above.”6 But arguably it may. Miguez was standing outside of the house when she heard loud thumping noises and the bloody complainant lying at the bottom of the stairs.7 Surely that it is also consistent with the accused version. It is at least fodder for cross examination.
The accused, by his comments, raised the issue of self-defence. When the police arrived at the residence, the accused admitted, “I did it. I hit my girlfriend. She hit me. Then I hit her.”8 It was apparent that the accused had injuries including bloody knuckles on his right hand, a swollen and bruised left cheekbone, a bloody mouth and bruises and swelling of his right foot.9 Who caused theses injuries? Whose blood was found in the residence? They were both bleeding. What evidence is there that the night table wasn’t already broken or was broken when the complainant struck the accused? Maybe all of the evidence confirms what the complainant said, but can we say for sure, in the absence of cross examination and in the face of presumption of inadmissibility?
The Court of Appeal admitted the complainant’s statement at the hospital saying: “With respect to reliability, if a statement is made where there are sufficient circumstantial guarantees of trustworthiness that substantially negate the possibility that there was being untruthful or mistaken, that hearsay evidence will generally be reliable on a threshold basis and will then be admissible for consideration in the trial.”10
Such a finding is flawed in two ways: first, other than referring to the circular statement, the Court doesn’t particularize any other “sufficient circumstantial guarantees of trustworthiness.” Secondly, the statement “that hearsay evidence will generally to be reliable on a threshold basis” flies in the face that hearsay is presumptively inadmissible.
The accused’s counsel argued that the judge did not have the advantage of the recent Supreme Court case, in R v Bradshaw.11 The Court of Appeal noted that the Bradshaw case reaffirmed basic principles of Khelawon, but it was narrower in focus than Khelawon; the Bradshaw case focussed on the role of the corroborative evidence in evaluating threshold reliability. Although the judge ruling in the Court of Appeal distinguished between the two cases, he said “I believe that had the judge had the benefit of the decision in Bradshaw, her assessment would be correct under its analysis as well.”12
This author suggests that the Bradshaw case is right on point. The Supreme Court held in Bradshaw that the party seeking to rely on hearsay evidence must prove the procedural reliability threshold, which relates to substitutions for testing the evidence where there is no chance of cross examination. For example, adequate substitutions exist if the statement is videotaped, and there is the presence of an oath or a warning about the consequences of lying. Of course, none of these factors exist in Bradshaw (or in the present case).
The Court in Bradshaw continues:
“Hearsay is an out of court statement tendered for the truth of its contents. Because hearsay is declared out of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant’s demeanour as she makes the statement, and hearsay is not tested through cross-examination … Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial’s truth–seeking process. The hearsay statement may be inaccurately recorded and the trier of fact cannot easily investigate the declarant’s perception, memory or sincerity.”
Given the dangers that hearsay evidence presents, “the fear is that untested hearsay evidence may be afforded more weight that it deserves … Therefore, while all relevant evidence is generally admissible, hearsay is presumptively inadmissible.”13
Referring to its own cases of Smith14 and Khelawon, the Court stated that when any hearsay statement is “so reliable that it is unlikely to change under cross-examination … when there is no real concern about whether the statement is true or not because of the circumstances in which it came about, the only likely explanation is that the statement is true.”15
In the end, the Bradshaw trial judge considered the “so–called corroborative evidence,” which was described as an accurate description of the murders and the weather on the night, but rejected the hearsay because the corroborative details were equally consistent with the declarant lying about the details. Because of this, the hearsay against Bradshaw was ruled inadmissible.
Given examples of untrustworthiness of the complainant’s statement, the lack of any recording of her statement and without an oath or caution, her anger towards the accused – demonstrated by her hitting the accused multiple times, and saying that she wanted to stay to continue arguing with the accused, which gave her a motive to fabricate a story – the presence of alternative explanations as to the condition to the house in which blood and hair were found, and the precedents of Khelawon and Bradshaw, it is somewhat surprising that the court affirmed the trial court’s ruling that the complainant’s “statements” were admissible, and thus impermeable to cross examination.
The reader will note that I have not yet addressed the complainant’s comments to the officer on her cell phone on the way to the hospital. The officer did not record her comments verbatim, but testified to his impression of the call: “She was crying, she sounded like she was in a state of disbelief. She was upset. She was telling me that [the accused] … had hit her … she was upset. She said [the accused] had kicked her in the face and she was on the way to the Victoria Hospital.”16
It is remarkable that the Court of Appeal ruled the complainant’s comment was a res geste utterance, thus finding the comment was made contemporaneously. The court cited R v Head,17 but in that case the comment was made within a minute of the murder; in the present case the time was within an hour. It is hard to see how the court could describe the comment as spontaneous.
Typically a res geste comment is uttered spontaneously, but the trial judge said that while the “temporal connection” is important, “I am satisfied that [the comment] was made while [the complainant] was operating under the stress of excitement caused by the alleged circumstances at the residence on the morning in issue … The admissibility of the declaration is assessed not simply by mechanical reference but rather in the context of all of the circumstances obtaining [sic] at the time, including those which tell against the possibility of concoction or distortion.”18
But surely this doesn’t apply in the facts of this case. Besides, the comment was not being made spontaneously, so the hour gave the complainant ample time to concoct or distort. And we know this with certainty because the complainant obviously had the time to concoct a story that left out that she hit the accused.
It is my view that accepting both the statement at the hospital and the comment in the cab represents significant error. It will be very unfortunate if this case becomes a precedent in cases to come.
1 R v Johnston 2018 MBCA 8.
2 Ibid at para 7.
3 Supra note 1 at paras 91-3.
4 Ibid at para 93.
5 R v Johnston 2016 MBQB 167 at para 10
6 Supra note 1 at para 109
7 Ibid at para 5
8 Ibid at para 7.
9 Supra note 7 at para 9.
10 Supra note 1 at para 91.
11 R v Bradshaw 2017 SCC 35.
12 Supra note 1 at para 116.
13 Supra note 13 at para 20.
14 R v Smith  2 SCR 915.
15 Supra note 14 at para 31.
16 Ibid note 1 at para 117.
17 R v Head 2014 MB 59.
18 Ibid note 17 para 52.