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Decision information:
Abstract: Transcript of the Oral Ruling on Admissibility of Evidence
Decision Content
R. v. Courouble, 2012 NWTSC 8 S-1-CR-2010-000155
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TYLER CHARLES COUROUBLE
__________________________________________________________
Transcript of the oral ruling on admissibility of evidence,
delivered by The Honourable Justice L. A. Charbonneau,
sitting in Yellowknife, in the Northwest Territories, on
the 12th day of January, A.D. 2012.
__________________________________________________________
APPEARANCES:
Mr. A. Godfrey and
Mr. B. MacPherson: Counsel for the Crown
Mr. T. Boyd: Counsel for the Accused
(Charge under s. 271 and 266 of the Criminal Code of Canada)
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1 THE COURT: During the course of this
2 trial, the Crown sought a voir dire to determine
3 the admissibility of evidence of an utterance
4 allegedly made by the complainant, Karen Lander,
5 and heard by her adult son, Blake Hickling. I
6 concluded that the evidence was admissible, and I
7 said I would put my reasons on the record later
8 during the trial so as not to hold off the
9 continuation of the proceedings before the jury
10 at that time. These are my reasons.
11 The charges that the accused faces are
12 sexual assault and assault. The complainant's
13 trial testimony was applied by consent to the
14 voir dire, as were two exhibits that had already
15 been filed in the trial at that point, namely
16 Exhibit 1 (two photos taken on May 18th showing
17 bruising and swelling to an area near the
18 complainant's left eye) and Exhibit 2, which sets
19 out the results of forensic testing confirming
20 the presence of the accused's DNA on the
21 complainant's underwear and on a vaginal swab.
22 At the trial, the complainant testified that
23 she consumed alcohol on the night in question and
24 had a blackout from sometime in the early morning
25 hours when she was still at the Ravens' Pub. Her
26 next memory is being on a couch in her apartment
27 with her son Blake having pulled the accused off
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1 of her. She has no recollection of either the
2 sexual assault or the assault. In fact, she has
3 no recollection of meeting the accused at all
4 that evening, and, before this night, she had
5 never met him.
6 The evidence which was the subject of the
7 voir dire is the evidence of her son Blake
8 Hickling. He was sleeping in his room in the
9 apartment where the incident is alleged to have
10 happened. His evidence was that he woke up at
11 some point and heard two things. He was not
12 certain in what order these things happened, but
13 he said they happened very close to one another.
14 One was what he described as a "smacking noise",
15 the sound of someone being hit. The other was
16 his mother's voice saying, "Stop. You are not
17 doing that." That is the utterance the Crown
18 wanted to adduce in front of the jury.
19 Mr. Hickling testified at the voir dire that
20 after hearing this, he went to the living room
21 and found the accused on top of his mother on one
22 of the couches in the living room. Their
23 pelvises were close together and it appeared they
24 were having sex.
25 The Crown wanted to adduce this utterance
26 that Mr. Hickling heard for the truth of its
27 contents, as evidence the complainant was not
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1 consenting to what the accused was doing at the
2 time. The Crown argued that the evidence was
3 admissible because it falls under one of the
4 traditional exceptions to the inadmissibility of
5 hearsay, the res gestae or "spontaneous
6 utterance" exception. The Crown also argued that
7 this evidence met the requirements for
8 admissibility under the principled exception to
9 the inadmissibility of hearsay as elaborated by
10 the Supreme Court of Canada. Defence took the
11 position that the evidence was not admissible,
12 and defence's submission on both the res gestae
13 and principled exception areas centred on the
14 issue of reliability of the evidence.
15 The first question, of course, is whether
16 the evidence is, in fact, hearsay. If it is not,
17 then it is not presumptively inadmissible. One
18 fundamental aspect that defines hearsay is the
19 purpose for which the evidence is being adduced.
20 Evidence that is simply adduced to show the
21 utterance was made is not hearsay. Evidence of
22 what someone heard that is adduced to explain the
23 actions of that person (in this case, for
24 example, explain why Blake got up and went to
25 check what was happening in the living room) is
26 also not hearsay. So for those purposes, in my
27 view, this evidence would be clearly admissible
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1 without any consideration needing to be given to
2 either the traditional exceptions or the
3 principled approach because those purposes are
4 not hearsay purposes. But to the extent that the
5 Crown wanted to use this utterance as proof of
6 its contents and argue that it is an expression
7 of lack of consent on the part of Ms. Lander,
8 then the analysis is required.
9 First, with respect to the traditional
10 exception, it is important to note that as the
11 Supreme Court developed the principled approach
12 with respect to the admissibility of hearsay,
13 there evidently was a need to address how the
14 traditional exceptions fit within this new
15 regime. The answer was provided in the case of
16 R. v. Mapara, [2005] 1 S.C.R. 23, at para. 15, at
17 page 42, which I will quote from. The Supreme
18 Court summarized the state of law in the
19 following way:
20 "(a) Hearsay evidence is
21 presumptively inadmissible unless
22 it falls under an exception to the
23 hearsay rule. The traditional
24 exceptions to the hearsay rule
25 remain presumptively in place.
26 (b) A hearsay exception can be
27 challenged to determine whether it
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1 is supported by indicia of
2 necessity and reliability,
3 required by the principled
4 approach. The exception can be
5 modified as necessary to bring it
6 into compliance.
7 (c) In 'rare cases', evidence
8 falling within an existing
9 exception may be excluded because
10 the indicia of necessity and
11 reliability are lacking in the
12 particular circumstances of the
13 case.
14 (d) If hearsay evidence does not
15 fall under a hearsay exception, it
16 may still be admitted if indicia
17 of reliability and necessity are
18 established on a voir dire."
19 So res gestae, as an exception to the
20 inadmissibility of hearsay, is still
21 presumptively in place. Counsel did not refer me
22 to any case where it has been found that this
23 exception had been successfully challenged as not
24 being supported by the indicia of necessity and
25 reliability required under the principled
26 approach, and, in my view, that exception is
27 still a valid one. Really, all of its components
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1 mirror very much the concerns that are addressed
2 through the principled approach.
3 The exception itself was not challenged in
4 this case because defence counsel's submissions
5 really were focused on reliability, and defence's
6 position was that this evidence did not fit
7 within the res gestae exception.
8 This court some time ago examined whether
9 evidence was admissible under the res gestae
10 exception in the case of R. v. Oliver [1996]
11 N.W.T.J. No. 69. In that case the Court
12 identified some of the considerations that apply
13 in deciding whether a statement should be
14 admitted under this rule. I am not going to
15 quote from the case, but, by way of summary, my
16 understanding of it is that the considerations
17 include the possibility of concoction or
18 distortion either by the declarant or by the
19 person who testifies about the utterance.
20 Another consideration is the question of whether
21 a startling or dramatic event dominated the
22 thoughts of the declarant in such a way that the
23 declarant did not have any real opportunity for
24 reasoned reflection. This is where
25 contemporaneity of the utterance in relation to
26 the events is important. Also, whether the
27 utterance was made spontaneously in response to
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1 the event or was the result of questions being
2 asked of the declarant. And, finally, the
3 reliability of the evidence with respect to the
4 accuracy of the words spoken and reliability
5 generally, although it was recognized that unless
6 there are special features of concern, the issue
7 of reliability is a matter better left to the
8 trier of fact.
9 Here, the utterance is alleged to have been
10 made at the time of the incident, at a time where
11 the complainant would not have even known that it
12 might be overheard. It was also made, allegedly,
13 close in time to when she was struck. In my
14 view, this makes it both as spontaneous as could
15 be and as contemporaneous as could be. The risk
16 of concoction is minimal under those
17 circumstances.
18 The concerns raised by defence, and that
19 arise on the evidence, have to do with
20 reliability. In dealing with that issue, I have
21 considered the evidence about the layout of the
22 apartment, showed him the drawing made by the
23 witness which was first marked as Exhibit "A" on
24 the voir dire and then made a full exhibit in the
25 trial. I have considered the evidence that there
26 were no other noises in the house, that the
27 witness had consumed some alcohol that evening,
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1 but that his evidence was that he was not feeling
2 the effects of alcohol when he went to bed. I
3 have considered that Mr. Hickling is the son of
4 the declarant, which is a factor that could have
5 a bearing on reliability; but it was not
6 suggested to him on cross-examination that he was
7 fabricating this evidence to assist his mother
8 somehow. So the connection is a factor on
9 reliability, but, in my view, it remains one for
10 the trier of facts to assess.
11 The other issue on reliability is the
12 evidence that Mr. Hickling gave a statement to
13 the police and testified at the preliminary
14 hearing and at those times reported having heard
15 different words. To the police, he said what he
16 heard was "get off and get out", and at the
17 preliminary hearing, his evidence was that all he
18 remembered hearing was "stop". Defence argued
19 that this presented a serious problem on the
20 question of reliability, and argues that this is
21 one of the big distinctions between this case and
22 the Oliver case because, in Oliver, the
23 conversation had been recorded, so there was a
24 clear record of it.
25 Looking at the factors as a whole, I
26 conclude that this evidence, for the reasons I
27 have given, is admissible as res gestae and that
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1 any concerns about the accuracy of what the
2 witness reported hearing and the other factors
3 that go to reliability are matters properly left
4 with the trier of facts. If I am wrong in my
5 analysis, either in concluding that the
6 res gestae exception should still stand or in
7 concluding that the evidence in this case meets
8 the requirement for admissibility under that
9 exception, I would have concluded, in any event,
10 that the evidence is also admissible under the
11 principled approach, and it obviously flows from
12 that that I do not think this is a rare case or
13 evidence falling within a recognized exception
14 should still be excluded because it fails to meet
15 the requirements of the principled approach.
16 Necessity here is established because the
17 declarant, Ms. Lander, has no recollection of
18 what happened before Mr. Hickling was in the
19 living room. So there is no other way that the
20 Crown can adduce evidence of this utterance.
21 Reliability is the second factor, and at the
22 stage of deciding whether the evidence is
23 admissible or not, what the Court is concerned
24 with is threshold reliability, not ultimate
25 reliability, which is to be left to the trier of
26 facts.
27 In the case of R. v. Khelawon, [2006]
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1 2 S.C.R. 787, the Supreme Court clarified how this
2 analysis must be conducted and modified the
3 approach from its earlier pronouncement in R. v.
4 Starr, [2000] 2 S.C.R. 144, the Court said that
5 all relevant factors should be considered when
6 determining threshold reliability, including,
7 where appropriate, the presence or absence of
8 supporting evidence. The approach must be
9 functional, focused on the particular dangers of
10 the proposed evidence as well as the attributes
11 and circumstances relied upon by the party
12 seeking to adduce the evidence to overcome those
13 dangers.
14 The comments that I have already made about
15 the aspects of the evidence that are relevant to
16 reliability when I was dealing with my analysis
17 of the res gestae principles applies to the
18 analysis of the threshold reliability
19 requirement.
20 I conclude that the evidence is sufficiently
21 reliable to be weighed by the jury because of
22 following reasons:
23 First, because of the spontaneous nature of
24 the utterance and the lack of opportunity for
25 concoct. Next, because the declarant had no way
26 of knowing her utterance would be heard. Next,
27 because of the evidence about the "smacking
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1 noise" right around the same time as the
2 utterance was made, combined with the evidence
3 about the injury that the complainant had, which
4 started to show moments later and was clearly
5 visible the next day as set out in the
6 photographs. Another factor are the
7 circumstances under which this utterance was
8 overheard, including the fact that the diagram of
9 the layout of the apartment shows that although
10 Mr. Hickling was in a bedroom with the door
11 closed, the location where the complainant was
12 would have been right on the other side of the
13 wall from where he was. So although he was in a
14 separate room with the door closed, in terms of
15 physical surroundings, he was not that far from
16 where she was. I have considered as well the
17 evidence about the lack of other noise and the
18 fact that the witness said he does not have a
19 hearing problem.
20 I made this decision recognizing there were
21 also some concerns. The complainant's blackout
22 means that she cannot be cross-examined about the
23 utterance; but, at the same time, she was a trial
24 witness, so she was, in a general way, available
25 for cross-examination. I am also mindful of the
26 prior inconsistent statements that Mr. Hickling
27 gave about what he heard, but I have considered
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1 the nature of the differences. It might have
2 been a different matter if the three versions
3 were diametrically opposed as to what he heard.
4 Here, the three versions, although different, all
5 convey messages of a similar nature, consistent
6 with the declarant wanting something to end or
7 stop. Finally, I have also given some thought to
8 the fact that Mr. Hickling is Mr. Lander's son,
9 that he may not be a completely objective or
10 distant observer to these events, but, in my
11 view, that is not in and of itself a reason to
12 conclude that his evidence is so inherently
13 unreliable that it does not meet this basic
14 threshold reliability test. And as I have
15 already mentioned, there was nothing in his
16 cross-examination on the voir dire tending to
17 show that he was fabricating this to assist his
18 mother, and he did acknowledge the earlier
19 inconsistent statements that he had made. So, on
20 the whole, I am satisfied that the criterion on
21 reliability was met on this evidence.
22 Finally, I considered the defence counsel's
23 submission that the evidence should be excluded
24 because of its prejudicial nature. The Supreme
25 Court has recognized that when dealing with
26 applications to adduce hearsay under the
27 principled exception the Court has, as it always
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1 does in matters of evidence, a residual
2 discretion to exclude evidence if the prejudicial
3 effect outweighs the probative value. There is
4 no doubt that this evidence is prejudicial to the
5 accused. If it was not, the Crown would probably
6 not seek to adduce it. But words spoken as an
7 event is unfolding is also something that is very
8 probative as far as determining the true nature
9 of the interaction between the parties. So, in
10 my view, this is not a case where it can be said
11 that the prejudicial effect outweighs the
12 probative value to the point that otherwise
13 admissible evidence should be excluded.
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17 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A)
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