This week’s top three summaries: R v Mohamed, 2023 ONCA 104: #principled exception , R v Hirsh., 2023 ABCA 59: #totality and restraint, and R v AI, 2023 ONSC 1129: Browne v Dunn.
This week's top case deals with the admissibility of out of court statements. If you want to dig deeper into the topic, I recommend the Emond title below dealing with law of Evidence. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v Mohamed, 2023 ONCA 104
[February 16, 2023] Principled Exception to Hearsay: Vetrovec Witnesses and a Failure to hold a Preliminary Hearing [Reasons by Paciocco J.A. with Janet Simmons and B. Zarnett JJ.A. concurring]
AUTHOR’S NOTE: When the Crown's case depends on the testimony of a Vetrovec witness who refuses to testify, they have the option of trying to leading their prior statements under the principled exception to the hearsay rule. However, as this case warns, that is very unlikely to succeed. Further, the Crown popular idea of direct indicting individuals instead of proceeding through a preliminary hearing has consequences. If your star disreputable witness changes their mind at trial about testifying, then for your prosecution principled exception application, you want to be able to say the defence had a chance to cross-examine at a preliminary hearing. This case demonstrates how failing to put a Crown case through a preliminary hearing where there are Vetrovec witnesses can result in a lost trial for the prosecution.
OVERVIEW
[1] The Crown appeals the acquittals of the respondents, Mohamed Mohamed and Nedeljko Borozan, of first-degree murder in the shooting death of Mohamed Najdi and of the kidnapping of Amirali Mohsen. The Crown alleges that both respondents participated in the abduction of Mr. Najdi and Mr. Mohsen, and that Mr. Mohamed shot Mr. Najdi with a firearm that Mr. Borozan had loaded. The Crown had intended to prosecute their case, in large measure, through the testimony of A.A., an alleged co-conspirator, who provided two police statements implicating Mr. Mohamed and Mr. Borozan. However, A.A. refused to testify. The Crown succeeded in securing the admission of prior statements of two other alleged co-conspirators, M.Y. and L.L., after they failed to testify consistently with those statements, but the trial judge denied the Crown’s application to admit A.A.’s two police statements. The evidence that was called, including the prior statements of the two alleged co-conspirators and the testimony of Mr. Mohsen and other more peripheral witnesses, was ultimately judged by the jury to be insufficient, and both respondents were acquitted.
[2] The Crown argues that the trial judge erred in excluding A.A.’s police statements from evidence...
THE MATERIAL FACTS
[3] On January 10, 2016, Mr. Najdi and his friend, Mr. Mohsen, were lured to a parking lot on Claremont Avenue, in the city of Ottawa, and allegedly ambushed by six male co-conspirators, leading ultimately to Mr. Najdi being shot. The six alleged co-conspirators are A.A., M.Y., L.L., Ali Elenezi (aka, “Montana”), and the respondents, Mr. Mohamed (aka, “Shadow”) and Mr. Borozan. The Crown alleges that Mr. Borozan’s street name is “Boz”.
[4] The Crown alleges that the ambush was arranged at a meeting of the six co-conspirators that occurred at the residence of Brian Aikman, who was present with his girlfriend. The Crown contends that, during this “pre-ambush meeting”, four firearms – a handgun, two shotguns, and an AK-47-style, 22-calibre semi-automatic rifle – were placed on a table and a plan to abduct, ransom and punish Mr. Najdi, a suspected police informant, was discussed.
[5]...Mr. Najdi briefly managed to escape. As he ran, Mr. Mohamed is alleged to have shot him twice from behind with the 22-calibre, AK-47-style rifle. One of those shots, which proved to be fatal, hit Mr. Najdi’s back...
[6] The respondents allegedly collected the firearms and left in the Mazda. The Crown maintains that Mr. Mohsen was brought to the SUV after being beaten and struck with a shotgun, and he was bound with duct tape. He was then driven around, including to Mr. Najdi’s apartment, so that it could be robbed of his valuable belongings. The Crown contends that the two respondents also made their way to Mr. Najdi’s residence in the Mazda and stole items. Lana El-Bairman, Mr. Najdi’s girlfriend, was present in the residence at the time. After the alleged co-conspirators left Mr. Najdi’s residence, the Crown alleges that the two vehicles caravanned around Ottawa, with Mr. Mohamed dictating the route, before Mr. Mohsen was threatened to be quiet about what happened and released.
[7] The police uncovered circumstantial evidence from A.A.’s rented SUV, including a piece of duct tape and a balaclava. DNA was found on the duct tape consistent with Mr. Mohsen’s and L.L.’s DNA profiles. A gold fragment was also found inside the SUV. DNA consistent with A.A.’s DNA profile was found on a balaclava located in the Claremont Avenue parking lot. A 22-calibre shell casing was found in the parking lot, and a 22-calibre bullet was retrieved from Mr. Najdi’s body.Cellphone tower evidence put Mr. Mohamed’s phone within blocks of the
pre-ambush meeting, and security video footage placed the Mazda and SUV east
of the crime scene at 11:02 p.m., and west of the crime scene at 1:01 a.m.
[8] ...After consulting with counsel, A.A. gave a cautioned, videotaped police statement. On April 12, 2016, in a follow-up videotaped meeting with the police, A.A. identified a photograph of Mr. Borozan as “Boz”, a person he had described in his April 9, 2016, statement as having been involved in the alleged crimes. In this judgment, I refer to the April 9, 2016, and April 12, 2016, statements, together, as the “first statement”, as the parties did during the appeal.
[10] After A.A.’s counsel contacted Crown counsel, Crown counsel sent A.A. a letter, dated August 28, 2017 (the “Crown letter”), indicating the “parameters” for a sworn police statement that the Crown would “consider … along with all of the other evidence in the case in determining how to proceed with [A.A.’s] charges”. A.A. would be required to provide “a complete, honest and unambiguous account of his knowledge and participation” in the killing and kidnapping, as well as identify all those who participated and their involvement. The letter expressed the agreement of the Crown that the contents of the statement would not be used “in respect of his current murder and kidnapping charges”, but that A.A. could be prosecuted for relevant offences “if there are grounds to believe that he either lied or actively attempted to mislead the police with the information he provides during the interview”.
[11] On September 5, 2017, after having received Crown disclosure of the evidence in the case, A.A. provided what I refer to as the “second statement”, which was given under oath and videotaped. On September 27, 2017, he pleaded guilty to manslaughter in the death of Mr. Najdi and received a sentence of 10 years imprisonment.
[12] L.L., M.Y., and Mr. Elenezi also pleaded guilty after signing substantially identical agreed statements of fact. They each received 12-year sentences. L.L. did so on March 27, 2018, Mr. Elenezi on April 5, 2018, and M.Y. on August 24, 2018.
[13] Mr. Mohamed and Mr. Borozan were tried jointly...
...However, after swearing an oath to tell the truth and answering preliminary questions about his criminal record, A.A. refused to testify, even after he was cited for contempt. As a result, the Crown brought an application seeking the admission of A.A.’s two police statements, pursuant to the principled hearsay exception. Two days of evidence were heard, and submissions were made on September 27, 2018. 1
[14] The general principles that apply to the principled hearsay exception can be stated simply. In order to gain admission under this exception the Crown had to demonstrate that the twin criteria of necessity and threshold reliability were met on the balance of probabilities. The refusal by A.A. to testify satisfied the necessity requirement. Whether the threshold reliability requirement was met depended on the Crown showing that each statement satisfied the procedural reliability or substantive reliability standards, or a combination of the two.
[16] To establish substantive reliability, the Crown relied heavily, but not exclusively, on evidence that “corroborated” A.A.’s statements. Indeed, in its overview of its position, the Crown said, “our position is that your Honour can look at significant pieces of corroboration on the record before the court to corroborate both of [A.A.’s] statements”, while making no comment about other indicia of substantive reliability. It was only during its submissions that the Crown made brief mention of other indicia of substantive reliability that it was relying upon, including that A.A. did not minimize his involvement but deeply incriminated himself, that there was no evidence he had a hostile animus against the respondents, and that his second statement began with a largely uninterrupted narrative of events.
[17] It is evident from the voir dire submissions that the Crown faced a number of challenges with its application, including: (1) A.A. was a Vetrovec witness; (2) the two statements had internal and external inconsistencies, and (3) the respondents had no opportunity to cross-examine A.A. I will elaborate on each of these challenges.
(1) A.A. was a Vetrovec Witness
[18] Where there are objective reasons to suspect the credibility of the testimony of a Crown witness, the witness is a Vetrovec witness, and the trial judge must, within the bounds of reasonable discretion, warn a jury to view their evidence with caution: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252; R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343. In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 69, Karakatsanis J. noted, for the majority, that, “[g]iven that a Vetrovec witness cannot be trusted to tell the truth, even under oath …, establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremely challenging” (citations omitted).
[19] ...even his reliability, fell under suspicion for a variety of reasons.
[20] First, he suffered from major mental illnesses, and had been diagnosed with schizophrenia and bipolar disorder. Indeed, he had been found not criminally responsible on account of mental disorder on September 2005 charges of uttering threats and possession of a weapon dangerous to the public peace after he was found to have been suffering from paranoid delusions.
[21] He also had a lengthy criminal record that included offences of dishonesty, and he was a long-time drug abuser who, according to a psychiatric report, dated only a few weeks before the alleged crimes, had been consuming a great deal of cocaine. In his first statement, he told the police that he had done lines of cocaine prior to the alleged crimes.
[22] Finally, A.A. was an alleged accomplice who provided his second statement on the understanding that it could result in a lesser charge, for which he would receive a lesser sentence.
(2) The Statements were internally and externally inconsistent
[24] During what I will call the “first phase” of his first statement, consisting of approximately 100 pages of the 322-page interview transcript, A.A. denied any involvement and offered an alibi. When challenged, he denied lying, saying “Hand to God”.
[25] During the “second phase” of the first interview, after being told to “cut the bullshit” and in response to questions, he provided his second version, a limited statement about the events and his involvement.
[26] In his second statement A.A. provided the third version, a much more detailed account that included information he had previously denied knowing.
[27] The statements that A.A. provided contained numerous inconsistencies relating, for example, to whether he witnessed planning at the Aikman residence for the events that would follow and what the plan was; whether he saw weapons there and, if so, what those weapons were; whether Mr. Borozan was present; what role he himself played at the scene of the shooting, including in taking Mr. Mohsen hostage; his prior knowledge of Mr. Mohamed; his knowledge of balaclavas and who wore them; his role, if any, at Mr. Najdi’s residence; and where he went after leaving Mr. Najdi’s residence. Simply put, there were inconsistencies in his answers touching upon every stage of the alleged events.
[28] ...the Crown...
...In essence, its position was that, although not everything said in the statements was reliable, a core narrative could be extracted from the statements that was reliable.
[29] The Crown relied heavily in support of this key narrative on commonalities between the statements and argued that they served as corroboratio...
... Most importantly, it relied on the following features found in both statements:
The Sequence of Events
Both statements include similar accounts of the pre-ambush meeting, the Mazda and A.A.’s SUV going to the Clarendon Avenue parking lot, the shooting that occurred there, the entry and theft at Mr. Najdi’s residence, and driving around Ottawa afterwards.
The Co-conspirators
A.A. referred to all five of the other co-conspirators in both statements, although, during his first statement, he used street names for some and said he did not know the shooter’s name or street name. During his first statement, he selected Mr. Mohamed and L.L. from photographic lineups and, as indicated, two days later, he identified a photograph of Mr. Borozan as “Boz”.
The Account of the Shooting and Shooter
In both of his statements, A.A. included accounts of witnessing Mr. Najdi being shot twice from behind with a .22 calibre mini-AK-47. In his first statement, he said Mr. Najdi was shot by a “short, lanky, and black” man referred to as “evil eyes”, and he selected Mr. Mohamed’s photograph from a lineup as “the man who shot Najdi”. Mr. Mohamed, who is Black, is 5’10”. In his second statement, he referred to the shooter by name, as Mr. Mohamed, and by street name, as “Shadow”.
[30]... The Crown position was that the trial judge had to evaluate each statement independently but should admit them both, since both statements satisfy the principled hearsay exception.
(3) No meaningful cross-examination had occurred
[31] Because they were directly indicted, the respondents did not have the benefit of a preliminary inquiry where A.A.’s evidence could be tested, and he refused to testify at their trial before the opportunity for a meaningful opportunity to cross-examine him arose...
THE ISSUES
[33] The Crown appeals the acquittals, focusing solely on the trial judge’s decision to exclude A.A.’s statements, which it claims was made in error and rendered with insufficient reasons.
ANALYSIS
[37] The admission of hearsay evidence is a question of law and the legal principles a trial judge utilizes are to be reviewed on a correctness standard. However, absent material misapprehensions of evidence or unreasonable decisions, deference is to be given to findings of fact made by the trial judge, including determinations of threshold reliability: R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 31; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81.
A. DID THE TRIAL JUDGE FAIL TO CONSIDER ADEQUATELY THE INDICIA OF PROCEDURAL RELIABILITY AND PLACE UNDUE EMPHASIS ON THE INCONSISTENCIES?
[47] ... some form of cross-examination of the declarant is usually required to provide threshold procedural reliability in the case of a recanting witness: Bradshaw, at para. 28; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92, 95. He was, therefore, correct in law to pay close attention to the absence of cross-examination. This is particularly so, given the inconsistencies in A.A.’s statements. Those inconsistencies would have provided fertile ground for cross-examination. The trial judge did not give those inconsistencies undue emphasis. He was entitled to remain unpersuaded that oaths, cautions, and video-recordings could, in this case, overcome the gap left by the absence of any form of defence cross-examination.[48] Therefore, I see no basis for interfering with the trial judge’s finding that the indicia of procedural reliability offered by the Crown did not provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the statements, as is required: Bradshaw, at para 28. The decision is entitled to deference. I would dismiss this ground of appeal.
C. DID THE TRIAL JUDGE FAIL TO APPLY THE CORRECT TEST FOR EVALUATING SUBSTANTIVE RELIABILITY FACTORS?
[51] Threshold substantive reliability “is concerned with whether the circumstances [in which the statement was made], and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness and accuracy” (emphasis in original): Bradshaw, at para. 40. If the Crown establishes that this is so, presumptive inadmissibility will be overcome because the hearsay evidence will be so inherently trustworthy “that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31; R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 30; R v. Barrett, 2020 NSCA 79, at para. 21. This question – whether in-court cross-examination of the declarant would add anything to the trial process – is to be the trial judge’s “preoccupation”: Bradshaw, at para. 40; R v. S.S., 2022 ONCA 305, at paras. 48- 53.
[52] Thus, when assessing threshold reliability, the trial judge is required to “identify the specific hearsay dangers presented by the statement and consider any means of overcoming them”: Bradshaw, at para. 26.
[53] Where corroborative evidence is relied upon in demonstrating threshold substantive reliability, the corroborative evidence must overcome the specific hearsay dangers presented by the material aspects of the contents of the statement that the party wants to rely upon: Bradshaw, at paras. 45-47; McMorris, at paras. 80-81. It will do so when, considered as a whole, along with other indicia of reliability, the corroborative evidence shows that the only “likely explanation” for the hearsay statement is the declarant’s truthfulness and the accuracy of the material aspects of the statement, such that the material aspects of the statement are unlikely to change under cross-examination, making cross-examination unnecessary: Bradshaw, at paras. 4, 44, 47; R v Tsega, 2019 ONCA 111, 372 C.C.C. (3d) 1, at paras. 26, 44, leave to appeal denied, [2019] S.C.C.A. No. 106; R. v. Bernard, 2018 ABCA 396; 368 C.C.C. (3d) 437, at para. 23; R. v. Newsham, 2019 BCCA 126, at paras. 31, 36; R. v. Hall, 2018 MBCA 122, 368 C.C.C. (3d) 520, at para. 70.
[54] “Corroborative evidence that is ‘equally consistent’ with the truthfulness and accuracy of the statement as well as another hypothesis is [therefore] of no assistance”: Bradshaw, at paras. 48-49. As a result, the requirements of substantive reliability will be met if, “in the circumstances of the case, [the corroborative evidence shows] that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement” (emphasis in original): Bradshaw, at para. 47.
[55] Of significance, information that merely supports the truthfulness of the statement or supports the allegation or corroborates the declarant’s credibility is not enough: Bradshaw, at paras. 34-36, 42, 44; Tsega, at paras. 44-50. “The function of the corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove” (emphasis in original): Bradshaw, at para. 46.
[56] A four-step analysis should, therefore, be undertaken when corroborative evidence is relied upon. As described in Bradshaw, at para. 57, the trial judge should:
1) identify the material aspects of the hearsay statement that are tendered for their truth;
2) identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3) based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4) determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
(a) Did the trial judge conflate the test for substantive reliability with the standards for assessing corroboration?
[58] I would not accept these submissions. I am persuaded that, when the trial judge described the Bradshaw corroboration passage as an “outline for the analysis of substantive reliability”, he simply misspoke.
[62] First, the failure by a trial judge to mention a submission is not always a dependable indication that he failed to consider the submission. This is particularly so in a case, such as this, where the decision followed only hours after those submissions were made.
[65] Simply put, the trial judge was not obliged to refer specifically to these submissions. Would it have been better if he had done so? Of course, but I cannot find that his failure to do so is an error, or that it verifies that he misapprehended the test for substantive reliability.
(b) Did the trial judge err by failing to confine his analysis to “likely” possibilities?
[66]... Specifically, he said that he was “simply not satisfied on the balance of probabilities that all alternative or speculative explanations are dealt with, and that the only remaining explanation of the statement is the declarant’s truthfulness about the accuracy of the material aspects of the statement”. The Crown relies upon the omission, in this passage, of the word “likely” as establishing that the trial judge applied the wrong test.
[67] I am not persuaded that the trial judge applied the wrong test. Earlier in his reasons, the trial judge correctly articulated the relevant inquiry, including the word “likely”. Moreover, before the impugned passage, he had communicated that he found it difficult to see how the corroboration, identified by the Crown, addressed the likely possibilities that A.A. was attempting to “manipulate the process” in giving statements for the purpose of minimizing his own criminal liability, and that he may have used the disclosure to tailor his account. I accept that the trial judge could have expressed himself more clearly, but a fair reading of the material passages is that he considered that these alternative explanations remained realistic, or likely, possibilities, even in the face of the evidence relied upon as corroboration. I am satisfied that, although he did not include the word “likely” in his final summary, the trial judge analysed the case by considering whether truthfulness was the only likely explanation.
(c) Did the trial judge err by considering implausible speculative possibilities?
[69] The contrast between “speculative” possibilities and “plausible” possibilities arises as an issue because the two expressions were used alternatively in Bradshaw. When describing the third analytical stage in assessing the sufficiency of corroborative evidence, as set out above in para. 56 of this judgment, Karakatsanis J. said that the trial judge “must therefore identify alternative, even speculative, explanations for the hearsay statement … [C]orroborative evidence that is ‘equally consistent’ with the truthfulness and accuracy of the statement as well as another [such] hypothesis is of no assistance” (emphasis added): Bradshaw, at para. 48. But, when speaking of the fourth analytical stage, she said, at para. 49, “the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities” (emphasis added).
[70] There is broad agreement in the subsequent case law that, when Bradshaw is read as a whole, corroborative evidence need not rule out implausible speculative possibilities to support a finding of substantive reliability. It need only rule out plausible possibilities: see, for example, McMorris, at paras. 33-34. I, therefore, agree with the Crown that it would have been an error had the trial judge found the corroborative evidence to be inadequate because it did not rule out implausible possibilities. However, I am not persuaded that the trial judge committed this error.
D. DID THE TRIAL JUDGE ERR BY MISAPPLYING THE BRADSHAW FRAMEWORK FOR THE ANALYSIS OF CORROBORATIVE EVIDENCE?
[77] The Crown’s primary submission is that the trial judge ignored material pieces of corroborative evidence in his ruling, thereby failing to consider the “full force” of the corroborative evidence. The “corroborative evidence” the Crown was relying upon was listed by the Crown in an appendix, filed before the trial judge. It included forensic evidence confirming A.A.’s description of the firearm used in the shooting; his claim that Mr. Najdi was struck by two shots that were fired from behind him; cellphone tower evidence offering circumstantial support that some of the players were in the general areas where some of the events occurred; the overlap between elements of A.A.’s statements and the statements of other witnesses; and the overlap between elements of A.A.’s statements and the facts adopted during the guilty pleas.
[78] I am not persuaded that the trial judge ignored this evidence. Some of the evidence the Crown relies upon is not corroborative. The statements of fact accepted during the guilty pleas were based, in large measure, on A.A.’s statements. It would be circular to treat them as corroborative of those statements. Moreover, A.A.’s statements both derive from the same source – himself. Although his first statement could be used to rebut recent fabrication concerns related to the second statement, the two statements cannot corroborate one another.
[79] To be sure, some of the remaining corroborative evidence could confirm the truthfulness of some of what A.A. said. This evidence could, thereby, give an ultimate trier of fact increased confidence in his credibility generally. But, as Karakatsanis J. stressed in Bradshaw, at paras. 4, 45 and 47, corroborative information that accomplishes only these things is insufficient to meet the threshold reliability standard. To meet the requisite standard, the corroborative evidence must overcome the specific hearsay dangers presented by the material aspects of the contents of the statement that the Crown wants to rely upon: Bradshaw, paras. 45-47. Yet, none of the corroborative evidence mitigated the need for cross-examination on the point that the hearsay was tendered to prove, namely, that Mr. Borozan was linked to guns during the alleged events or that Mr. Mohammed was the shooter: see Bradshaw, at para. 46. None of the corroborative evidence rendered unlikely the plausible possibilities that A.A. falsely identified Mr. Mohammed as the shooter, or falsely described Mr. Borozan’s link to the weapons, in order to secure more favourable treatment for himself. Further, none of the corroboration rendered unlikely the plausible possibility that A.A. used the disclosure to craft details introduced in his second statement.
[80] In my view, on the record before him, the trial judge was entitled to conclude that he was not satisfied that the corroborative evidence established, on the balance of probabilities, that the only remaining likely explanation for the statements was A.A.’s truthfulness. In the circumstances, the trial judge was not required to describe, and then explicitly discount, the inadequate corroboration, item by item. His reasoning path is readily apparent, and his conclusion derives reasonably from the evidence before him.
CONCLUSION
[85] The Crown’s admissibility application was difficult. The witness it was relying upon was a Vetrovec witness and, as I have stated, “establishing that hearsay evidence from a Vetrovec witness is inherently trustworthy will be extremely challenging”: Bradshaw, at para. 69. The Crown was seeking the admission of statements that contained material inconsistencies. A.A.’s account became more elaborate as his jeopardy became clearer, and the opportunity to reduce that jeopardy by cooperating became plainer. Moreover, there had been no cross-examination of A.A. because the Crown had made the tactical choice to directly indict the respondents, and there would be no opportunity to cross-examine A.A. before the jury. Finally, the corroboration that was available, while it could potentially enhance the general credibility of A.A. and that of his account, did not address, let alone overcome, the specific hearsay dangers presented by the material aspects of the contents of the statement that the Crown wanted to rely upon.
[86] In these circumstances, the trial judge’s decision was entirely reasonable and, although it was not expressed with perfection, it did not have to be. His analysis was readily discernible and entirely supported on the record.
[87] I would dismiss the Crown’s appeal.
R v Hirsch, 2023 ABCA 59
[February 17, 2023] Sentencing: Totality and Restraint [Frans Slatter, Kevin Feehan, and Anne Kirker JJ.A.]
AUTHOR’S NOTE: When sentencing for multiple offences and particularly when imposing consecutive sentences, a trial judge is obligated to address the principle of totality. That is, the court must demonstrably take a last look to ensure the cumulative sentence is not excessive. Further when imposing sentence on a youthful first offender who demonstrates remorse and starts on the path to rehabilitation, the trial judge has to demonstrate they considered the principle of restraint in s.718.2(d) of the Criminal Code. Here, the trial judge's failure to show either principle was considered and applied resulted in a re-sentencing of the accused.
I. Overview
[1] Mitchell Hirsch was convicted of two counts: failure to stop after an accident resulting in bodily harm on September 1, 2020, contrary to s 320.16(2) of the Criminal Code, RSC 1985, c C-46, and failure to stop after an accident on October 1, 2020, contrary to s 320.16(1). For the September 1 offence he was sentenced to 13 months’ incarceration, and for the October 1 offence to six months, to be served consecutively.
[2] Mr Hirsch does not contest the 13-month sentence. On the six-month sentence for the October 1 offence, he says the trial judge gave undue and improper emphasis to it being committed while he was on release from the September 1 offence and failed to engage the totality principle for the two offences.
[4] For the reasons below, the appeal is allowed
[5] On the morning of September 1, 2020, Mr Hirsch struck a pedestrian in a crosswalk. He got out of his truck and argued with the victim, said he would call 911, but then drove away instead. A witness took his photograph using a smartphone, and several witnesses called 911.
[6] The pedestrian suffered severe injuries including the fracture of his left tibia and fibula. He required two surgeries and extended hospitalization, and has ongoing mobility issues affecting his ability to work and enjoy physical leisure activities.
[8] On the afternoon of October 1, 2020 while on release, Mr Hirsch was again driving his truck when he struck the rear of a vehicle bearing a driver and two children. He made no attempt to stop, accelerated through traffic, swerved between lanes, took a sharp turn, and crashed into a pole. He was found in the driver’s seat unconscious. Later he was unable to hold a coherent conversation and did not know he had been in an accident. A blood sample revealed fentanyl in his system.
[9] Mr Hirsch proceeded to sentencing in July 2022 after pleading guilty to both offences. He indicated he had abstained from fentanyl since the second offence but had used other controlled drugssporadically. He had also completed residential treatment at Poundmaker’s Lodge, expressed remorse for the offences, and said he wished to apologize to the victim. His criminal record was dated and not a significant factor.
[11] The sentencing judge sentenced Mr Hirsch to 13 months’ incarceration and a three-year driving prohibition on the first offence. She said the second offence “repeated much of the same characteristics as the [first] offence” and sentenced him to six months’ incarceration to run consecutively and a one-year driving prohibition. She also made a 12-month probation order.
V. Analysis
1) Emphasis on the second offence being committed while on release
[16] Mr Hirsch concedes it is an appropriate aggravating factor that an offence was committed while on release. However, he says the sentencing judge went further and offended the Coke principle (pronounced “Cook”) that “a harsher sentence with respect to a second offence cannot be imposed unless the offender was convicted for the first offence prior to the commission of the second”: Sir Edward Coke, Institutes of the Lawes of England, 1628; R v Auger, 2017 ABCA 304, para 9, citing R v Andrade, 2010 NBCA 62, para 14, 260 CCC (3d) 353.
[17] Mr Hirsch says this is a qualitatively different and more pressing factor than the aggravation of having committed an offence while on release. He submits breach of the Coke principle is apparent because the six-month sentence is outside the range of a fit and appropriate sentence and demonstrably unfit. In response, the Crown says the sentencing judge did not misapply this principle.
[20] It is not necessary to decide whether the sentencing judge did or did not breach the Coke priniciple. The question is whether the sentence for the second offence was demonstrably outside the acceptable and reasonable range for a hit and run simpliciter or, more fundamentally, whether the cumulative sentence imposed is unduly long or harsh.
2) Totality Analysis
[22] While sentencing judges must ensure that a sentence does not exceed the appellant’s culpability, they must also ensure the offences not go unpunished: R v Johnas, 1982 ABCA 331, para 26, 2 CCC (3d) 490. Where an offender commits multiple offences and is given consecutive sentences, the court must take a “last look” after individual sentences are determined to ensure that the cumulative sentence is not excessive: s 718.2(c), Criminal Code; R v May, 2012 ABCA 213, para 14, 75 Alta LR (5th) 135; R v McDonald, 2015 ABCA 108, para 53, 323 CCC (3d) 291. Totality may also address proportionality and restraint in the context of imposing consecutive sentences to ensure that combined sentences should not be unduly long or harsh: May, para 14.
[23] Both counsel for the Crown and Mr Hirsch asked the sentencing judge to address totality in sentencing on these consecutive offences. It is not evident that she did so. It is preferable for sentencing judges to explain how the totality principle informs the sentence imposed, although they are not required as a matter of law to recite any specific “incantation” about scrolling down from the total of consecutive sentences. The overarching issue is “whether the sentence imposed is unduly long or harsh, in the sense that it exceeds what is appropriate given the appellant’s overall culpability, or whether it is demonstrably unfit for these offences committed by this offender”: R v Virani, 2020 ABCA 342, paras 10, 13.
[24] Here the sentencing judge neither referred to the totality principle nor obviously applied it to the total of the consecutive sentences. The result is a sentence that exceeded Mr Hirsch’s overall culpability, was unduly harsh, and demonstrably unfit.
3) Restraint
[25] The cumulative sentence also failed to reflect the important principle of restraint, s 718.2(d) and (e), Criminal Code, for a youthful first-time offender who confessed immediately upon arrest, entered early guilty pleas, expressed sincere remorse, wished to offer an apology to the victim, and has refrained from using the controlled substance at issue in these offences.
VI. Conclusion
[26] The global sentence of 19 months for these convictions, considered holistically and in context, is outside the range of a fit and proper sentence. It exceeds what is appropriate for Mr Hirsch’s overall culpability and is demonstrably unfit.
[27] The appeal is allowed. The sentence for the second conviction is reduced from six months’ incarceration to two months’ incarceration, consecutive to the 13-month sentence on the first conviction, for a global sentence of 15 months
R v AI, 2023 ONSC 1129
[February 14, 2023] Browne v Dunn - Failure to Allow Submissions on Remedy, Defence not obligated to put every detail of Contradictory Testimony to Crown witness [Justice J.C. Corkery sitting in Summary Conviction Appeals Court]
AUTHOR’S NOTE: The rule in Browne and Dunn is ultimately about fairness. This includes fairness to the parties beyond the witness in question. A trial judge cannot make adverse credibility findings against the accused where the issue of remedy does not come up prior their issuing judgment. Defence is entitled to make submissions on the remedy which can include recalling witnesses so there is no credibility impact. Here, the trial judge's failure to invite submissions was partially responsible for the conviction being overturned. Another aspect, much abused, of the rule is that it does not require every contradictory detail to be put to the witness. They simply must be put on notice that their version of events is contested and given the overview of the point of contention.
[1] On February 25, 2020, the Appellant was convicted of one count of assault and three counts of sexual assault. He received a six-month conditional sentence and probation. He appeals his convictions. He asks that his convictions be quashed and a new trial ordered.
[2] The Appellant was charged with four counts of sexual assault on his sister-in-law:
1. On August 29, 2018, he was alleged to have rubbed her leg.
2. On September 13, 2018, he was alleged to have kissed her.
3. On September 15, 2018, he was alleged to have grabbed her breasts.
4. On September 23, 2018, he was alleged to have grabbed her breasts and kissed her.
[3] The complainant alleged that the acts took place without her consent. She initially sought a peace bond against the Appellant. A month later, she asked that criminal proceedings be commenced. The Appellant testified in his defence and denied all allegations of sexual assault. His testimony was supported on two of the counts by his wife, counts 3 and 4.
[4] In her reasons, the trial judge accepted the complainant’s evidence as credible and used this finding as the basis to reject the Appellant’s evidence. She convicted him of the lesser offence of assault, on count one and convicted him of sexual assault on the remaining counts.
The Evidence at Trial
[6] At the time of the allegations, the Appellant lived with his wife and two children. The complainant lived across the street from the Appellant with her husband and two children. The two families were very close and saw each other almost every day. The children spent time together at both homes.
[7] The complainant and her husband were struggling financially. Her husband was upset with her for exhausting their line of credit. The complainant had remained on unpaid leave from her work as a teacher after maternity benefits ended. Even when she returned to work, she and her husband were having trouble covering their expenses. The complainant discussed her financial issues with the Appellant and his wife. She called and texted the Appellant multiple times about them. She described him as a sympathetic ear. According to the Appellant, she discussed with him that she was considering leaving her husband which he advised against.
The first count
[8]....The Appellant rubbed her leg for the remainder of the 15-minute drive.
The second count
[11]....The Appellant came into the living room from the garage. He put his knee on the couch and kissed her. She pulled away, swore, and said, “What are you doing? This is not appropriate.” The Appellant responded by laughing as though he was proud of himself. She was shocked and scared, and felt the Appellant was using his size to keep her on the couch. He tried to kiss her again and she turned her face against the couch cushions to avoid him. He left the room and went back to the garage. She followed him out to the garage but said nothing to her husband about what had occurred.
The third count
[13] On Friday, September 15, 2018, there was a gathering at the complainant’s home for her birthday. The celebration took place in the kitchen. The kitchen was on the main floor, the whole floor being a “completely open concept”. Both families were in attendance.
[14] The complainant testified that she decided to go to the powder room to clean up. As she walked through the hallway, the Appellant who was also going to the bathroom to clean up, was behind her. He grabbed her breasts.
The fourth count
[16] On Saturday, September 23, 2018, the two families were at the Appellant and his wife’s home for a barbeque. The complainant had arrived after having purchased gas for her car on the way over and she had gas on her hands.
[17] She testified that she went into the laundry room to clean her hands with vinegar. The Appellant followed her into the laundry room, closed the door, put his hands down her shirt from behind, and grabbed her breasts. She told him to stop, moved his arms from her shirt and quickly returned to the kitchen. The Appellant went outside and continued barbecuing.
[19] The Appellant denied that any assault took place that day in the laundry room or later while the girls were in the bath. He was not asked whether he was ever in the laundry room with the complainant that day.
[20] The Appellant’s wife testified that before the girls’ baths, the complainant looked outside to see if the lady purchasing the stroller had arrived. The complainant told the Appellant’s wife that she had not arrived. The complainant sent her husband across the street to their home to see if she was there. He left and returned to advise the lady was not at their house either. The Appellant’s wife and the complainant then went upstairs with the girls for the girls’ baths. The complainant was upstairs with the Appellant’s wife the entire time that the girls were bathing and never left to go downstairs.
The disclosure of the allegations and the text message apology
[30] On September 30, 2018, the Appellant sent the complaint’s husband, a text message:
I owe u and ur family an apology I never intended to hurt anyone I’m sorry u will never
forget nor forgive this fuck up and I will live with this the rest of my life.
[32] The Appellant and his wife both testified as to how the September 30 text came to be sent. The complainant spoke to the Appellant’s wife’s parents about the situation. She told them she would be pressing charges and suing the Appellant. The Appellant’s wife’s, feeling the Appellant needed to do something to prevent criminal proceedings, told the Appellant to apologize to the complainant through her husband. The Appellant agreed in the hope that there would be no criminal charges, and also thinking he should apologize if he had done something to make the complainant feel uncomfortable.
The Trial Judge’s Reasons
[33] The trial judge found the complainant was a credible witness. She rejected the defence position that the complainant had fabricated the allegations, perhaps for financial reasons.
[34] The trial judge concluded that the text apology supported the complainant’s version of events and rejected the defence argument that it had been “an effort at appeasement” to avoid criminal charges.
[35] Relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252, the trial judge used her acceptance of the complainant’s evidence as a basis to reject the defence evidence.
[36] She was not satisfied that the leg rubbing on August 29 occurred in circumstances of a sexual nature and convicted the Appellant of simple assault on that count. She convicted him of sexual assault on the remaining three counts.
Analysis
Ground 1: The trial judge erred in applying the rule in Browne v. Dunn
[37] The first ground of appeal is that the trial judge erred in finding that trial counsel for the appellant twice breached the rule in Browne v. Dunn (1893), [1883] 6 R. 67 (H.L. (Eng.)) by failing to put to the complainant in cross-examination evidence of the Appellant’s wife: first, regarding the reason she had her husband send the text and second, what the complainant told her about what happened in the laundry room.
[38] During the trial neither counsel raised the rule in Browne v. Dunn. There was no objection raised during evidence relying on the rule and there was no mention of the rule in submissions. However, in her reasons the trial judge stated (at pp. 42-43 of the transcript):
Additionally, [the Appellant’s wife] claimed that she had her husband send the text because of [the complainant] telling her parents that she was pressing charges and suing him and would not relent. This is not asking for an apology. The parents were not called to testify as to the conversation [the Appellant’s wife] claims they had with the complainant about pressing charges and suing him and this was not suggested to the complainant. This offends the rule in Browne v. Dunn.
[The Appellant’s wife] said that the complainant told her something different than what was in disclosure. She said that the complainant told her that her husband touched her inappropriately, put his hand down her top and smelled his hand and grabbed her ass in the laundry room. This was not put to the complainant, she as was not cross-examined on that. This offends the rule in Browne v. Dunn.
Was there a violation of the rule Browne v. Dunn?
[41] Crown counsel agrees with the Appellant that the first finding of a violation of the rule by the trial judge was in error. The evidence of the Appellant’s wife with respect to the reason for the text the Appellant sent to the complainant did not contradict the evidence of the complainant.
[42] With respect to the second violation, the complainant testified that the Appellant came into the laundry room, put his hands down her shirt from behind, and grabbed her breasts. She told him to stop and moved his arms off her. The Appellant’s wife testified that the complainant told her that the Appellant touched her inappropriately in the laundry room. He put his hand down her top, he smelled his hand, and he grabbed her ass.
[43] Whether all aspects of an accused's anticipated testimony must be put to a Crown witness where it conflicts with the witness’s testimony was addressed by Finlayson J.A. in R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376:
Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in crossexamination, everything he said in chief, is rarely the tactic of choice.
[44] In R. v. Quansah, 2015 ONCA 237, 19 C.R. (7th) 33, Watt J.A. explained that the requirements of the rule depend upon the circumstances of the case. At paras. 81 and 86, he stated:
Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’s credibility and on which the witness has not had the opportunity of giving an explanation because there has been no suggestion whatever that the witness’s story is not accepted… It is only the nature of the proposed contradictory evidence and its significant aspects that need to put to the witness... [Citations omitted]
…
The confrontation principle is not violated where it is clear, in all the circumstances, that the cross-examiner intends to impeach the witness' story: Browne v. Dunn, at p. 71. Counsel, who has cross-examined the witness on the central features in dispute, need not descend into the muck of minutiae to demonstrate compliance with the rule: Verney, at p. 376 C.C.C.
[45] In this case, defence counsel made it abundantly clear in his cross-examination of the complainant that it was the defence’s position that her stories on all the events were false. The differences in the accounts of what happened in the laundry room, as reported by the complainant in her evidence and in what the Appellant’s wife testified she said, are minor. Both versions provide evidence of the offence of sexual assault. Neither counsel appear to have regarded any difference as significant. The Crown did not raise an objection based on the rule in Browne v. Dunn. The Crown did not cross-examine the Appellant’s wife on her evidence and neither counsel made closing submissions on the differences.
[46] The failure to cross examine the complainant on the expected evidence of the Appellant’s wife with respect to what the complainant said to her about what happened in the laundry room did not offend the rule in Browne v. Dunn. The trial judge erred in finding that it did. The trial judge’s failure to give counsel an opportunity to respond to her Browne v. Dunn findings
[47] Although I have determined that there was no breach of the rule in Browne v. Dunn, if I am mistaken and there was a breach of the rule, then the trial judge erred in not allowing counsel the opportunity to address the issue.
[48] The rule in Browne v. Dunn was only raised by the trial judge in her reasons and on her own initiative. Had trial counsel been made aware of the trial judge’s concerns regarding the rule they would have had the opportunity to argue that there were no violations of the rule and, if there was, what remedy was appropriate.
[49] In Quansah, Watt J.A. addressed the factors to be considered where a breach of the rule occurs, at para. 117:
It should scarcely surprise that breaches of a rule grounded in fairness do not attract a single or exclusive remedy. The remedy is a function of several factors including, but not only,
- the seriousness of the breach;
- the context of the breach;
- the timing of the objection;
- the position of the offending party;
- any request to permit recall of a witness;
- the availability of the impugned witness for recall; and
- the adequacy of an instruction to explain the relevance of failure to cross-examine.
[50] Clearly, consideration of these factors requires submissions from counsel.
[51] Although the trial judge considered Quansah, she did not address the factors that determine the remedy. Without submissions it was impossible for her to properly so. This was an error.
The role Browne v. Dunn played in the trial judge’s reasons?
[55] Because the Crown did not raise any objection relying on the rule in Browne v. Dunn, the trial judge stated she would not give this much weight and would “treat it as minimally impacting on the credibility of the defence witness [sic].” However, she then concluded “However, it does affect the weight to be given to those statements made and I give no weight to those statements.”
[56] As a result of her finding that there were two breaches of the rule in Browne v. Dunn, the trial judge gave no weight to two statements in the evidence of the Appellant’s wife, which she regarded as important pieces of evidence relating to the credibility of the complainant and to the credibility of the Appellant and his wife. This was an error.
[57] Credibility was the central issue in this trial. Findings of credibility that rely on the erroneous finding of breaches of the rule in Browne v. Dunn cannot stand.
[58] On this basis, I would grant the appeal.
Conclusion
[61] The appeal is granted. The convictions on all four counts are quashed and a new trial is ordered.
