R. v. Almotairi, 2013 BCSC 1423

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Almotairi, 2013 BCSC 1423 Date: 20130725 Docket: 95336-2 Registry: Kamloops Regina v. Yousef Mohammed Almotairi Before: The Honourable Mr. Justice Goepel Oral Ruling on Voir Dire Counsel for the Crown: C. Balison Counsel for the Accused: M. Stanford Place and Date of Application: Kamloops, B.C. July 22-23, 2013 Place and Date of Ruling: Kamloops, B.C. July 25, 2013 INTRODUCTION [ 1 ] The accused is charged with aggravated assault and assault with a weapon arising out of an incident that took place at Cactus Jack’s nightclub on November 3, 2012.

Pursuant to admissions that were filed at the commencement of trial, the accused admits that he struck Abdulaziz Alhedaib in the eye with a pool cue, causing Mr. Alhedaib to be wounded. [ 2 ] The accused now seeks to tender during the cross-examination of Constable Elgee, a Crown witness, a statement he made to Constable Elgee when Constable Elgee advised him he was under arrest for assault.

He submits that the statement is a spontaneous utterance in overwhelming circumstances and falls within the res gestae exception to the hearsay rule, which allows for the admission of such utterances to prove the truth of their content. Alternatively, he submits that the statement should be admitted for the limited purpose of providing evidence of his state of mind and emotional condition at a time contemporaneous with the alleged assault. [ 3 ] The Crown submits that the evidence is not admissible as res gestae evidence because the accused had time and motive to concoct a story before he made the statement.

The Crown submits that the rule against prior consistent statements therefore prevents the admission of the statement. The Crown further submits that the statement has no probative value with respect to the accused’s state of mind at the time of the incident. BACKGROUND TO THE STATEMENT [ 4 ] On the early morning of November 3, 2012, Constable Elgee was in uniform on general duty. He was parked in an unmarked police car outside Cactus Jack’s. A bouncer from Cactus Jack’s came to his car and told him that an individual had been injured when hit in the eye by a pool cue.

He was told that the alleged assailant was in the alleyway beside Cactus Jack’s with other staff members. [ 5 ] Constable Elgee radioed for an ambulance and then called for police backup, as he was alone in his vehicle. He then drove his vehicle to the alleyway, where he spoke to the accused. He observed an overwhelming odour of alcohol coming from the accused’s breath. He said the accused had bloodshot eyes. He did not observe any other signs of intoxication. [ 6 ] When he approached the accused, Constable Elgee asked him about his involvement in the pool cue incident.

The accused told him that he and the victim were friends and that “we would figure this out”. Constable Elgee told the accused he was being detained for an assault investigation, to which the accused responded, “I do not want a criminal record”. Constable Elgee handcuffed the accused and placed him in the backseat of his police vehicle. [ 7 ] Constable Elgee then went into Cactus Jack’s, hoping to interview the victim. The victim was unconscious, however, and being attended to by B.C. Ambulance personnel. [ 8 ] Constable Elgee then returned to his vehicle.

When he entered it, he advised the accused that he was under arrest for assault. At that point, the accused said, “What do you expect, it was just a reaction”. It is this statement that the accused now seeks to have admitted into evidence. [ 9 ] Constable Elgee testified that the accused was relatively friendly during their interactions. He says that he appeared worried

when he was detained. He testified that his initial interaction with the accused before he was put in the police car lasted approximatelytwo minutes. He says that he returned to the police car within a relatively short period after going into Cactus Jack’s. He believes he mayhave been gone for up to five minutes. DISCUSSION [10] Subject to certain exceptions, exculpatory out-of-court statements made by an accused are generally inadmissible because theyare viewed as self-serving and lacking in probative value: R. v.

Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111 at para. 36. [11] Where the accused does not testify, there is an additional rationale for excluding such statements. In R. v. Simpson, (SCC), [1988] 1 S.C.R. 3 at 22, the Supreme Court of Canada explained: As a general rule, the statements of an accused person made outside court ‒ subject to a finding of voluntariness where the statement ismade to one in authority ‒ are receivable in evidence against him but not for him.

This rule is based on the sound proposition that anaccused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses andthus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. [12] In R. v. Edgar, 2010 ONCA 529, the Ontario Court of Appeal added a new exception, holding that it was time to abandon therule that exculpatory statements made upon arrest are necessarily inadmissible.

The court said at paras. 72-73: [72] I conclude, therefore, that it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrestor when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of thereaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herselfto cross-examination.

As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what wassaid (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, whichis relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence. [73] As a practical matter, once the accused has testified, he or she should be entitled to call in reply the police officer who heard andrecorded the statement to verify to the jury the fact that it was made. [Emphasis added.] [13] The exception in Edgar is premised on the accused taking the stand and being exposed to cross-examination.

In this case,however, the accused is attempting to tender the statement during the Crown’s case. In such circumstances, the Edgar exception, which Inote has been the subject of some academic criticism and has not yet been adopted in British Columbia, does not apply. [14] The accused’s submission in this case is premised on the res gestae exception to the hearsay rule. The accused submits that thestatement was made spontaneously when he was advised of the charge.

He submits that there can be no concern for concoction in thecircumstances of this case, as the statement was a spontaneous utterance made immediately upon the accused being told that he wasunder arrest. [15] The circumstances in which an accused’s statement might be admissible under the res gestae exception to the hearsay rule werecanvassed in detail by Holmes J. in R. v.

Pattison, 2011 BCSC 1594, aff”d 2013 BCCA 246. [16] In Pattison, the accused, who was on trial for second degree murder, sought to tender in his examination-in-chief an audiorecording of the first few minutes of a 9-1-1 call that he had made shortly after he fired the shot that killed the victim. As in this case, itwas submitted that the statements were spontaneous utterances in overwhelming circumstances and fell within the res gestae exception. [17] Holmes J. discussed the res gestae exception, including the academic writing concerning same, at paras. 12 to 25.

At para. 13,she referred to a discussion of res gestae evidence in Peter K. McWilliams & S.

Casey Hill, McWilliams’ Canadian Criminal Evidence,looseleaf, 4th ed. (Aurora: Canada Law Book, 2003), where the authors, at 7-72, identified three broad categories of res gestae evidenceadmissible through established exceptions to the hearsay rule: 1. excited or spontaneous utterances 2. statements associated with conduct, and 3. statements of current subjective perception or intention. [18] At para. 14 of her reasons, Holmes J. continued: [14] McWilliams and Hill, at 7-73 to 7-75, explain that the first category allows for the admission of a statement made by a person soemotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded.

Such astatement must be contemporaneous to an unusual, overwhelming event that left the declarant under pressure or subject to such strongemotions as to guarantee the reliability of the statement. The status of the declarant is irrelevant; the statement made in the describedcircumstances may be that of the accused. Moreover, there is generally no requirement that the declarant be unavailable to testify, itbeing thought that the spontaneity of the statement makes it superior evidence.

Because admission of this type of evidence dependslargely on its perceived reliability, the trial judge must weigh the evidence and find it trustworthy before admitting it. [19] Holmes J. further noted at para. 17 that the admission of statements on the basis of the res gestae exception depends heavily ontheir inherent reliability, as demonstrated by their spontaneous character. She then cited legal and academic authorities for theproposition that the court must carefully scrutinize all the circumstances to ensure that there is no real possibility that the statement hasbeen concocted.

Lastly, at para. 22, she noted that the spontaneity of a statement is measured not according to time, but according to

opportunity. While a lack of time may often equate with lack of opportunity to concoct, that will not always be so. [ 20 ] In Pattison , the call was made almost immediately following the shooting. Holmes J. concluded, however, that the statements were inadmissible because Mr. Pattison had an opportunity to concoct them. The statements therefore did not meet the basic requirements of admission through the classic exception to the hearsay rule.

Accordingly, she held that the rule against prior consistent statements prevented their admission for the truth of their content. [ 21 ] The Court of Appeal affirmed the decision. Frankel J.A. held that admitting the statements would have allowed Mr. Pattison to sidestep the general rules against the admissibility of out-of-court statements. He said that it was clear that Mr.

Pattison sought to have the calls admitted for their truth to bolster his testimony in the witness box and to tender his own prior out-of-court statement as proof of the facts leading up to the shooting. [ 22 ] Similar considerations apply in this case. I find that the statement was not made by a person so emotionally overpowered by a contemporaneous event that the possibility of concoction or distortion can be disregarded. The accused did not make the statement when he first spoke to Constable Elgee, but rather only after he had been handcuffed and spent some time alone in the police cruiser.

At the time the statement was made, the accused knew that Mr. Alhedaib had been seriously injured. He had already expressed his concern about having a criminal record. He had ample time to concoct a response to the news of his arrest. The statement is not admissible for its truth under the res gestae exception. [ 23 ] Furthermore, in the circumstances of this case, the statement is not admissible to show the accused’s demeanor and emotional state at the time he made the statement. Constable Elgee has testified concerning the witness’s demeanor and emotional state. The statement is not probative to that issue.

DISPOSITION [ 24 ] I find that the accused cannot during his cross-examination of Constable Elgee introduce into evidence the statement he made to Constable Elgee when he was told he was under arrest. “R.B.T. Goepel J.” __________________________________ The Honourable Mr. Justice R.B.T. Goepel