R v Westcott, 2023 ABCJ 205

In the Alberta Court of Justice Citation: R v Westcott, 2023 ABCJ 205 Date: 20230915 Docket: 230245672P1 Registry: Calgary Between: His Majesty the King - and - Kyle Dale Westcott Ruling of the Honourable Justice B.C.

Stevenson CHARGES [ 1 ] The accused is charged with six criminal offences, all allegedly occurring in northeast Calgary on or about March 14, 2023. • Count 1 – assaulting Kara Pratzer, contrary to s 266; • Count 2 – threatening to use a weapon while committing an assault on Kara Pratzer, contrary to s 267 (A); • Count 3 – threatening to cause death or bodily harm to Kara Pratzer, Contrary to s 264.1(1)(A); • Count 4 – threatening to cause death or bodily harm to Jennifer Pratzer, contrary to s 264.1(1)(A); • Count 5 - threatening to cause death or bodily harm to Aviah Pratzer, contrary to s 264.1(1)(A); and

• Count 6 – unlawfully confining Kara Pratzer, contrary to s 279(2). PROCEEDINGS [ 2 ] By agreement, the trial evidence was held in the context of a blended voir dire. [ 3 ] The Crown called six witnesses. The alleged victim did not appear. [ 4 ] The Defence did not call evidence on the voir dire.

BACKGROUND [ 5 ] Calgary Police Service Constable Mark Rutherford, a sixteen and a half year veteran, was patrolling in District 4 (Northeast Calgary) at approximately 10:10 on the morning of March 14, 2023. [ 6 ] He was driving toward 68 Abergale Way N.E., a residence known to the police for drug activity, stolen property, and general disorder. [ 7 ] As he approached, he noticed a female standing next to a vehicle and appeared to be speaking to the driver.

He also noted that she appeared to be agitated and distressed. [ 8 ] The female was not wearing any footwear, which Constable Rutherford thought unusual as it was a cold morning and there was snow on the ground. [ 9 ] The officer checked the vehicle on CPIC, and it was listed as being registered to a stolen vehicle. [ 10 ] The female then approached his police vehicle and told him that she had the victim of a serious crime at 68 Abergale Way N.E. [ 11 ] He asked her to get into his vehicle and drove to a nearby parking lot where he could interview her. [ 12 ] He then turned on a video recorder in his vehicle.

The video showed the female to be crying, and Constable Rutherford testified that she couldn’t provide a coherent version of what had happened to her. [ 13 ] The officer noted an injury above the female’s left eye, and two photos were taken. The photos were marked as Exhibit A in the voir dire. She displayed no other injuries. [ 14 ] In the meantime, the vehicle that had been identified as stolen drove away. [ 15 ] The actions of the female while in the police vehicle were recorded for 48 minutes.

Constable Rutherford was present for most of the recording, except when he left the vehicle to get some footwear for the female. [ 16 ] Throughout the recording the female made at least four phone calls and appeared to be very emotional. [ 17 ] Constable Rutherford took her to the District Office where he convinced her to provide a written statement. The female appeared to be more composed. [ 18 ] The video and the statement were marked as Exhibit B in the voir dire. [ 19 ] In Mr.

Walton’s cross-examination of Constable Rutherford, it was clear that there were other persons in 68 Abergale Way N.E. when the alleged assault took place in that residence, including the accused, the alleged victim and a male by the name of Ray Robia, allegedly an eye-witness to the incident. [ 20 ] In her statement the alleged victim stated that she slept in the basement from midnight until the next morning, when she unlocked the door and left the house at 10 A.M. “or thereabouts”. [ 21 ] The prosecution called four civilians who were in 72 Abergale Way N.E., who shared a common wall with 68 – Emily Patterson, Steven Piercy, Megan Hein, and Matt Coffey. [ 22 ] All four testified that they heard a woman screaming and crying, and saying “stop”, or “stop doing that”, or “don’t do that”, and a male voice saying, “go to the basement” or “get down to the basement”, or “get back to the basement”. [ 23 ] Matt Coffey called the police. [ 24 ] In her statement she identified the accused as the person who assaulted and confined her. [ 25 ] A “Feeney” warrant was applied for and with the assistance of a police “tac” team the accused was arrested and charged. [ 26 ] With respect to the admissibility of the recording and statement, which were admittedly “hearsay”, the prosecution and defence took opposing positions.

Crown Position [27] Ms. Amin, Crown Counsel, submits that the recording in the police vehicle and the statement taken later by ConstableRutherford should be admitted as res gestae. [28] She states that if I find that if the recording and statement to be res gestae, then they are presumptively admissible on theprincipled hearsay exception of necessity. [29] She submits that the recording in the police vehicle and statement should be admitted for the truth of its contents, as it fallswithin the res gestae “excited utterance” exception to the hearsay rule. [30] In support of her position Ms.

Amin relies on three decisions of the Alberta Court of Appeal – R v Demedeiros (2018), ABCA 241 R v D (LD) (2014), ABCA 218 R v Sylvain (2014), ABCA 153 [31] She also relies on the Ontario Court of appeal decision of R v Khan (1988), ONCA 69. [32] In Sylvain, at paras. 30-32, the Court states: “[30] The starting point is this. As a general principle, res gestae statements are admissible as an exception to the hearsay rule: R v Kahn(supra) also at (1988) (ON CA), 42 CCC (3d) 197, 27 OAC 142 (Ont CA): Ratten v R (1971), [1972] AC 378(Australia PC) at 389-391.

Res gestae as a category has been criticized as being an unhelpful generality that actually encompasses several discrete exceptions to the hearsay rule: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th Ed (Toronto: Irwin Law,2011) [Paciocco and Stuesser] at 173. That said, the particular exception involved here relates to “excited utterances” as explained byPaciocco and Stuesser, supra at 177: “A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while thedeclarant is under the stress of excitement caused by the event or condition.” 31.

The rationale for admitting a statement in this category for the truth of its contents is that the stress or pressure under which thestatement was made can be said to safely discount the possibility of concoction: see Klippenstein v R (1981), 1981 ABCA 14 ,26 AR 568 (Alta. C.A.) at para 17 (1981), 57 CCC (2d) 393 (Alta CA); R v Clark (1983), (ON CA), 42 O.R. (2d) 609(Ont. C.A.), at 623, (1983), 7 C.C.C. (3d) 46 (Ont. C.A.); R v Slugoski (1985), (BC CA), 17 CCC (3d) 212 (BCCA), at227, (1985), 43 CR (3d) 369 (BCCA).

To avoid the prospect of fabrication, the statement should be reasonably contemporaneous withthe alleged occurrence. However, exact contemporaneity with the event is not required: Clark, supra at 623; Khan, supra at para 25; R vDakin (1995), (ON CA), 80 OAC 253 (Ont. CA) at para 20, 1995 CarswellOnt 4827 (Ont. CA). 32. The excited utterances exception under the common law is also consistent with the principled exception to the hearsay rule: R vMackenzie, 2011 ONSC 6770 (Ont. SCJ) at para 10, 2011 CarswellOnt 12578 (ON SCJ).

The reliability of “excited utterances” comesfrom the absence of an opportunity to concoct a story. It is true that the mere making of a 911 call does not necessarily bring that callwithin the “excited utterances” exception. That is why a trial judge must assess all the relevant evidence relating to the call, including the content, timing and circumstances of a911call, and determine whether in light of all the evidence, it properly falls within the “excited utterances” category.” [33] Ms.

Amin also references the Alberta Court of Appeal’s adoption at paragraph 16 of their decision in R v D (LD), (supra) ofthe criteria for the “excited utterances” as stated at paragraph 88 of the Ontario Court of Appeal decision of R v Nicholas (2004), (ON CA), 184 OAC 139; 182 CCC (3d) 393 (ON CA): “16. Excited utterances have been received in instances such as when made in the course of a 911 telephone call: (Sylvain and R vVilleda, 2011 ABCA 85, 502 A.R. 83 (Alta. CA), at para 22.

The criteria for the admission of excited utterances were summarized bythe Ontario Court of Appeal in R v Nicholas, (supra) at para 88: “[A] spontaneous statement made under the stress of pressure of a dramatic or startling act or event and relating to such an occasion maybe admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoctionor deception can be safely discounted.

The statement need not be made strictly contemporaneous to the occurrence so long as the stress orpressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility ofsuch statements is dependent on the possibility of concoction or fabrication. Where the spontaneity is clear and the danger of fabricationis remote, the evidence should be received.” [34] A portion of Ms. Amin’s arguments focused on the words “reasonably contemporaneous”, and she submits that the courtshave not set down a fixed time frame to quantify reasonable time.

Defence Position [35] Mr. Walton, Counsel for the accused, submits that the hearsay statements are not admissible as res gestae nor under theprincipled exceptions of necessity and reliability.

[ 36 ] He refers to my colleague Justice Pepper’s decision in R v YK (2019), ABPC 249, and the questions she posed in her judgement at paragraph 20: [ 37 ] “The admissibility of a spontaneous statement is assessed by a number of factors. These factors can be distilled into the following analytic framework: 1. Is there a shocking event? (

a) Is there evidence corroborative of a shocking event? 2. Is the statement contemporaneous to the shocking event? 3. Are the circumstances under which the statement is made such that the possibility of concoction or distortion is remote? (

a) What is the emotional state of the declarant? (

b) Is there evidence of reasoned reflection or was the mind of the declarant dominated by the event? (

c) Is the statement made in response to suggestive questions? (

d) Is there a demonstrated motive to fabricate? [ 38 ] With respect to the first question, Mr. Walton submits that there is not, and I quote his submission found in the transcript at page 50, lines 13 – 26: “….we have the complainant’s hearsay statement that she was kicked, punched, and she had her face stomped on, very serious allegations, with photographs which, in my submissions, show no visible injuries. She doesn’t have bruises. She doesn’t have cuts. The officer’s testimony was that there was swelling around the eye, which I would submit is not actually visible in the photographs.

It appears that her eyes were puffy from crying, which would line up what happened in the vehicle. We don’t have independent witnesses here. We have the possibility of, as you heard, Ray, who witnessed this, but he wasn’t interviewed by the police or called at trial. We have a civilian witness, the four who testified. They, of course, didn’t see what occurred in the apartment. They heard a disturbance. She heard, slamming, screaming, a mention of the basement, but we don’t know whose voices those were.

What we --- what would have been beneficial here is to have a witness who was actually present in that apartment, 68, and witnessing what was going on.” [ 39 ] With respect to the second question, I again refer to Mr. Walton’s submissions; Transcript, page 50, line 35 – page 51, line 7: “The second question from Justice Pepper’s framework is: Is the statement contemporaneous to the shocking event? [ 40 ] And my submission is no.

We know the altercation itself, the threats, the alleged assaults, the locking in the basement occurs around sometime at midnight, and the hearsay statement in this case is given at 10:00 in the morning. We have ten hours elapsing. I’ll refer to Y.K. at paragraph 24. And my friend went through this. Again: “The statement need not be strictly contemporaneous to the event as long as the pressure created by the event is ongoing. And that’s really the --- the distinction here for this case is, is that pressure still ongoing? My submission is no.” [ 41 ] In his submissions, Mr.

Walton then turns to the possibility of concoction and or distortion question and it’s four sub- headings. [ 42 ] He agrees that the declarant was clearly emotional, distraught and crying. In his words “she seems unhinged”. [ 43 ] With respect to the issue of “evidence of [a] reasoned reflection or was the mind of the declarant dominated by the event”?, Mr. Walton had this to say: (Transcript, page 51, lines 21-31). “Ten hours elapsed, and she fell asleep during this.

So, my submission is the mere fact she’s fallen asleep after this has occurred shows it’s not a shocking event, or, at the least, shows the pressure created by the event she alleges happened was no longer ongoing. She was able to calm down enough to fall asleep in the same room with the person who attacked her, and that evidence comes from the statement itself. She says she speaks to Mr. Westcott in the morning and says she’s going to the bathroom but instead leaves the basement. She was able to unlock the basement door by herself. The—locks were on the other side she was in.

She spoke to other parties before speaking to the police. People in the truck, we don’t know how long that conversation actually occurs for. She left without her shoes, but she was calm enough to retrieve a cell phone before leaving – the home.” [ 44 ] Mr. Walton does not submit that the statement was in response to suggestive questions by Constable Rutherford, and he states that there is no evidence of “motive to fabricate”. [ 45 ] On the res gestae issue, Mr.

Walton provided the Ontario Superior Court decision of R v Adekunle , 2022 ONSC 5552 , where the Court held that the passage of 12 hours failed to meet res gestae concept. [ 46 ] With respect to the principled approach as an exception to the hearsay rule, and the prerequisite finding of necessity, Mr.

Walton references the Alberta Court of Queen’s Bench decision of R v Nepoose (2020), ABQB 438, as well as my colleague Justice Legrandeur’s decision of R v Heavyrunner , 2004 ABPC 154 . [ 47 ] However, he concedes that the evidence of Constable Rutherford concerning attempts to have the declarant attend has been made out. [ 48 ] On the other hand, with respect to the requirement to find reliability to justify admission, Mr.

Walton submits that the circumstances do not support either procedural nor substantive reliability. [ 49 ] With respect to procedural reliability, he submits that (1) the statement was not made under oath of affirmation; (2) it is not a KGB statement; and (3) there has been no full opportunity to cross-examine the declarant on the truth of its contents. [ 50 ] With respect to substantive reliability, Mr.

Walton again points out (1) no corroborating evidence; (2) no eyewitness; (3) no injury or injuries to be expected from the declarant’s description of what happened in her statement, and (4) multiple other people in the home at the time of the alleged occurrence.

RULING [ 51 ] The declarant’s statement, both written and recorded, is not spontaneous nor contemporaneous with the alleged event; [ 52 ] Furthermore, I am not satisfied that the “shocking event” continued in the mind of the declarant, even taking into account her emotional state in the police vehicle; [ 53 ] The statement’s revelation that the declarant fell asleep in the basement beside her alleged assailant for several hours before leaving the residence strongly suggests that in the mind of the declarant the shocking event complained of no longer dominated her thought processes; [ 54 ] The description of the assault and the photographs of the declarant do not support that description; [ 55 ] The reliability of the contents of the statement has not been made out.

Conclusion: [ 56 ] The statement – written and recorded – does not meet the “excited utterances” aspect of the res gestae of the alleged event; [ 57 ] The contents of both are not reliable or trustworthy. [ 58 ] To admit the recorded and written statement would compromise the fairness of the trial. [ 59 ] They are inadmissible. Delivered orally on the 13 th day of September, 2023. Dated at the City of Calgary, Alberta this 15 th day of September, 2023. B.C. Stevenson A Justice of the Alberta Court of Justice Appearances:

Tahira Amin for the Crown Matthew Walton for the Accused