2012 NBCA 21, 2012 NBCA 21

COURT OF APPEAL OF NEW BRUNSWICK 2-11-CA MARKUS ALEXANDER SCOTT APPELLANT MARKUS ALEXANDER SCOTT APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Scott v. R., 2012 NBCA 21 Scott c.

R., 2012 NBCA 21 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Provincial Court: February 26, 2010 Appel d’une décision de la Cour provinciale : Le 26 février 2010 History of Case: Historique de la cause : Decision under appeal: February 26, 2010 (Unreported) Décision frappée d’appel : Le 26 février 2010 (Inédite) Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard and judgment rendered: September 20, 2011 Appel entendu et jugement rendu : Le 20 septembre 2011 Reasons delivered: March 1, 2012 Motifs déposés : Le 1 er mars 2012 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green Counsel at hearing: For the appellant: David M. Hitchcock, Q.C. For the respondent: Michael Hall Avocats à l’audience : Pour l’appelant : David M. Hitchcock, c.r. Pour l’intimée : Michael Hall THE COURT The appeal is allowed. The verdict is set aside and a new trial is ordered. LA COUR L’appel est accueilli. Le verdict est annulé et la tenue d’un nouveau procès est ordonnée.

The judgment of the Court was delivered by RICHARD J.A. [1] On February 26, 2010, a judge of the Provincial Court convicted Markus Alexander Scott of the indictable offence of assault causing bodily harm (s. 267(

b) of the Criminal Code ), and, on a later date, sentenced him to two months in jail to be served intermittently. Mr. Scott appeals his conviction. In addition to setting out grounds of appeal that allege errors of law, he seeks to adduce evidence on appeal in the form of affidavits from two individuals, one of whom admits to having been personally involved in the barroom-type altercation that led to Mr. Scott’s conviction and to being the one who might have caused injury to the complainant. The testimony of these individuals, if believed, might cast significant doubt on Mr. Scott’s guilt.

However, the fresh evidence application was problematic in two significant respects. First, the existence of these two witnesses was known to Mr. Scott before trial and he chose not to inform his lawyer. Second, Mr. Scott was less than candid with the Court in the affidavit he filed in support of his application to adduce evidence on appeal. In other respects, the proposed new evidence meets the

criteria for admissibility because the testimonies of the two individuals would be relevant, credible and potentially determinative. [2] After hearing the application to adduce new evidence, including cross-examination of Mr. Scott and the two new witnesses, we reserved our decision and proceeded with the hearing of the appeal. Following the hearing, we allowed the appeal from the bench, set aside the conviction and ordered a new trial. We indicated that reasons for our decision would follow.

These are my reasons. [3] The appeal was allowed because of an error in law alleged in one of the grounds of appeal that is independent from the application for leave to adduce evidence on appeal. As a result, it is not necessary for us to rule on that application. [4] The charge against Mr. Scott arose out of an incident that occurred at a Fredericton nightclub on June 7, 2008. It involved people who had consumed alcohol, and occurred on a crowded deck outside the nightclub. A first altercation between Mr. Scott and the complainant was broken off by a bouncer.

However, the complainant reports that at some later point he was hit across the back of the head so hard his hat flew off and that Mr. Scott then stepped on the front of his leg near his foot, causing him to fall when he tried to retaliate. From that point, the complainant needed assistance. The ambulance was called and the complainant was taken to the hospital, where he underwent open reduction surgery to insert a plate and screws to repair a broken bone in his ankle. [5] Mr. Scott was charged with assault causing bodily harm.

At trial, witnesses gave differing accounts of the events leading to the bouncer’s intervention, but no one actually saw what occurred when the complainant was injured. The complainant alleged Mr. Scott was his assailant, while Mr. Scott testified he was nowhere near the complainant after the bouncer had separated the two. Thus, the key issue at trial pitted the testimony of the complainant against that of Mr. Scott, although the assessment of credibility would also take into account how their testimonies harmonized with those of others regarding the events that preceded this alleged second confrontation.

In the end, the trial judge believed the complainant and was not left with a reasonable doubt by the testimony of Mr. Scott or by the evidence as a whole. [6] At the outset of the trial, Crown counsel tendered for admission certain medical reports that outlined the nature and extent of the complainant’s injuries. These records were admitted into evidence with Mr. Scott’s consent and included notes by an ambulance attendant and by an attending physician

that were obviously made in the course of their employment shortly after they had assessed and treated the complainant. In these notes, the complainant is reported to have said he was involved in an altercation outside a bar but he is also reported to have told the physician that he did “not recall the exact mechanism of injury” and the ambulance attendant that he had “rolled” his right ankle and felt a “POP” in the ankle. The notes are also replete with entries showing the very intoxicated state of the complainant while at the hospital.

He was noted to be under the influence of alcohol, to have become belligerent with the medical staff and pushed some away and to have grabbed a nurse by the shirt, requiring security to be called. [7] In arguments at trial, defence counsel sought to challenge the complainant’s credibility by pointing to the entries in the medical reports the prosecution had adduced into evidence and in which the complainant was reported as having said he did not recall the exact mechanism of his injury and that he had rolled his ankle and felt a “pop” in it.

Crown counsel objected, stating that these statements amount to hearsay and that they could not be considered by the Court even to determine the credibility of the complainant. Crown counsel also argued the medical reports were adduced solely to prove the bodily harm component of the offence. [8] In her decision, the Provincial Court judge refused to consider the impugned portions of the report, ruling that they constituted hearsay because “[t]hese witnesses were not at the scene and did not testify”, and because they were accepted as an exhibit “to prove the type of injury sustained”.

This particular ruling is the subject of one of the grounds of appeal and is the reason underlying our decision to allow the appeal, set aside the verdict and order a new trial. [9] The medical reports in question were admitted into evidence by consent, thereby relieving the Crown of having to prove their authenticity and relevance. It is trite law to point out that once these are admitted, both inculpatory and exculpatory entries are properly before the court.

Obviously, the reports were admitted in evidence to prove the truth of their content, that is, to prove the observations made by the various medical and nursing personnel as well as the diagnosis of the complainant’s injuries and the treatment given. The effect of admitting the reports is that their authors will not be required to attend court to testify.

Instead, both parties agree the judge can rely on what is stated in the document since the content will be unchallenged. [10] However, while the admission of the document dispensed with the need to call the authors of the notes to testify in order to relate their first- hand knowledge of what is contained in the report, this does not necessarily abrogate the hearsay rule with regard to those entries in respect of which the author has no first-hand knowledge.

[11] At its core, hearsay evidence is an out-of-court statement meant to prove the contents of what was said. Here, the admission of the medical reports, by consent, dispensed with in-court proof of first-hand observations made by the authors of the entries. No one challenges the truth of what they report to have observed or done. This does not mean, however, that any entry they made of anything they heard can equally be considered for the truth of its content. That would offend the hearsay rule.

Let me explain by reference to the ambulance call report in this case. [12] The admission of the ambulance report by consent relieved either of the parties of having to call the ambulance attendant who had first-hand knowledge of the observations he made and what he personally did when he attended on the night in question. Had the attendant been called to testify, he undoubtedly would have been asked to describe what he observed and what he did. He might also have been asked to relate what he heard. Too often, a question like this is immediately objected to as constituting inadmissible hearsay.

However, frequently the objection is not well-founded. If someone tells the ambulance attendant something, then, subject to the requirement of relevance , the attendant can restate what he had been told, not to prove the truth of the contents of the communication, but solely to prove that it was said. Thus there are two key elements that might make what the ambulance attendant heard admissible: (1) the purpose of the evidence, i.e. to prove only that the statement was made; and (2) relevance. [13] In the present case, the complainant told the ambulance attendant he had rolled his ankle.

This constitutes an out-of-court statement. Unless it falls into one of the exceptions of the hearsay rule or is otherwise admissible through what is called the principled approach (weighing necessity and reliability), such a statement is not admissible to prove that the complainant did in fact roll his ankle. On the other hand, if relevant, the statement can be admitted not to prove the complainant actually rolled his ankle, but to prove that he told the ambulance attendant he rolled his ankle. Relevance is the key. Many times, what others have said about a situation is irrelevant to determinations of fact.

However, when credibility is the key issue at trial, as here, what a person said to another can be most relevant where the testimony at trial is significantly at odds with the original declaration. In the present case, the declaration to the ambulance attendant was relevant, not to prove how the complainant hurt his ankle, but to prove inconsistency in his descriptions of how he sustained the injuries, so as raise an argument that his testimony at trial may not be truthful. [14] In sum, this case was about credibility.

Evidence was adduced to show that on the night in question the complainant told the ambulance attendant he rolled his ankle, and later told a physician he could not describe the exact mechanism of how his injury occurred. This evidence was admissible to show inconsistency between these statements and the testimony he was giving at trial. It was evidence that had to be weighed in determining his credibility and in making the ultimate decision whether the judge was left with a reasonable doubt.

In my view, the judge erred in law in characterizing the evidence as inadmissible hearsay and in stating the medical reports could only be used to prove the type of injury sustained. The medical reports, once admitted, showed the complainant had made a prior inconsistent statement and it was quite open for the defence to challenge the

credibility of the complainant by making reference to these. [15] In my respectful view, the trial judge erred in refusing to consider the reports in question in assessing the complainant’s credibility. This error is not insignificant. This is not a situation where the proviso contained in s. 686(1)( b ) (iii) of the Criminal Code could be applied. It is for this reason that we were of the view to allow the appeal, set aside the verdict and order a new trial. _____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ________________________________ B. RICHARD BELL, J.A. ________________________________ BRADLEY V. GREEN, J.A.