r v. PAUL EVANS GORDON GRAY, 2021 QCCA 882

R. c. Gordon Gray 2021 QCCA 882 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006933-186 (500-01-127712-153) DATE: May 26, 2021 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. GENEVIÈVE COTNAM, J.A. GUY COURNOYER, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. PAUL EVANS GORDON GRAY RESPONDENT – Accused JUDGMENT [ 1 ] The Crown appeals the acquittals of the respondent on the charge of second degree murder and on the charge of assault with a weapon, rendered on December 6, 2018 by a jury presided over by the Honourable Mr. Justice James L.

Brunton of the Superior Court, District of Montreal. [ 2 ] For the reasons of Cournoyer J.A., with which Hogue and Cotnam, JJ.A. concur, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the verdicts of acquittal; [ 5 ] ORDERS a new trial. MARIE-JOSÉE HOGUE, J.A. GENEVIÈVE COTNAM, J.A. GUY COURNOYER, J.A. Mtre Marie-Ève Mayer DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Appellant Mtre Marie-Hélène Giroux ME MARIE-HÉLÈNE GIROUX AVOCATE For the Respondent Date of hearing: April 26, 2021 REASONS OF COURNOYER, J.A. [ 6 ] On September 27, 2015, Edwin Johnson was allegedly murdered by the respondent.

[ 7 ] Mr. Gray was twice tried for second degree murder and twice acquitted. [ 8 ] He was first acquitted on November 29, 2016, but our Court ordered a new trial on July 4, 2018. [1] [ 9 ] The second trial was held in November and December 2018. Mr. Gray was again acquitted on December 6, 2018. [ 10 ] The Crown now appeals the second acquittal on the grounds that the trial judge wrongly excluded an admission made by the respondent which was part of the recanted prior testimony of Ms.

Chandler, his former girlfriend, which prior testimony the trial judge admitted under the principled approach to the hearsay rule save for the respondent’s admission. [ 11 ] If the Court concludes that Ms. Chandler’s prior testimony is admissible for the truth of its contents, the Crown also contends that the testimony of Ms. Chandler at her sentencing hearing after she pleaded guilty to being an accessory after the fact to the murder of Mr. Johnson is, at least, admissible to challenge her credibility. [ 12 ] Mr. Gray essentially adopts the trial judge’s reasons as his own.

The admissibility ruling [ 13 ] The factual context for the first evidentiary ruling challenged by the Crown is provided by the trial judge in his judgment: [2] The respondent is charged with the second-degree murder of Edwin Johnson which occurred in the early morning hours of September 27, 2015 at Viger Park. He is also accused with the assault of Sonya Mihalick while threatening to use a weapon. [3] The Crown alleges that Mihalick owed the respondent money for drug debts. He arrived at Viger Park on September 27, 2015 accompanied by his then girlfriend, Tamara Chandler.

He confronted Mihalick and demanded his money. He threatened her with a knife before slapping her across the face. [4] The slap caused Mihalick’s boyfriend/spouse, Edwin Johnson, to tell the respondent to stop hitting his girlfriend. The respondent would have lunged at Johnson and struck him once in the neck area. No knife was seen at that moment and none was ever found. [5] Upon being hit, Johnson grabbed his throat, got up and began to stagger. He would die within minutes approximately 100 meters from the scene of the incident from a massive loss of blood.

The autopsy would reveal one puncture wound to the throat. The wound had been caused by a sharp object which severed the jugular vein and the carotid artery. [6] On October 18, 2016, Ms. Chandler pleaded guilty to being an accessory after the fact to the murder of Mr. Johnson. Her criminal responsibility arose principally from her having offered lodging to the respondent between September 27, 2015 and the date of his arrest on September 29, 2015. [7] Both during her sentencing hearing and during respondent’s first trial, the testimony of Ms.

Chandler confirmed the material aspects of what had happened at Viger Park. She added in both testimonies that she had received a confession from the respondent after the event to the effect he had “stabbed him a little bit”. [8] Called as a witness by the prosecution during a second trial of the respondent, Ms. Chandler has recanted her two previous testimonies. Her position during the second trial is that she had never gone to Viger Park in the early morning hours of September 27, 2015. She had lied at her sentencing hearing out of fear that she would receive a substantial sentence.

She had maintained the lie one month later during the first trial out of fear of the consequences of changing her version. [9] The Court granted the petitioner’s request to examine Ms. Chandler pursuant to paragr. 9(2) of the Canada Evidence Act (“C.E.A.”). When the petitioner moved later to invoke paragr. 9(1) of the C.E.A. , the Court inquired if it was contemplating eventually making a Bradshaw request ( R. v. Bradshaw , 2017 SCC 35 , [2017] 1 S.C.R. 865).

When the petitioner replied in the affirmative, it was agreed by all parties that the Court would hold a rolled-up voir-dire to examine both the 9(1) C.E.A. request and the Bradshaw request. [10] After hearing the parties, the Court rendered a

summary oral judgment with reasons to follow. It permitted the production of an edited version of the first trial testimony for the truth of its contents. It denied the production of the sentencing hearing testimony for the truth of its contents. [ 14 ] The trial judge admitted the recanted testimony of Ms. Chandler given at Mr. Gray’s first trial.

Nevertheless, he excluded the portion of her testimony in which she relayed his alleged confession to the effect he had “stabbed [the victim] a little bit”. [ 15 ] In his ruling, the trial judge concluded that the necessity and reliability (both procedural and substantive) requirements were satisfied but not with respect to the admission made by the respondent to Ms. Chandler: [32] The Court is of the opinion that an edited version of Ms.

Chandler’s first trial testimony can be produced to the jury as both necessity and threshold reliability are established on a balance of probabilities. [33] Necessity is self-evident as she has recanted that testimony. [34] Threshold reliability is established both by procedural reliability and substantive reliability. [35] Procedural reliability, with one caveat, is established by the following factors: - the first trial testimony was rendered under oath; - she was cross-examined, with one caveat, during the first trial;

- the audio of the first trial testimony can be replayed for the jury permitting them to at least hear her voice inflections and anyhesitations; - she can be the object of contemporaneous cross-examine during this trial. [36] The caveat the Court refers to is the fact that there was absolutely no cross-examination of Ms. Chandler concerning theexistence and content of the respondent’s alleged confession. Due to this fact, contemporaneous cross-examination on that issue wouldprovide little information for the jury to consider.

Borrowing from the criteria when examining substantial reliability, there is obviouslyno possible corroboration of this part of her testimony as she was alone when she allegedly received the confession. While the Courtbelieves that procedural reliability has been established (see R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740), it believes itnecessary to edit out those portions of the first trial testimony which speak to the existence and the contents of the respondent’s allegedconfession.

The Court believes that the prejudicial effect on the fair-trial rights of the respondent if the existence and contents of theconfession were entered into evidence for the truth of their contents outweigh the probative value of this evidence. [37] While the existence and contents of the confession were referred to before the jury during the 9(2) C.E.A. cross-examination bythe prosecution, the Court is confident that it can craft [mid]-trial directives to prohibit the jury from considering them during theirdeliberations. [38] Finally, before leaving procedural reliability, the availability of Ms.

Chandler will permit counsel to explore before the jurywhether she had access to the material described in paragraph 31 above thus reinforcing her present testimony that she is merelyparroting preliminary inquiry witnesses. [39] While not strictly necessary, the Court also believes that the first trial testimony, minus references to the existence and contentsof the respondent’s alleged confession, meets the criteria of substantive reliability. [40] Ms.

Chandler’s first trial testimony addresses the following material issues: - the respondent was present at Viger Park at the relevant moment; - he respondent was present due to the motive ascribed to him by Ms. Mihalick – the reimbursement of previous drug debts; - the respondent struck Ms. Mihalick; - the respondent struck the victim, Edwin Johnson, once in the neck area; - Johnson would be in serious physical distress shortly after the blow; - the respondent left on foot before Ms. Chandler, who followed shortly after. [41] The hearsay danger relates to Ms.

Chandler’s truthfulness. [42] Based upon the record produced during the voir-dire, the Court cannot accept Ms. Chandler’s explanation for her recantation andher ability to provide so many facts which largely correspond with the testimonies of Ms. Mihalick and Ms. Théberge. The Court rejectsher position that she would continue to lie at the first trial after having received a sentence which was more severe than she expected.The Court rejects her pretention that she could closely parrot the testimonies of Mihalick and Théberge after hearing them once, fourmonths prior to her change of plea.

Of course, contemporaneous cross-examine during this trial might provide additional facts which willcause the jury to accept her explanations and, as a result, reject her first testimony. But repeating, based on the record produced on thevoir-dire, the Court rejects these explanations at this moment. [43] The Court also notes that the motive ascribed to the respondent to engage Ms. Mihalick which begins the whole brief sequence ofevents is corroborated by the messages found in her telephone which are linked to his phone by the Rodgers Communications expert. [44] While both Ms. Mihalick and Ms.

Théberge are damaged witnesses, there is remarkable similarity between their account ofevents and Ms. Chandler’s testimony (see R. v. U. (F.J.), (SCC), [1995] 3 S.C.R. 764). On the basis of the proofpresented on the voir-dire, the Court finds, on a balance of probabilities that Ms. Chandler could not have provided such a detailed andsimilar account based upon hearing witnesses once, four to five months before her first testimony. [16] The trial judge excluded and redacted Mr. Gray’s confession to Ms. Chandler from the recanted statement of Ms. Chandler forthree reasons: (1) the lack of cross-examination of Ms.

Chandler on the alleged confession; (2) the absence of corroborating evidence;and (3) the prejudicial effect on his fair trial rights outweighs the probative value of the evidence. The absence of cross-examination of Ms. Chandler during the respondent’s first trial [17] Despite the considered opinion of the experienced trial judge, the absence of cross-examination of Ms. Chandler at therespondent’s first trial on his purported admission to her cannot justify the exclusion of her testimony on that subject. [18] The prosecution is right to argue that the respondent had full opportunity to cross-examine Ms.

Chandler during the respondent’sfirst trial.[2] The fact that he did not avail himself of the opportunity is of no moment. It was an error of law for the trial judge toconclude otherwise. [19] As stated by Lamer, C.J. in R. v. B.(K.G.), in the case of prior inconsistent statements, the lack of contemporaneous cross-examination, “is also the most easily remedied by the opportunity to cross-examine at trial”.[3] [20] Consequently, the “cross-examination of a recanting witness at trial [is] an almost perfect substitute for contemporaneous cross-examination”.[4]

[21] In any event, Mr. Gray had full opportunity to cross-examine Ms. Chandler at the first trial and further will have the sameopportunity at a new trial. Therefore, any lingering doubt about any unfairness with respect to the respondent’s fair trial rights mustsubside. The admissibility of the respondent’s admission to Ms. Chandler [22] Admissions or statements against interest are admitted against an accused without the need for corroborating evidence becausethey are inherently reliable.

It is either a hearsay exception or not hearsay at all.[5] [23] The trial judge did not take into account that the admissibility of the respondent’s admission to Ms. Chandler rested upon adifferent evidentiary foundation. With respect, it was a legal error not to do so. [24] In R. v. Evans, Sopinka J. explained the applicable rule: The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to disputewhether the evidence is hearsay at all.

The practical effect of this doctrinal distinction is that in lieu of seeking independentcircumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on thetheory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie tocomplain of the unreliability of his or her own statements.

As stated by Morgan, "[a] party can hardly object that he had no opportunityto cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems ofEvidence" (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civilcases subject to the special rules governing confessions which apply in criminal cases.[6] [25] Evans has consistently been followed by the Supreme Court.[7] [26] Hence, as stated by Charron, J. in R. v.

S.G.T., “[w]hen statements are made by an accused to ordinary persons, such as friends orfamily members, they are presumptively admissible without the necessity of a voir dire”.[8] [27] Therefore, when Ms. Chandler testified at the respondent’s first trial about the statement he had made to her, it was admissibleevidence.[9] It remained admissible evidence as part and parcel of the recanted prior inconsistent statement. [28] In R. v.

Foreman, Doherty, J.A. wrote that ”[a]dmissions, which in the broad sense refer to any statement made by a litigant andtendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis”.[10] [29] In R. v. Hart,[11] albeit in a different context, Moldaver, J. discussed the Mr. Big confessions of an accused from the perspectiveof the law applicable to the admissibility of an accused’s confessions to a person who is not a person in authority: [63] In cases where the Mr. Big technique has been used, the ensuing confessions have typically been received at trial.

Under theexisting case law, they have been admitted under the party admissions exception to the hearsay rule (see R. v. Evans, (SCC), [1993] 3 S.C.R. 653, at p. 664; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53). The admissibility of partyadmissions flows from the adversarial nature of our trial system, and the belief that “what a party has previously stated can be admittedagainst the party in whose mouth it does not lie to complain of the unreliability of his or her own statements” (Evans, at p. 664). [30] The British Columbia Court of Appeal in R. v.

Moir[12] concluded that the preceding analysis in Hart has not been overtaken byBradshaw. [31] After Bradshaw, in R. v. Skeete,[13] the Ontario Court of Appeal confirmed the continued relevance of Evans and Hart withrespect to the admissibility of admissions made by an accused as a specific exception to the hearsay rule. [32] In R. v. Lo,[14] Watt, J.A. considered whether the admissibility of an accused’s admission required independent circumstantialguarantees of trustworthiness.

He concluded that it did not: [80] In Evans, Sopinka J. said that the rationale for admitting evidence of admissions has a different basis than the other hearsayexceptions, if the evidence is hearsay at all. Admissions do not require independent circumstantial guarantees of trustworthiness. It isenough that the admissions are tendered against the party making them.

Thus, admissibility is grounded on the theory of the adversarysystem; that what a party has previously said (or done) can be admitted against that party in whose mouth it ill lies to complain of theunreliability of their own statements: Evans, at para. 24. [33] The recanted testimony of Ms. Chandler contained a confession by Mr. Gray. No necessity/reliability analysis had to beundertaken and independent circumstantial evidence of trustworthiness through corroboration was not required before it could beadmitted. [34] The factual circumstances in R v.

B.(K.G.) support this conclusion. [35] In that case, “[i]n their [videotaped] statements, the three young men told the police that the respondent had made statements tothem in which he acknowledged that he thought he had, or had, caused the death of the deceased by the use of a knife”.[15] Theyrecanted their prior statements at trial. [36] As noted by the authors of The Law of Evidence, the Supreme Court ruled that “the videotaped statements could be admissiblefor their truth because the youths were repeating an ‘admission’ made by the accused; admissions are a well-recognized hearsayexception”.[16] [37] There is no reason to come to a different conclusion with respect to the admissibility of the testimony of Ms.

Chandler at therespondent’s first trial regarding his admission to her that he had stabbed the victim “a little bit”.

[ 38 ] Procedural reliability was established concerning the respondent’s admission to Ms. Chandler. Moreover, the circumstances of her disclosure and the explanations for her recantation will be probed at the new trial. [ 39 ] Furthermore, to the extent that it is believed necessary, the substantive reliability of the admission was supported by corroborating evidence: forensic evidence of a laceration on the neck of the victim, pictures taken of the victim’s injuries and the testimony of many witnesses about the injuries.

The probative value of the confession and its prejudicial effect on the fairness of the trial [ 40 ] In R. v.

Hart , Moldaver, J. acknowledged the persuasiveness of an accused’s confession: “A confession provides powerful evidence of guilt, but only if it is true”. [17] He added that “[c]onfessions derive their persuasive force from the fact that they are against the accused’s self-interest”. [18] [ 41 ] Given the preceding analysis of the substantive admissibility of the respondent’s admission, there is no argument left to be made about the prejudicial effect on the fair trial rights of the respondent. [ 42 ] Prejudice is not the risk of conviction. [19] Evidence is prejudicial if its admission would threaten trial fairness, or if there is a real risk that the jury will misuse the evidence. [20] [ 43 ] The respondent will be able to challenge Ms.

Chandler’s testimony at the new trial. [ 44 ] Lastly, it is imprudent to rule on how the Crown can use, at the new trial, the testimony given by Ms. Chandler at her sentencing hearing. [ 45 ] The answers to be given may be affected by the dynamics at a new trial and the fact that the respondent’s admission to Ms.

Chandler is admissible evidence. [ 46 ] It is appropriate to err on the side of caution and leave it to the trial judge to evaluate the situation in the context of the evidence actually presented and the instructions given to the jury. [21] [ 47 ] In the end, I have no hesitation to conclude under the Graveline threshold [22] that the verdict would not necessarily have been the same had the respondent’s confession to Ms. Chandler been admitted. [ 48 ] For these reasons, I propose to grant the Crown’s appeal and order a new trial. GUY COURNOYER, J.A.