R. v. Munroe, 2016 MBPC 37

CITATION: R. v. Munroe , 2016 MBPC 37 Date: 07 11 2016 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Erika Dolcetti and Cathy Bator ) for the Crown ) and ) ) ) Jordan Munroe ) Taralee Walker and Matthew Raffey ) for the Accused ) ) ) ) Reasons for Decision delivered: ) July 11, 2016 ROLSTON P.J. [ 1 ] On a cold February night, Marcus Blacksmith exited his home at 99 Noble Avenue in his socks and without a jacket on. He ran across the back lane and collapsed at the end of his neighbour’s parking pad. Mr. Blacksmith had been stabbed. 911 was called and police were the first people on scene.

The following conversation occurred between Mr. Blacksmith and the officer: “What Happened?” “I got stabbed.” “Where did this happen?” “99 Noble.” “who stabbed you?” “I’ll tell you later.” “No, I need to know right now,” or, “No, tell me now.” “Jordan Munroe.” [ 2 ] Unfortunately, Marcus Blacksmith later died in hospital. [ 3 ] The Crown is seeking to tender the comment identifying Jordan Munroe as the assailant and the location of the stabbing in evidence pursuant to the dying declaration exception to the general rule that hearsay evidence is inadmissible.

The Crown is also seeking to tender a statement heard by Mr. Blacksmith’s girlfriend, Dana Munroe, in which Mr. Blacksmith was heard to say, “I’ve been stabbed,” before exiting 99 Noble Avneue moments before. The Crown argues that if these statements are not admissible as a known

exception to the hearsay rule, that they should be admitted pursuant to the principled exception on the basis that they are necessary andreliable. [4] Mr. Munroe concedes that in the case of the conversation with the police officer, Mr. Blacksmith was in actual danger ofdeath at the time, and that death ensued thereafter. However, Mr. Munroe argues that Mr. Blacksmith’s comment “I’ll tell you later,”indicates that when the comments were made, Mr. Blacksmith did not have a sense of impending death. Mr.

Munroe argues that thisfact calls into question whether the comments are reliable enough to be admitted as evidence for their truth. In respect of the comment,“I’ve been stabbed,” Mr. Munroe argues that the evidence of Dana Munroe is not reliable in and of itself, and the court should not acceptthat the statement was uttered at all. [5] In order to determine the issue of admissibility in this case, the court must re-examine the rationale for the general rule againsthearsay evidence, and then determine whether the hearsay evidence fits within the exception of dying declaration or res gestae.

Thecourt must also apply the more modern approach of determining whether the evidence is necessary and reliable and if so, whether itsprobative value outweighs any prejudicial impact that may result from its admission. Hearsay Generally [6] Hearsay evidence is evidence that is an out of court statement adduced to prove the truth of its contents where there is anabsence of contemporaneous cross-examination.

Hearsay is presumptively inadmissible. [7] In order to determine whether a hearsay statement should be admitted into evidence it is necessary to reflect on the rationalefor having a rule against hearsay in the first place. This rationale was succinctly described in R. v. Khelewon, 2006 SCC 57 at paragraph2: As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this generalprinciple.

While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsaystatements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquireinto that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes,exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts.

Hence, the rule against hearsay is intended toenhance the accuracy of the court’s findings of fact, not impede its truth-seeking function. [8] In certain circumstances, jurisprudence developed in recognition of the fact that some hearsay evidence can be admitted wherethe context of the statement itself alleviated the concerns surrounding exclusion, and exclusion of the evidence impeded the fact findingfunction of the court.

Exceptions to the hearsay rule developed, and eventually evolved to a principled approach that is recognizedtoday: Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving theevidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary toresort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents aretrustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth.

If the proponent of the evidence cannotmeet the twin criteria of necessity and reliability, the general exclusionary rule prevails.

The trial judge acts as a gatekeeper in makingthis preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth tothe fact finder. (See Khelewon, supra.) [9] In the end, there is little distinction between the traditional hearsay rule and the principled approach, in that both strive toachieve the same end; to admit evidence where the circumstances establish that the statement is trustworthy or the circumstances allowthe trier of fact to sufficiently assess the statement’s worth.

If anything, the principled approach allows for a more versatile applicationas opposed to being the slave to the precise dictates of the pigeonholed exceptions. Dying Declarations [10] The dying declaration is a well established but little used exception to the hearsay rule. The premise for admissibility followsthe principled approach. That is to say, where the declarant: • Has been in actual danger of death; • Has a genuine belief that his or her death is imminent; • And death subsequently ensues; any relevant declaration made as to the cause of death is admissible hearsay (R. v.

Laurin (No.1), (1902) (QC CQ), 5C.C.C. 324). [11] What makes such a statement inherently reliable? The notion of one meeting one’s Maker has traditionally been considered toequate to one taking an oath to tell the truth in dire circumstances and therefore inherently reliable. Accordingly, where the declarant isnot in contemplation of death, the impetus to be truthful is less pressing (see R. v. Laurin (No. 4), (1902) (QC CQ), 6C.C.C. 104). [12] The challenge for the court in the rigid dying declaration rule is the determination of the bona fide belief in pending death (SeeR. v.

Sunfield, (1907) 10 O.W.R. 1010). [13] This challenge for the court is exemplified in the present case. The defence concedes that Mr. Blacksmith was in actual dangerof death and that death ensued within the requisite time frame to trigger the dying declaration exception. The defence contends that thecomment, “I’ll tell you later,” demonstrates that Mr. Blacksmith did not believe that death was imminent. The Crown responds that if

that is the case, the fact that the officer responded, “No, I need to know right now,” or “No, tell me now,” informed Mr. Blacksmith ofhis dire circumstances. [14] There are several

interpretations possible from the conversation. It could be that Mr. Blacksmith suddenly became aware thathe was about to die after seeing the face of the officer and hearing the officer’s comment. It is equally possible that Mr. Blacksmithrecognized the fact that the officer wished to investigate the matter urgently so as to detain the assailant. It could be, although it isunlikely that Mr. Blacksmith felt threatened in some way by the officer pressing him for the answer. At the end of the day, the courtcannot speculate as to what motivated the sudden change in motivation for Mr.

Blacksmith, and cannot determine on a balance ofprobabilities that the comments were made in contemplation of death. [15] Accordingly, the comments made to the officer do not fit with the traditional hearsay exception and therefore are not admissibleas a dying declaration. The Principled Approach [16] Does that and should that end the matter? If the court were to adhere to the strict approach, the truth seeking function of thecourt would be stymied by the strict rule.

The court must fulfill the gate keeping role to determine whether the finder of fact shouldultimately determine whether the comments should be relied upon. In other words, the court must determine whether the context of thestatements creates an inherent reliability or whether the circumstances permit the trier of fact to sufficiently assess a statement’s worth. [17] Some consideration of the remaining evidence is necessary.

This approach was endorsed in Khelawon, supra at paragraph 54and 55: Much of the confusion in this area of the law has arisen from this attempt to categorically label some factors as going only to ultimatereliability. The bar against considering “corroborating or conflicting evidence”, because it is only relevant to the question of ultimatereliability, is a further example. Quite clearly, the corroborative nature of the semen stain in Khan played an important

part inestablishing the threshold reliability of the child’s hearsay statement in that case. [18] The Court went on to clarify that “the relevance of any particular factor will depend on the particular dangers arising from thehearsay nature of the statement and the available means, if any, of overcoming them”, and that in “some cases it is not possible to put theevidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth andaccuracy” (see Khelawon, supra at paragraph 63). [19] In the present case, the circumstances are such that the truth of the statements can be tested without Mr.

Blacksmith to givetestimony. Three people were in the presence of Mr. Blacksmith at 99 Noble Avenue on the night he was stabbed; Devin Dixon, DanaMunroe, and the accused, Jordan Munroe. Two of those people testified at the preliminary inquiry. Mr. Dixon testified that he leftbefore the stabbing occurred. Dana Munroe testified that she was not in the room when Mr. Blacksmith was stabbed, but did indicatethat Mr. Blacksmith and Jordan Munroe were at the top of the landing in the home just prior to Mr. Blacksmith running out the door. Blood was located in the same area. DNA of Mr.

Blacksmith was located on the pants of Jordan Munroe. Mr. Blacksmith ran out of thehome without his jacket and shoes, which were also located on the landing where Dana Munroe indicated Jordan Munroe and Mr.Blacksmith were located prior to Mr. Blacksmith’s rushed exit from the home. These circumstances in and of themselves speak to thereliability of the statement made by Mr. Blacksmith. Whether the trier of fact accepts the statement as capable of convicting JordanMunroe at the end of the day is a determination for that trier of fact on the whole of the evidence.

However, to exclude the comments inthe circumstances would impede the truth seeking function of the court. [20] Accordingly the comments made to the officer are admissible hearsay. Res Gestae or Spontaneous Utterance [21] The Crown also seeks to tender a statement allegedly made by Mr. Blacksmith that was overheard by Dana Munroe while Mr.Blacksmith and Jordan Munroe were on the landing just prior to Mr. Blacksmith quickly exiting 99 Noble Avenue. Mr. Blacksmithapparently uttered, “I’ve been stabbed” at that moment. [22] Res Gestae or spontaneous utterance has been succinctly defined in R. v.

Peterpaul, (ON CA), [2001] O.J.No. 100 ONCA at paragraphs 26 and 27: The second ground relied on by the Crown to support the trial judge’s instruction is that the complainant’s statement was admissible forthe truth of its contents as a spontaneous utterance. In other words, the Crown relies on the traditional res gestae exception to thehearsay rule.

That exception provides: This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervousexcitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is aspontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.

Since this utterance ismade under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interestcould not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least aslacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observedby him; and may therefore be received as testimony to those facts. Wigmore on Evidence, 3rd ed. Vol. 6 (Toronto: Little Brown and Co.), at

Section 1747

[ 23 ] Counsel on behalf of Jordan Munroe in the present case does not argue against the statement on the basis that if it did happen, it was not a spontaneous utterance. The contest is in respect of the reliability of the memory of Dana Munroe. Dana Munroe by her own admission was extremely intoxicated when the incident occurred. Counsel suggests that there is not circumstantial guarantee of trustworthiness based upon Ms. Munroe’s state that the statement was even made by Mr. Blacksmith. In other words, counsel argues that Ms. Munroe should not be believed when she testifies that she remembers Mr.

Blacksmith utter, “I’ve been stabbed.” [ 24 ] With respect, the credibility of Dana Munroe, which is a live issue for trial, can be tested by the trier of fact. In other words, whether or not those words were uttered is an issue that can be cross-examined upon. The trier of fact can determine whether Ms. Munroe’s recollection is trustworthy enough to be relied upon. That is not the issue before this court.

The issue at this stage is whether or not the statements form part of the res gestae or whether they can be accepted under the principled approach. [ 25 ] The circumstances suggest that at the precise moment before Mr. Blacksmith ran from the house, he uttered, “I’ve been stabbed.” Within minutes he was found with stab wounds. Blood was located in the area from where Mr. Blacksmith would have been located when the statement was made.

This qualifies as an utterance that was “a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock” of being stabbed. [ 26 ] Accordingly the comment, “I’ve been stabbed,” are an admissible exception to the hearsay rule as part of the res gestae . Probative Value vs. Prejudicial Effect [ 27 ] Before admitting the statements, it is necessary to determine whether the probative value of the statements outweighs the prejudicial effect of the admission of the evidence.

The evidence is clearly relevant and germane to the central issue in the case, the identity of the assailant. As stated, the purpose of the hearsay rule is to guard against admission of evidence that cannot be tested. In the case at bar, Jordan Munroe will have the opportunity through cross-examination of the various witnesses to test the evidence as to the circumstances surrounding the stabbing. The prejudicial impact to Mr. Munroe is limited somewhat by this ability and is outweighed by the probative value of the evidence.

Conclusion [ 28 ] The conversation with the officer in the back lane of 99 Noble Avenue is admitted in its entirety on the basis that it is relevant, necessary and reliable evidence and therefore admissible hearsay under the principled approach. [ 29 ] The comment, “I’ve been stabbed,” is admitted on the basis that it forms part of the res gestae of the incident and is therefore admissible under the excited utterance exception to the hearsay rule. “Original signed by:” _________________________ ROLSTON P.J.