R. v. O.(D.), 2019 MBPC 68

CITATION: R. v. O.(D.), 2019 MBPC 68 Date: 2019 10 29 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Erika Dolcetti & Melissa Carlson ) for the Crown and ) ) O.(D.) ) Wendy Martin White ) for the Accused ) ) ) Reasons for Decision delivered: ) October 29, 2019 Restriction on Publication: Please note that the Youth Criminal Justice Act , section 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act, applies to this judgment.

FREDERICKSON P.J. [ 1 ] On September 24, 2018, at approximately 3:50 p.m., D.G. was in a brief, but ultimately fatal, altercation with another male. It occurred on the east sidewalk of the McPhillips Street underpass. The assailant left the scene, heading north. D.G. turned towards a man who was approaching him, saying that he had been stabbed, lifting his shirt to show the man his stab wounds. He urgently asked the man to help him. [ 2 ] This man, as well as another who was further south on the same sidewalk, immediately began assisting D.G.

Construction workers who were working in the southbound lanes of McPhillips Street also rushed to help. Several individuals made 911 calls. Police and paramedics were on-scene quickly, and D.G. was transported by ambulance to the Health Sciences Centre, where he died less than one hour later. [ 3 ] The first police officers on the scene – Constables Riffle and Doerksen – arrived at 3:55 p.m. They quickly realized that D.G. was in serious medical distress. Observing that medical aid was being provided, Constable Doerksen turned his mind to gathering evidence, asking D.G. if he knew who stabbed him.

D.G. nodded in the affirmative, prompting the following conversation as relayed to the court: Officer Doerksen: “Who?” D.G.: “I can’t talk.” Officer Doerksen: “Tell me who stabbed you.” D.G.: “D.” Officer Doerksen: “D. who?” D.G.: “O.”

[ 4 ] At this point, Constable Riffle asked by way of confirmation, “D.O.?” to which D.G. responded with “O.” These were the last words uttered by D.G. [ 5 ] D.O. now stands charged with the second-degree murder of D.G. The Crown says, in the moments before losing consciousness, D.G. told Officers Riffle and Doerksen the name of his assailant. They seek to have this statement - D.G.’s dying declaration - entered into evidence. Hearsay [ 6 ] Because D.G. died from his injuries, his statement to police is considered hearsay.

Hearsay evidence is an out of court statement tendered to prove the truth of its contents, where there is the absence of an ability to cross-examine the maker of the statement. Hearsay evidence is presumptively inadmissible. [ 7 ] In certain circumstances, the court may admit this type of otherwise inadmissible evidence if the context of the statement itself alleviates the concerns surrounding its exclusion, and the exclusion of the evidence would impede the fact-finding function of the court.

Traditional exceptions to the hearsay rule are recognized, and a principled approach to the admission of hearsay evidence has been developed. Several seminal Supreme Court of Canada cases ( Khan [1] , Starr [2] , Mapara [3] , Khelawon [4] , Bradshaw [5] ) have recognized the traditional exceptions and shaped the principled approach. A governing framework was set out: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (

c) In “rare cases”, evidence falling with an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. [ 8 ] The Crown says that D.G.’s statement falls within one of these traditional exceptions to hearsay; namely the dying declaration exception. If the statement falls within this exception, it is presumptively admissible. They argue that this is not a “rare case” where the evidence should be excluded.

In the alternative, if I do not find that the evidence falls within the dying declaration exception, they argue that the statement should still be admitted based on the principled approach, saying that indicia of reliability and necessity have been established. Issue No. 1: Does the statement fall within the dying declaration exception to hearsay? [ 9 ] The dying declaration exception to the hearsay rule has been around for centuries, taking root in the decision of R v.

Woodcock [6] , a 1789 decision from England: “Now is the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.” [ 10 ] As described by this quote, and reaffirmed in other decisions, dying declarations have been held to provide “circumstantial guarantees of reliability” ( Starr, supra ) and “carrying certain degrees of inherent trustworthiness, often because of the circumstances in which they were made” ( R. v.

Youvarajah ) [7] . [ 11 ] The Ontario Court of Appeal in Nurse [8] notes, “[d]ying declarations can be very powerful. After all, the statements come from the very person who was killed, speaking about the circumstances of their death, often moments before the solemn occasion of their death. However, these inherent strengths are counterbalanced against the obvious inability to cross-examine the declarant.

It is for this reason that the courts have insisted on strict adherence to the prerequisites of the exception before granting admissibility.” [ 12 ] Admission of evidence is determined on the basis of threshold reliability, provided by circumstantial indicators of reliability. In the case of this traditional exception, these circumstantial indicators or prerequisites have been developed over time. While they have been pronounced in various ways, four criteria have been summarized by Professors Paciocco (as he then was) and Stuesser in The Law of Evidence : 1.

The deceased had a settled, hopeless expectation of almost immediate death; 2. The statement was about the circumstances of the death; 3. The statement would have been admissible if the deceased had been able to testify; and 4. The offence involved is the homicide of the deceased. [ 13 ] Prerequisites three and four have been met. Had D.G. been able to testify in this matter, his statement would have been admissible, and the accused is charged with second degree murder of D.G. [ 14 ] The Crown says that, based on the evidence before me, the first condition precedent has been made out; that D.G. had a settled,

hopeless expectation of almost immediate death. It points to the medical evidence of his wounds, the assessment of the treating paramedics, his questioning of witnesses – “am I going to die?” – and the evidence of those helping D.G. on scene. The defence also agreed that this condition precedent has been met. [ 15 ] A settled, hopeless expectation of almost immediate death is a high threshold to meet.

This is necessary; the inherent trustworthiness or guarantee of reliability that permits dying declarations to be a recognized exception to the hearsay rule require it. [ 16 ] In considering a deceased declarant’s state of mind to determine whether they had a settled, hopeless expectation of almost immediate death, Watt’s Manual of Criminal Evidence points to the following: (

a) The statements of the declarant and others in the declarant’s presence; (

b) The nature and extent of the declarant’s injuries; and (

c) The time that elapses between the injuries which give rise to the death and the making of the statement. [ 17 ] In this case, D.G. immediately grasped the seriousness of his situation. He asked strangers to assist him and immediately put pressure on the wounds to stop the bleeding. He repeatedly sought assurances that he would not die. More than one bystander was on the phone to 911, urging them to hurry. He said he was having difficulty breathing. He was described by all those who came into contact with him as scared, panicky and distressed. His complexion was pale, indicating a loss of blood.

His arms and legs were flailing. The pathologist described his wounds as requiring urgent medical attention, with the wound through his heart as rapidly life threating. The paramedics who arrived on scene realized that they urgently needed to get him to the hospital.

He suffered two cardiac arrests while in the care of paramedics and despite the efforts of medical professionals at the hospital, he succumbed to his injuries less than one hour after being stabbed. [ 18 ] I am satisfied that, at the time he made the statement to police, D.G. had a settled, hopeless expectation of almost immediate death. [ 19 ] Which leaves the question of condition precedent number two - whether D.G.’s statement to police naming D.O. – was about the circumstances of his death. [ 20 ] The defence calls into question whether D.G.’s response was in relation to his death.

While agreeing that the underlying presumption of the dying declaration exemption remains – that at a time when one is near death, there is only a remote possibility of fabrication or concoction – she points to the medical evidence and challenges the assumption that he was accurately and reliably able to answer what was asked of him. In particular, that the loss of blood and lack of oxygen to his brain raises questions about the reliability of what his response meant. [ 21 ] To put D.G.’s statement into context, it is helpful to review the circumstances leading up to and when it was made.

Immediately following the stabbing at 3:50 p.m., D.G. was able to speak. He said to civilian by-stander Hayes that he had been stabbed, and asked Hayes to put pressure on his wounds. He asked aloud several times if he was going to die and repeated “I can’t talk”. Construction worker Blackford, who arrived on scene after Hayes, heard D.G. saying that his chest hurt and that it was difficult to breath. [ 22 ] Troust, a construction worker who had training as a paramedic, arrived and began assessing D.G.’s injuries. He confirmed that there were the three stab wounds, and that D.G. was not injured elsewhere.

He tried to find a pulse, saying that he could not find a carotid pulse, but did find a weak radial pulse. As the court later heard from Paramedic Bjornson, it is impossible to have a radial pulse and not a carotid pulse. I am satisfied that Troust’s inability to find a carotid pulse was due to the unexpected and traumatic situation he was thrust in, and not because D.G. did not have a carotid pulse at that time. [ 23 ] When he made the statement to police, D.G. was lying on the sidewalk, Officer Riffle was straddling him at approximately his waist level and Officer Doerksen was to Officer Riffle’s right.

They were both crouched down towards D.G. They were both wearing police uniforms. Constable Doerksen testified hat he was questioning D.G. in a firm, demanding tone of voice. The questions were short, precise and not ambiguous. D.G. responded both non-verbally (nodding his head) and verbally. His answers were responsive to the questions asked of him. Both officers said that when they spoke to D.G., he looked at them. The length of the conversation was a minute or less and concluded at approximately 3:57 p.m. D.G. did not speak again. [ 24 ] Blackford and Hayes heard the officers asking D.G. who stabbed him.

Hayes, in his testimony, thought that a construction worker was asking the questions, not a police officer. He also said that he was focussed on D.G. As with Troust’s inability to find the carotid pulse, given the traumatic event Hayes unexpectedly found himself in, I find that little turns on this discrepancy for the purpose of this analysis. [ 25 ] The medical evidence of Dr. Rahamad, Paramedic Bjornson and Paramedic Myshrall was helpful to the court in explaining the physiological responses that D.G. may have been experiencing between being stabbed and arriving at the hospital. Dr.

Rahamad described general symptoms based on certain percentages of blood loss, which translate into levels of shock, with Class 1 being the least serious level and Class 4 the most serious, with one of the symptoms being a loss of consciousness. Shock levels are based on estimated blood loss. Blood loss leads to unconsciousness, which in turn is an indicator that the brain is not getting enough oxygen. Dr. Rahamad was asked about brain hypoxia, or lack of oxygen to the brain.

She indicated that brain hypoxia can result in an individual losing the ability to understand questions or formulate answers, form possible inaccurate memories, have blurred vision or an inability to recall faces, or an inability to respond to questions or commands. [ 26 ] Paramedic Myshrall explained the difficulty in estimating blood loss. He said that in and of itself, blood loss is not a reliable determinate of a person’s medical condition. In the case of D.G., he did not observe the scene and as such based his estimate of blood loss on what others told him and what he observed when in the ambulance with D.G.

The photographs of blood loss at the scene and from D.G.’s clothing, aside from establishing that D.G. was bleeding from his wounds, are not particularly helpful in determining how much blood D. G. lost at any particular time.

[ 27 ] The Court also heard about the Glascow-Coma scale, which is another tool used by medical professionals to assess an individual’s level of consciousness. It measures an individual’s level of consciousness. A score of 15 is high; meaning an individual is more fully conscious and a score of 3 is low, meaning an individual is deeply unconscious. The court heard that the scoring can be subjective, and medical professionals constantly re-assess the score based on a patient’s presentation. [ 28 ] Of these three medical professionals, only Paramedic Bjornson was on scene with D.G.

She attended to him immediately following the questioning by the officers. By her observations, when she arrived D.G. was alert, had a fast radial pulse, his eyes were open but not tracking, and he was described as combative. She initially assessed D.G. to be in Class 2 shock, a condition that she said deteriorated to a Class 3 level of shock as they approached the ambulance. She also initially assessed D.G. as an 11 or 12 on the Glascow-Coma scale. She said that D.G. was declining rapidly during the time she was with him, and ultimately D.G.’s score was noted as a 6. Parenthetically, Dr.

Rahaman, in reviewing the notes related to D.G.’s Glascow-Coma score, indicated that she would have scored him higher, based on the symptoms described. [ 29 ] The defence argument is that a lack of blood and oxygen to D.G.’s brain affected his ability to accurately and reliably understand what was being asked of him, to formulate answers, and understand what he is saying. Dr. Rahaman, in describing when a patient may experience these side effects, was speaking about side effects more closely associated with Class 4 shock.

While it is clear that D.G.’s medical condition rapidly deteriorated, that he was exhibiting some indicia associated with a higher levels of shock (eye rolling; flailing limbs), and that he did ultimately suffer from significant blood loss, the evidence of those on the scene with D.G. from the time of stabbing until the time paramedics arrived and did their assessment, do not describe someone in a Class 4 level of shock. [ 30 ] I am satisfied that the statement of D.G. was about the circumstances of his death. He was able to shake his head in the affirmative and speak a name. He said the name more than once.

It was a responsive answer to direct questions from uniformed police officers. Although his medical condition was deteriorating, leading up to and at the time of questioning by officers, D.G. was conscious. The evidence rules out the alternate explanation argued by defence. [ 31 ] One of the other arguments raised by the defence – that in naming D.O., D.G. may have been referring to someone who looked like the accused – goes to weight and the ultimate reliability of the statement.

Similarly, other issues or arguments raised by defence go to the issue of ultimate reliability, including the different last name heard by Hayes, Constable Riffle and Constable Doerksen, the lack of verbatim notes taken at the time and the frailties of eyewitness identification. These arguments will be considered following the conclusion of the trial. [ 32 ] The Crown having established, on a balance of probabilities, that the preconditions or prerequisites for a dying declaration have been met, I find that the statement of D.G. falls within this traditional exception to the hearsay rule.

Issue No. 2: Is this a “rare case”? [ 33 ] Having made this finding, the statement is presumptively admissible unless the party seeking to have it excluded – in this case the defence – establishes on a balance of probabilities that the indicia of necessity and reliability are lacking in the particular circumstances of the case. The burden of proof remains on a balance of probabilities. [ 34 ] The Ontario Court of Appeal in Nurse reviews the few cases where the rare case argument has been considered.

The court noted that basis for asserting a rare case must extend beyond the reliability concerns inherently captured in the hearsay exception itself. It must be unique to the case and be issues that go to threshold reliability rather than weaknesses in the evidence that go to weight. [ 35 ] As in Nurse , the accused seeks to engage the principled approach in the face of presumptive admissibility under a valid common law hearsay exception.

And as the court found in Nurse , I do not find that this is a rare case that requires the application of the principled approach as a precondition to admissibility. [ 36 ] There is nothing inherently unique in this case. All individuals suffering grievous bodily injury such that the dying declaration exemption is engaged will be medically compromised in some fashion. Despite the arguments raised by the defence, the threshold reliability concerns with respect to D.G.’s statement have been addressed through the adherence to the prerequisites of the dying declaration exception.

I am satisfied that the evidence does not lack the indicia of necessity and reliability required for its admission. And as noted in my analysis regarding the admissibility of the statement, the arguments identified by counsel regarding the potential weakness in the evidence go to weight, and will be considered once all evidence is in. Issue No. 3: Is a separate Principled Approach analysis required? [ 37 ] Having found the statement to fall under a traditional exception to the hearsay rule, it is not necessary to conduct a separate principled exception analysis.

If this were required, one could properly ask what merit is there in maintaining the traditional exceptions. Previous Supreme Court decisions (e.g. Starr , Mapara , Khelawon ) confirm that evidence falling under a traditional exception automatically satisfies the principled approach, save in the rare case. As noted above, I have found that this is not a rare case. [ 38 ] Bradshaw did not overrule this principle, and in that case there were no traditional exceptions at play. The framework set out in Bradshaw applies solely to the principled approach, where admissibility has to be established from the ground up.

This is not the situation in the case at bar. Issue No. 4: Residual Discretion to Exclude Hearsay Evidence. [ 39 ] A judge has a residual discretion to exclude otherwise admissible hearsay evidence to ensure trial fairness when its prejudicial effect outweighs its probative value. [ 40 ] The purpose of the hearsay rule is to guard against admission of evidence that cannot be tested. In this case, the evidence is clearly relevant to the central issue in dispute; namely the identity of D.G.’s assailant.

D.O. has the opportunity, through cross- examination of the multiple witnesses to test the evidence as to the issue of identity. The prejudicial effect is therefore limited somewhat,

and is outweighed by the probative value of the evidence. Conclusion [ 41 ] The statement given by D.G. to officers Riffle and Doerksen will be admitted that it complies with the dying declaration exception to the hearsay rule. “original signed by:” _________________________ FREDERICKSON P.J.