2023 QCCA 353, 2023 QCCA 353

R. c. Spezzano 2023 QCCA 353 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007467-200 ( 550-01-100048-174 ) MINUTES OF HEARING DATE: March 17, 2023 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL HIS MAJESTY THE KING Mtre Isabelle Bouchard ( Director of Criminal and Penal Prosecutions ) Absent RESPONDENT COUNSEL Emilio Spezzano Mtre Howard L. Krongold ( AGP ) Absent DESCRIPTION: Motion for authorization to adduce fresh evidence ( ss. 683(1) Cr.C . and 57 R.C.A.Q.C.M .).

Clerk at the hearing : Chloé Côté-Sauvageau Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on March 13, 2023. The parties were excused from appearing before the Court. BY THE COURT: Judgment – see page 3. Conclusion of the hearing.

Chloé Côté-Sauvageau, Clerk at the hearing JUDGMENT [1] On November 20, 2020, the respondent was acquitted of a first-degree murder charge in the death of Christine MacNeil, whichoccurred on October 19, 2015: Spezzano v. R., 2020 QCCS 4451. The evidence at trial was entirely circumstantial. The Crown’s theoryof the case was that this was a domestic homicide in which the respondent helped Mr. Blake Dooley murder Ms. MacNeil by gunshot. [2] Initially, the respondent and Mr. Dooley were jointly tried before a judge and jury, but a mistrial was ordered regarding therespondent. That trial resumed with Mr.

Dooley as the sole accused. At the conclusion of that trial on November 22, 2018, Mr. Dooleywas found guilty of the first-degree murder of Ms. MacNeil. Mr. Dooley appealed the conviction but withdrew his appeal on September16, 2022. He is presently serving a life sentence of imprisonment. [3] As for the respondent, he was subsequently tried before the Honourable François Dadour, J.S.C. sitting without a jury, inproceedings lasting seven weeks.

In a lengthy judgment dated November 20, 2020, the trial judge acquitted the respondent on the groundthat the Crown had failed to establish mens rea beyond a reasonable doubt: [125] Applying the appropriate standard of proof to the evidence as a whole, I am unable to conclude that proof of Mr. Spezzano'sknowledge of Mr. Dooley's intention to commit the planned and deliberate murder of Ms.

MacNeil was made beyond a reasonable doubt.This conclusion is also applicable to the issue of wilful blindness. [126] In a nutshell, I am not satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the entirety ofthe evidence in this case is the guilt of Mr. Spezzano. I reached this conclusion based on logic, common sense and in light of humanexperience. The theory that Mr. Dooley acted alone was plausible and reasonable, not just possible.

I do not consider that this alternativeinference was negated by the Crown. [4] On December 17, 2020, the Crown appealed the acquittal on the following grounds set out in its notice of appeal: 8.1 Le juge de première instance a erré en droit dans son analyse des éléments constitutifs de la mens rea de l’intimé à

titre de secondparticipant à la commission d’un meurtre au second degré; 8.2 Le juge de première instance a erré en droit en excluant des éléments de preuve reliés à la conduite postérieure de l’intimé; [5] There has been little activity in this appeal and the Crown’s appeal brief has yet to be filed with the Court. [6] On March 1, 2023, the Crown submitted a motion seeking to adduce as new evidence various documents and an electronicrecording of a telephone conversation held on October 26, 2022, between Mr. Dooley and a police officer, Detective Étienne Dumoulin.It must be noted that Mr.

Dooley never implicated the respondent in the murder when he was previously questioned by the police, norwas he called to testify at the respondent’s trial.

The documents the Crown seeks to adduce are listed as follows in its motion: R-7 : Notes personnelles des policiers sur la conversation du 26 octobre 2022 entre Blake Dooley et le S/D Étienne Dumoulin; R-8 : Rapport policier sur la conversation du 26 octobre 2022 entre Blake Dooley et le S/D Étienne Dumoulin; R-9 et R-10 : Conversation du 26 octobre 2022 entre Blake Dooley et le S/D Étienne Dumoulin; [7] Though the telephone conversation was with Detective Dumoulin, another police officer identified as Detective Simard waspresent, apparently unbeknownst to Mr. Dooley, and could hear the conversation.

It is Detective Simard, a third party, who recorded part(about half) of the less than 12-minute conversation. The record before us does not indicate that Mr. Dooley was notified that theconversation was being recorded. The partial recording on an electronic medium is identified as Exhibit R-10 and the transcript of thatpartial recording is identified as Exhibit R-9. [8] The admissibility of new evidence in a case such as this is subject to the principles or criteria set out by the Supreme Court ofCanada in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, p. 775.

These may be stated as follows: (1) the evidenceshould generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not beapplied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive orpotentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief, and (4) it mustbe such that if believed, it could reasonably, when taken with the other evidence at trial, be expected to have affected the result. [9] The new evidence that the Crown seeks to adduce does not meet these criteria.

As the Crown conceded, the October 26, 2022conversation constitutes hearsay. There are serious doubts that it would be admissible at trial under the principled exceptions to thehearsay rule considering its questionable reliability and relevance. [10] The reliability of the evidence is dubious as Mr. Dooley was not under oath nor were his statements subject to any cross-examination. Moreover, Mr. Dooley was apparently never informed that the conversation could be used against the respondent nor that itwas being recorded by a third party.

[11] The relevance of the conversation is marginal at best. The overall clear impression that results from listening to the entire partialrecording of the conversation is that Mr. Dooley has neither the desire nor the intention to cooperate in any way whatsoever with thepolice with respect to the respondent and has nothing to say about him. [12] Nevertheless, the Crown still asserts that certain parts of the conversation are relevant, more particularly the following statementsof Mr.

Dooley, which are highlighted by the Crown in the partial transcript of the conversation: “And I get life 25, and then you go afterthe guy that did it, and now you’re talking to me?”; “I got life 25, and he walked”; “The other half a team, just bought a brand-newhouse”; “The other half a team is making $250,000 a year in this business”; “Now, you want me to allocate and say, oh good, well yeah,I shot them, yeah, I shot them, yeah”; “Listen, I’ll tell you something, me I don’t care either way, whether he dies, or whether somebodyshoots him, or whether he just fucking dies of old – he did his job, he got off.” “You held a conspiracy charge on me, you should haveheld a conspiracy — you should have stayed the conspiracy charge on him”; “Then you would have something, because he would havelost the first-degree murder, you could come back around and get him for conspiracy.” [13] With respect, when considered with the rest of the partial recording of the conversation, these statements are, at best, ambiguous,particularly since over half the conversation was not recorded, leaving the listener wondering in what precise overall context these wordswere uttered.

Moreover, the statements are more in the nature of a criticism of the work of the police and the Crown in the prosecution ofthe respondent’s case than an implication of the latter in the victim’s murder. It is worth noting that at no point in the partial recording ofthe conversation does Mr. Dooley even mention the name of the respondent. [14] Though this would itself be sufficient to reject the Crown’s motion, another cogent reason also leads us to this conclusion. As theSupreme Court of Canada noted in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, p. 775, the overridingconsideration in deciding whether to admit new evidence in appeal must be, in the words of section 683(1) of the Criminal Code(“Cr.C.”), “the interests of justice”. The interests of justice must be consistent with the law as validly enacted by Parliament. As counselfor the respondent aptly noted at the hearing on the motion, section 676(1)(

a) Cr.C. restricts the Crown’s right to appeal a “verdict ofacquittal (…) of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone”. The Crowndoes not dispute the application of section 676(1)(

a) Cr.C. and makes no attempt to argue that the proposed new evidence would haveany relevance to a question of law alone. In essence, the Crown fails to identify to which question of law alone the new evidence wouldbe relevant. [15] It is obvious to us that with the proposed new evidence, the Crown seeks to bolster in appeal the circumstantial factual evidenceit adduced at trial. The rather transparent purpose of the motion is to allow the Crown to argue grounds of appeal based on questions offact or, at best, questions of mixed fact and law. Section 676(1)(

a) Cr.C. precludes this. FOR THESE REASONS, THE COURT: [16] DISMISSES the Crown’s motion to adduce new evidence. ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A. PETER KALICHMAN, J.A.