r v. GEORGE DISZHAZY, 2022 QCCQ 9450

R. c. Diszhazy 2022 QCCQ 9450 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Criminal division » No: 500-01-198579-192 DATE: May 18 th , 2022 ______________________________________________________________________ BY THE HONOURABLE DAVID SIMON, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution - Petitioner v.

GEORGE DISZHAZY Accused - Respondent ______________________________________________________________________ RULING ON THE ADMISSIBILITY OF STATEMENTS (VD-1) [1] ______________________________________________________________________ OVERVIEW [ 1 ] Mr. George Diszazhy (“the accused”) is charged with aggravated assault on his now deceased spouse, Ms. Veronika Diszazhy. The charge arises from an incident which took place on December 29 th , 2019. [ 2 ] On that day, pursuant to a 911 call, police intervened at the accused’s place of residence. Upon arrival, Officers Jackson and Rochefort observed Ms.

Diszhazy lying on the kitchen floor in a pool of blood. She had visible injuries on her face. [ 3 ] Despite appearing, at first sight, to be unconscious, Ms. Diszhazy told the officers that she was hit by the accused but asked them not to take him in custody. Contemporaneously, the accused made the following statement in reference to his spouse: “Take care of her, I love her, but I hit her”. [ 4 ] Officer Moogk arrived on the scene to provide further assistance. Ms. Diszhazy was still on the kitchen floor. Officer Moogk asked her what happened. She made a brief statement.

Not long after, the paramedics came to take Ms. Diszhazy to the hospital. [ 5 ] Later in the evening, Officer Diktakis was tasked to take a written statement from Ms. Diszhazy at the Lakeshore Hospital. Ms. Diszhazy was unable to provide a written statement. She nonetheless described the events and Officer Diktakis wrote the statement for her. [ 6 ] Ms. Diszhazy remained at the Lakeshore Hospital until she passed away on January 25 th , 2020. The cause of death was unrelated to the injuries sustained on December 29 th , 2019.

Rather, it was linked to a severe case of hepatitis. [ 7 ] Crown counsel seeks to tender into evidence at trial the statement of the accused. He argues that it was made freely and voluntarily. Crown counsel also applies to have the various hearsay statements made by Ms. Diszhazy to the police officers ruled admissible under the spontaneous utterance exception and/or the principled exception to the hearsay rule. [ 8 ] Defence counsel opposes the admissibility of the statement made by his client on the basis that it was not the product of an operating mind.

There is no Charter -based application to exclude the statement. As for the hearsay statements made by Ms. Diszhazy, he argues that they do not fall under the spontaneous utterance exception nor do they meet the reliability threshold required by the principled exception. ISSUES [ 9 ] Consequently, I must determine the following issues: 1. Did the Crown prove beyond reasonable doubt that the statement of the accused was made freely and voluntarily? 2. Did the Crown prove on a balance of probabilities that the hearsay statements made by Ms.

Diszhazy are admissible under the spontaneous utterance exception and/or the principled exception to the hearsay rule? THE EVIDENCE

[ 10 ] To avoid duplicative testimony, the admissibility inquiry proceeded by means of a blended voir dire . [ 11 ] Segments of the evidence tendered at the voir dire have already been referred to for introductory purposes. However, a more in- depth examination of the evidence is required to properly address the issues in question. Crown evidence [ 12 ] Four police officers testified on behalf of the Crown at the voir dire . Their respective testimony can be summarized as follows. - Officer Jackson [ 13 ] December 29 th , 2019 was Officer Jackson’s very first day on the job.

She was on patrol with Officer Rochefort when they were dispatched to a specific address to respond to a 911 call. [ 14 ] When they arrived on location, the accused opened the door of his apartment and made gestures to incite them to join him inside. He stated: “come, come”. Once inside, near the front entrance, the accused started talking about his spouse and mentioned that she needed help. [ 15 ] They then all headed to the kitchen. There, Officer Jackson saw a woman lying on the ground in a pool of blood. She was immobile, appeared almost dead and had visible injuries on her face near her eye.

The woman in question was Ms. Diszhazy – an uncontested fact. [ 16 ] As for her observations of the premises, Officer Jackson noted that there was bottle of vodka in the living room area adjacent to the kitchen. [ 17 ] According to Officer Jackson, Ms. Diszhazy was in the same physical state as on the photograph tendered into evidence in the voir dire [2] . The photograph depicts Ms. Diszhazy’s upper body lying on the ground with blood on her face and on the kitchen floor. [ 18 ] Officer Jackson was tasked with handling the accused while Officer Rochefort attended to Ms. Diszhazy. As Officer Jackson walked by Ms.

Diszhazy, she heard her say: “he hit me, but don’t take him”. She was less than five meters away from her at the time. [ 19 ] Officer Jackson asked the accused to exit the kitchen. He appeared reluctant to do so. He kept on saying: “Help her, help her”. As Officer Jackson attempted to lead the accused to the dining room, he admitted having hit his spouse and reiterated that she needed help. The accused was crying and in a state of panic.

According to Officer Jackson, the accused made this statement within a short delay of their arrival on the premises. [ 20 ] It should be noted that during her testimony, Officer Jackson could no longer remember the exact words uttered by the accused as he was being escorted to the dining room. However, she indicated that the exact words were recorded in the police report drafted in the aftermath of the events.

Upon taking cognizance of the report to refresh her memory, Officer Jackson confirmed that the accused stated the following: “Take care of her, I love her, but I hit her”. [ 21 ] Shortly after making this statement, the accused was placed under arrest by Officer Rochefort. The accused became aggressive. He refused to put his boots on because he did not want to leave. He wanted to stay with his wife. The officers had to resort to force to take him to the police cruiser without his boots on.

Officer Jackson carried them to the detention center. - Officer Rochefort [ 22 ] For the most part, Officer Rochefort’s testimony is along the same lines as that of Officer Jackson. However, as will be seen next, Officer Rochefort provided supplemental details. [ 23 ] According to Officer Rochefort, the 911 call was placed by the accused. When they arrived at his dwelling, he was waiting for them at the entrance with the front door half open. He made a sign to them with his hand and said “come, come”. When they entered the premises, the accused pointed to Ms.

Diszazhy who was lying on the kitchen floor in a pool of blood. [ 24 ] Officer Rochefort approached Ms. Diszazhy, kneeled on the ground, touched her shoulder and asked her if she was breathing well and what happened for her to be on the ground. Ms. Diszhazy opened her eyes slightly and clearly replied with an accent: “He hit my nose, but don’t take him”. [ 25 ] Officer Rochefort observed that Ms. Diszazhy had a black eye and her nose appeared to be broken. She also detected a smell of alcohol from her breath. Officers Vary and Bertholot, along with Sergeant Mustapha, arrived on site to provide assistance.

They immediately called the paramedics. [ 26 ] While Officers Vary and Bertholot looked after Ms. Diszazhy, Officer Rochefort went to see the accused who, at the time, was with Officer Jackson in the kitchen. The accused made the following unsolicited statement: “Take care of her, I love her, but I hit her”. He looked worried. At 7:18 pm, Officer Rochefort placed him under arrest for assault. She cautioned him and advised him of his rights. [ 27 ] The accused was then handcuffed. He became agitated and refused to put his winter boots on.

Officer Rochefort noted that the accused was unsteady on his feet and had a strong smell of alcohol emanating from his breath. She also noticed that there was an empty bottle of vodka on the kitchen counter. Officer Rochefort then walked the accused, shoeless, to the police cruiser. He was transported to the West Operational Center to be handed over to investigators. [ 28 ] Officer Rochefort was unable to recall who took the photograph of Ms. Diszhazy tendered into evidence [3] , but indicated that it was taken before the arrival of the paramedics.

She later showed this photograph to the investigators in charge of the file to explain to them why she could not take a written statement from Ms. Diszhazy. Officer Rochefort testified that no photographs of the vodka bottle

were taken. She also mentioned that crime scene technicians were never called on site. - Officer Moogk [ 29 ] Officer Moogk was alone on patrol duty on the evening of December 29 th , 2019 when he heard on the radio waves that two police cruisers were responding to a 911 call for domestic violence. [ 30 ] Officer Moogk decided to drive to the address given to the 911 operator. When he arrived, he noticed that two police cruisers were already at the scene. He entered the accused’s residence and saw a woman – Ms. Diszhazy – lying sideways on the ground in a pool of blood. Her eyes were shut.

There was already an officer looking after her. [ 31 ] Officer Moogk joined in and crouched down close to Ms. Diszhazy – approximately a meter away from her. He observed that her face was bloodied and swollen. She looked severely injured. He first asked her how she was doing. She did not respond. He then asked her what happened. She started speaking to him. She told him with a weak tone of voice that she wanted to call her child in British Columbia but her husband got angry. He struck her with an open hand – his right hand – on the nose and left eye area. [ 32 ] Ms.

Diszhazy also stated that her husband had consumed large amounts of alcohol. Officer Moogk was unsure whether Ms. Diszhazy volunteered this information or offered a reply to a specific question. Because Ms. Diszhazy was in obvious pain, Officer Moogk refrained from asking her other questions. He stayed along her side for approximately 15 - 20 minutes, until the paramedics took her to the hospital. - Officer Diktakis [ 33 ] On December 29 th , 2019, Officer Diktakis was asked by his superior to go to the Lakeshore Hospital to take a statement from Ms. Diszhazy. [ 34 ] He arrived at the hospital at 10:35 pm. Ms.

Diszhazy was on her hospital bed. She was unable to write a statement herself, but felt at ease to describe what happened earlier in the evening. [ 35 ] Officer Diszhazy wrote the statement for her. He put down on paper word for word the questions asked by himself and the answers provided by Ms. Diszhazy. She then signed the statement. She was able to articulate properly throughout. [ 36 ] As written down in the statement [4] , Ms. Diszhazy told Officer Diktakis that she woke up from her nap to the sound of the phone ringing. Her husband answered the call. It was their son calling from Vancouver.

When she made it to the phone, her husband had already hung up. She tried calling her son back but her husband slapped her on the left side of the face. She fell to the ground and started bleeding profusely from her nose. Her husband was scared for her life and called 911. He was intoxicated at the time of the events which occurred at around 7:00 pm. [ 37 ] During cross-examination, Officer Diktakis confirmed that he did not speak to the doctor in charge of Ms. Diszhazy prior to taking her statement. He had no information, from a medical standpoint, about her state of mind before interacting with her.

Defence evidence [ 38 ] The accused chose did not testify at the voir dire . [ 39 ] Defence counsel filed into evidence the Coroner’s report concerning the death of Ms. Diszhazy. [5] [ 40 ] As agreed upon by the parties, the purpose of this report is primarily to highlight that Ms.

Diszhazy was a known alcoholic, that she suffered from a liver disease and that she passed away on January 25 th , 2019 due to a gastrointestinal hemorrhage caused by a severe and ongoing case of hepatitis. [ 41 ] The report also indicates that she sustained multiple facial fractures as a result of the events which occurred on the evening of December 29 th , 2019. ANALYSIS 1. Did the Crown prove beyond reasonable doubt that the statement of the accused was made freely and voluntarily?

GOVERNING PRINCIPLES: THE CONFESSION RULE [ 42 ] No statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution proves beyond reasonable doubt that the statement was made freely and voluntarily. This is the confession rule. [6] [ 43 ] The parameters of the confession rule are very much tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions. [7] This is why it is foremost concerned with voluntariness, broadly defined [8] .

After all, a voluntary confession is more likely to be true or reliable. [9] Also, accepting a statement that was voluntarily made by an accused will preserve trial fairness by providing sufficient protection to the right to choose whether to speak. [10] [ 44 ] To be deemed free and voluntary, a statement must be made without threats, promises or inducements from the person in authority and must be the product of an operating mind. In addition, case law recognizes that oppressive circumstances surrounding the taking of the statement may lead to an involuntary statement.

The use of improper police trickery to obtain the statement must also be taken into consideration when assessing its admissibility. [11] [ 45 ] Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a

discrete inquiry completely divorced from the rest of the confessions rule”. [12] On the other hand, the use of “police trickery” to obtain a confession is a distinct inquiry given that its more specific objective is maintaining the integrity of the criminal justice system”. [13] [ 46 ] In light of the argument put forth by defence counsel, it is relevant to discuss in further detail what is meant by “operating mind” as a component of the voluntariness inquiry. [ 47 ] Over time, the courts have come to accept that, to be admissible, statements made by an accused to a person in authority must be the product of an “operating mind”.

For example, it was held that a statement made by someone suffering from shock after an accident could not be admitted because it was not the product of an operating mind. [14] The same has been said of confessions made while the person was in a hypnotic state, suffering from a mental disorder or intoxicated. [15] [ 48 ] However, the mere fact of intoxication or mental illness, or of other conditions that could impair one’s cognitive functions, is not enough to warrant exclusion. [16] In R . v.

Whittle [17] , the Supreme Court explained that the focus is on whether the accused has truly been able to make a choice to give the statement. Sopinka J., for the Court, stated the following with respect to the “operating mind” test as an aspect of the confession rule [18] : The operating mind test […] requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused.

Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [ 49 ] Sopinka J. reiterated that an operating mind “includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said” [19] , and that it is “not necessary that the accused possess analytical ability”. [20] [ 50 ] In R . v.

Oickle [21] , Iacobucci J., for the majority, addressed the principle of an operating mind as a component of voluntariness in the following terms : This Court recently addressed this aspect of the confessions rule in Whittle […] and I need not repeat that exercise here.

Briefly stated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”. [ 51 ] Finally, it should be reminded that the application of the confession rule is by necessity contextual. As stated in Oickle [22] : Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive.

A trial judge should therefore consider all the relevant factors when reviewing a confession. PRINCIPLES APPLIED [ 52 ] At the outset, I acknowledge that Officer Jackson could not recall from memory the exact words uttered by the accused and did not take personal notes. She was also unsure whether the accused made the statement before or after the first hearsay statement made by Ms. Diszhazy. [ 53 ] However, the words uttered by the accused were recorded by Officer Jackson in a report drafted with Officer Rochefort in the aftermath of the events.

In addition, Officer Rochefort was able to convey the full statement from memory. She also clearly indicated that Ms. Diszhazy’s first hearsay statement preceded the statement of the accused. [ 54 ] On the whole, for the purpose of the voir dire , I am satisfied that the accused stated in reference to his wife “take care of her, I love her but I hit her” to Officers Jackson and Rochefort. In any event, this is not really in dispute at the admissibility stage. [ 55 ] Although entitled not to testify at the voir dire , the accused offered no denial of the statement.

Moreover, Defence counsel went as far as admitting that the statement was made spontaneously. Still, this should not be understood as precluding him from raising reliability concerns with respect to the testimony of Officers Jackson and Rochefort at the trial stage, as the case may be. [ 56 ] Now, I am well aware that the “operating mind” inquiry should not be divorced from the rest of the confession rule. Yet, Defence counsel acknowledged that there were no threats, promises, oppressive circumstances or use of police trickery in the case at bar.

Given the evidence pertaining to the making of the statement, I am of the same view. [ 57 ] Hence, the sole issue I must determine is whether the statement was the product of an operating mind. In other words, I must assess if the accused had sufficient cognitive capacity to know what he was saying and that he was saying it to police officers who could use it to his detriment.

Here, the inquiry is concerned squarely with the impact of the accused’s state on his capacity to make a voluntary statement, not with the conduct of authorities. [ 58 ] Undoubtedly, there is evidence that the accused was under the influence of alcohol and somewhat in shock when he made the statement to the police. It should be recalled that Officer Rochefort noted that the accused was unsteady on his feet and had a strong smell of alcohol emanating from his breath.

She also noticed that there was an empty bottle of vodka on the kitchen counter. [ 59 ] Officer Jackson also noted the presence of a vodka bottle in the vicinity, but did not mention that it was empty. Of relevance, she observed that the accused was crying and in a state of panic at the time he made the statement. [ 60 ] Obviously, the accused was neither sober nor collected when he interacted with the police officers. This is not to say that he was necessarily deprived of an operating mind. In fact, there is cogent evidence that he possessed, at the very least, the limited amount of

cognitive capacity referred to in Whittle during the police intervention. [ 61 ] As conveyed by both Officer Jackson and Officer Rochefort, the accused was waiting for them at his front door, asked them to approach, invited them inside, showed them the way to the kitchen and pointed to his spouse who was lying on the ground. It can be safely inferred from the evidence that the accused was the one who called the 911 operator to seek assistance.

This was even admitted by Defence counsel during closing submissions. [ 62 ] By calling the 911 operator, the accused made a conscious choice to have the authorities come on site to provide help to Ms. Diszhazy. Given that he was alone in the apartment with his wife lying injured in a pool of blood, it can be logically inferred that he was aware of the risk of being investigated by police. [ 63 ] Clearly, the accused knew that he was interacting with on-duty police officers responding to the 911 call.

In spite of all of this, he chose to provide an incriminating statement. [ 64 ] Furthermore, the statement was intended to press the police to take care of his wife. This is precisely why he kept on saying “help her, help her”. He knew what he was saying and why he was saying it, namely: to make sure that his wife would be taken care of – the same purpose that led him to call the 911 operator. [ 65 ] Also, the evidence shows that upon being placed under arrest, the accused became agitated, somewhat aggressive and reluctant to cooperate.

The accused changed his behaviour mainly because he knew that he was on the verge of being removed from the scene and separated from his wife, not because he had consumed alcohol or was in shock. [ 66 ] At this juncture, it should be reiterated that the “limited degree of cognitive ability” required for an operating mind is not a high threshold. It is the same as the one required for fitness to stand trial. [23] The Supreme Court case of Whittle is illustrative of this point. Statements made by Mr.

Whittle confessing to a murder were admitted even though he had schizophrenia, was mentally unstable and, at times, actively hallucinating. He felt an inner compulsion to confess because of voices in his head. Expert evidence from psychiatrists at the voir dire supported this finding. [ 67 ] The Court in Whittle nonetheless held that the statements were admissible because Mr.

Whittle had sufficient cognitive capacity to understand what he was saying and what was being said. [ 68 ] In our case, while there is evidence that the accused’s consumption appeared to impact his balance, there is no evidence that it impaired his ability to organize and communicate his thoughts coherently. The same can be said about his state of panic. [ 69 ] On the record, I am satisfied that the accused was not deprived of the choice to speak by reason of intoxication and/or mental incapacity. He had the requisite capacity to make an active choice to speak to the police.

His will was not overborne by lack of an operating mind. [ 70 ] Even though he had not yet been cautioned to remain silent, the accused was aware at the time that he could be considered as a suspect by the police and thus face jeopardy. Notwithstanding, he spontaneously chose to speak and incriminate himself, before the police could even consider reading a standard caution.

Whether this choice was wise or not has no bearing on the issue. [ 71 ] This is not a case where it can be said that the accused was so devoid of rationality and understanding that his uttered words could not fairly be considered to be his statement at all. [24] On the contrary, the accused knew what he was saying and that he was saying it to police officers who could use it to his detriment. [ 72 ] In addition, as Crown counsel correctly pointed out, the fact that the statement was unsolicited and spontaneous provides a badge of reliability which weighs in favour of admissibility. [ 73 ] In light of the evidence and applicable legal principles, I am convinced beyond reasonable doubt that the statement “take care of her, I love her, but I hit her” was made freely and voluntarily. [ 74 ] Judges have a residual discretion to exclude confessions, even if voluntary made. [25] In R . v.

Pearce [26] , the Manitoba Court of Appeal recognized that trial judges have discretion to exclude voluntary confessions made to persons in authority where there is clear, compelling and cogent evidence that a confession is false. This is far from being the case here. [ 75 ] I find that the statement made by the accused is highly probative as it can assist the trier of fact in determining whether Ms. Diszazhy was assaulted and by whom.

Its probative value largely exceeds any prejudicial effect on trial fairness. [ 76 ] In conclusion, I rule that the statement made by the accused “take care of her, I love her but I hit her” is admissible into evidence at the trial proper. 2. Did the Crown prove on a balance of probabilities that the hearsay statements made by Ms. Diszhazy are admissible under the spontaneous utterance exception and/or the principled approach to the hearsay rule?

GOVERNING PRINCIPLES: ADMISSIBILITY OF HEARSAY STATEMENTS General principles of hearsay evidence [ 77 ] The essential defining features of hearsay are the fact that the out-of-court statement is adduced to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the declarant. [27]

[ 78 ] Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth. As Karakatsanis J. observed in R. v. Bradshaw [28] : [ …] Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination […] Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process.

The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity […] [ 79 ] However, there are times when hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”. [29] Such is the case, for instance, where the hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. [30] [ 80 ] Thus, categorical exceptions to the rule excluding hearsay developed through the common law over time.

These traditional exceptions are based on admitting types of hearsay statements that were considered necessary and reliable. [31] [ 81 ] The courts eventually recognized that a rigid application of these categorical exceptions could lead to the needless exclusion of evidence in some cases, or its unwarranted exclusion in others.

As a result, a more flexible approach to hearsay developed through the jurisprudence. [32] This approach is known as the principled exception to the hearsay rule. [ 82 ] Under the principled exception, hearsay evidence can be admitted into evidence for its truth when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities. [33] [ 83 ] The development of the principled approach did not displace the traditional categories for hearsay exception. In R . v. Starr and R . v.

Mapara [34] , the Supreme Court explained how the new principled exception, and the underlying principles of necessity and reliability, fit with the traditional hearsay rules. The Court offered the following four-part framework, later affirmed in R . v. Khelawon [35] : 1. 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. 2.

A traditional 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. 3. In “rare cases”, evidence falling within a traditional hearsay exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. 4.

If hearsay evidence does not fall under a traditional hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire . [ 84 ] Hearsay evidence may therefore be admissible under an existing hearsay exception or on a case-by-case basis under the principled approach. However, necessity and reliability must remain the guiding principles for the admissibility of all hearsay. [ 85 ] Given the position advanced by Crown counsel, I will now direct my attention to the spontaneous utterance exception to the hearsay rule – a traditional common law exception.

I will then further discuss the twin criteria of necessity and threshold reliability under the principled approach.

The spontaneous utterance exception to the hearsay rule [ 86 ] The rationale for the common law spontaneous utterance hearsay exception lies in the trustworthiness of the utterance which is regarded as furnished by an occurrence of so startling or shocking a nature as to suspend the declarant’s ability to reflect and fabricate. [36] [ 87 ] The principles governing the admissibility of hearsay statements under the common law spontaneous utterance exception were summarized eloquently by Copeland J. in R . v.

MacKinnon [37] as follows: The spontaneous utterance exception to the hearsay rule permits the admission into evidence of hearsay statements where the statements are made in response to a dramatic or startling event and are of such spontaneity and contemporaneity that the possibility of concoction may be safely discounted. For the exception to apply, the circumstances of the making of the statements should be so unusual, startling, or dramatic that they would dominate the declarant’s thoughts at the time of the making of the statements.

To fall within the spontaneous utterance exception, statements need not be strictly contemporaneous with the event that led to the making of the statements, so long as the stress or pressure created by the event is ongoing, and the statements were made before there was time to contrive and misrepresent […]. [ 88 ] It should be emphasized that the reliability of the statement derives not from contemporaneity, per se , but from the fact that the declarant is so overwhelmed with, or shocked by, the pressure or involvement of the event that the declarant would have no real opportunity for the reflection required to concoct a story. [38] Contemporaneity of the statement with the event is therefore a matter of degree. [39] [ 89 ] However, since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made [40] – in other words, whether the statement is truly spontaneous. [ 90 ] As explained by Watt J.A. in R . v.

Camara [41] :

For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event.

In other words, the trigger mechanism for the statement – the event – was still operative. [ 91 ] In the end, w here the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received unless, of course – much like any other item of evidence – its probative value is overborne by its prejudicial effect. [42] The principled exception to the hearsay rule: necessity and reliability [ 92 ] According to the fourth part of the Starr / Mapara framework, hearsay evidence that does not fall under a traditional hearsay exception may still be admitted under the principled approach.

As mentioned previously, before admitting hearsay statements under the principled exception, the trial judge must determine on a voir dire that necessity and reliability have been established on a balance of probabilities. [ 93 ] Due to the fact that Ms. Diszhazy passed away and is unavailable to testify at trial, I need not dwell on the criterion of necessity. As conceded by Defence counsel, this criterion is met. The central issue is whether the Crown has established the threshold reliability of the various out-of-court statements made by Ms. Diszhazy.

I find it therefore relevant to expand on the criterion of threshold reliability. - Threshold reliability [ 94 ] When examining the reliability of a statement under the principled approach, it is important to distinguish between threshold reliability and ultimate reliability. Threshold reliability concerns admissibility.

Ultimate reliability has to do with reliance. [43] [ 95 ] At the admissibility voir dire , the trial judge acts as a gatekeeper whose function “is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement”. [44] [ 96 ] Once admitted, the trier of fact remains the ultimate arbiter of what to do with the evidence and of whether or not to accept that the statement is true.

It falls to the trier of fact (either a judge or jury) to assess the ultimate reliability of the statement in the context of the entirety of the evidence tendered at the trial proper. [45] [ 97 ] It is crucial that the trier of fact’s domain not be encroached upon at the admissibility stage.

If the judge sits without a jury, it is important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case [46] . [ 98 ] Threshold reliability is established when the hearsay is sufficiently reliable to overcome dangers arising from the difficulty of testing it. [47] These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. [48] The dangers relate to the difficulties assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. [49] [ 99 ] A helpful

summary of the law that applies to the threshold reliability requirement was provided in R. v. Srun [50] by Watt J.A. as follows: The reliability requirement may be established in either or both of two ways. Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination […].

These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement […]. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying […]. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required […]. Substantive reliability is established where the hearsay statement is inherently trustworthy.

To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement […]. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process […]. Procedural and substantive reliability are not mutually exclusive.

They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability […]. Even where the proponent of hearsay evidence satisfies the necessity and reliability requirements of the principled approach to hearsay, it does not follow that the hearsay statement will be admitted.

The trial judge retains a discretion to exclude otherwise admissible hearsay where its probative value is outweighed by its prejudicial effect […]. [ 100 ] In the case at bar, Crown counsel relies on substantive reliability to support the admissibility of the hearsay statements under the principled approach.

He argues, among other things, that there is ample evidence corroborating the hearsay statements, thus making them sufficiently reliable to be tendered into evidence at the trial proper. [ 101 ] This raises the issue of when corroborative evidence can be relied upon to establish threshold substantive reliability. This issue was specifically addressed in Bradshaw , wherein the Supreme Court imposed restrictions on the use of corroborative evidence.

[ 102 ] The Court held that a trial judge can only rely on corroborative evidence to establish threshold substantive reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay danger relates to the declarant’s sincerity, truthfulness will be the issue.

If the hearsay danger is memory, narration, or perception, accuracy will be the issue. [51] [ 103 ] Karakatsanis J., writing for the majority, laid out a four-part analysis that trial judges must undertake when deciding whether corroborating evidence can be used to establish threshold substantive reliability [52] : 1. i dentify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and 4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

PRINCIPLES APPPLIED [ 104 ] For convenience, I will refer to the statement made to Officer Rochefort as statement n o 1; the statement made to Officer Moogk as statement n o 2 and the statement taken by Officer Diktakis at the hospital as statement n o 3. [ 105 ] With respect to the principled approach, Crown counsel agrees that threshold reliability cannot be established on the basis of procedural reliability. Rightly so, in my view. [ 106 ] Indeed, there are no audio or video recordings of the hearsay statements. They were not made under oath and Ms. Diszhazy was not warned about the consequences of lying.

The only written statement was put down on paper by Officer Diktakis, not Ms. Diszhazy. There are no adequate procedural safeguards for testing the evidence in the absence of contemporaneous cross-examination. [ 107 ] As a result, only substantive reliability will be at play when assessing the admissibility of the statements under the principled exception to the hearsay rule. [ 108 ] I will now examine the three statements sequentially.

Statement n o 1 [ 109 ] As a preliminary comment, it should be underlined that the reliability of the witness who is testifying to having received a hearsay statement is not a threshold reliability consideration under the principled hearsay exception, This is because the witness who testifies that he or she received or heard a hearsay statement is available to be cross-examined; his or her reliability as a witness can be fully tested [53] . [ 110 ] From a logical standpoint, the reliability of the recipient of a hearsay statement should not be a consideration either under a traditional hearsay exception.

Generally speaking, reliability and/or credibility concerns about the testimony of the recipient of the statement are matters properly left to the ultimate trier of fact – should the statement be held admissible. [54] [ 111 ] Having said that, in R. v. Humaid [55] , the Ontario Court of Appeal recognized that there may be cases where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value.

As noted by Doherty J., in such relatively rare cases, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. [56] [ 112 ] This is not the case here. In fact , for the purpose of the voir dire , I am satisfied that Ms. Dizhazy did state “he hit my nose, but don’t take him” to Officer Rochefort. I do acknowledge that Officer Jackson testified having overheard “he hit me, but don’t take him” which is a slightly different utterance. But Officer Jackson was further away from Ms.

Diszhazy than Officer Rochefort who, at the time, was kneeling on the ground very close to her. I also take into account that cross-examination of Officer Rochefort did not impact her reliability with respect to the accuracy of the words uttered by Ms. Diszhazy. [ 113 ] With respect to statement n o 1, Crown counsel argues that it is admissible under both the spontaneous utterance hearsay exception and the principled exception. [ 114 ] Hence, the first question I must address is whether the statement made by Ms.

Diszhazy to Officer Rochefort falls under the traditional “spontaneous utterance” hearsay exception. [ 115 ] While temporal considerations are not determinative, attempting to clarify the time frame of the events remains relevant to assess the degree of contemporaneity of statement n o 1. [ 116 ] I agree with Defence counsel that the evidence does not disclose a detailed time frame of the events. Officer Jackson and Officer Rochefort did not specify the time of the 911 call nor the time of their arrival on the premises.

It is therefore difficult to ascertain how much time elapsed between the 911 call and the first hearsay statement made by Ms. Diszhazy. [ 117 ] Officer Jackson mentioned that the accused made his incriminating statement within a short delay of their arrival. Officer Rochefort testified that Ms. Diszhazy made her first hearsay statement prior to the accused’s utterances. On the evidence, it is therefore reasonable to infer that statement n o 1 was made very shortly after the police entered the residence.

[ 118 ] I acknowledge that this does not provide a clear answer to the question as to how much time elapsed between the event which caused the injuries to Ms. Diszhazy and her statement to Officer Rochefort. [ 119 ] Let us recall, however, that the accused appeared to be anxiously waiting for the police. He was in the entrance when they arrived and his front door was already open. He urged the police to come in and help his wife. This behaviour is consistent with that of a person very much concerned with immediate expediency.

Based on the evidence, it is very unlikely that the accused would have waited hours before calling 911. In fact, it would be more reasonable to infer that he was quick to call 911. [ 120 ] Moreover, there is no indication in the testimony of the officers that there was any significant delay between the time they were informed of the 911 call and their decision to drive to the accused’s residence. Common sense also dictates that police responded promptly to the call. [ 121 ] Furthermore, Ms.

Diszazhy’s physical condition when the police arrived, the presence of blood on her face and on the floor – as evidenced by the photograph [57] –, the state of panic of the accused and the smell of alcohol still emanating from the breath of his wife all tend to support the view that the event which caused Ms. Diszhazy’s injuries took place shortly before the police intervention, definitely more so in terms of minutes than hours. [ 122 ] Considering time gaps in the evidence, I cannot conclude that statement n o 1 was made strictly contemporaneously to the occurrence which caused Ms.

Diszhazy to be found injured on the kitchen floor. I am nevertheless satisfied that there was some degree of contemporaneity between the two events, sufficiently so to remain within the realm of the “spontaneous utterance” hearsay exception. [ 123 ] But, as mentioned previously, the focus of the inquiry is foremost on spontaneity. To this end, it is crucial to determine whether the effects of the pressure or involvement from the event which excited the statement were still operating at the time the statement was made. [ 124 ] Regarding the physical state of Ms.

Diszhazy at the time she made statement n o 1 , Officer Jackson testified that when she first saw her, she looked dead, she was not moving, she had a visible injury to her eye and there was blood everywhere. Officer Jackson was surprised she could even talk. As for Officer Rochefort, she also noted the presence of blood in large quantity and noticed that Ms. Diszhazy had a bruise near her left eye and that her nose appeared fractured. Her eyes only opened when she touched her shoulder. [ 125 ] Ms. Diszhazy answered immediately: “He hit my nose, but don’t take him” to the question: “Are you okay”?

She said nothing more. It was her first interaction with a police officer upon sustaining her injuries. As Officer Rochefort noted, she uttered the statement with the voice of a person visibly in pain. [ 126 ] These observations demonstrate that Ms. Diszhasy was still experiencing the stress and ill-effects of the event which caused her serious injuries when she first interacted with the police.

This, coupled with the short time lapse between the event which triggered the statement and the statement itself, lend support to a finding that the effects of the involvement from the event were still operating and dominating Ms. Diszhazy’s thoughts at the time she made statement n o 1. [ 127 ] The facts in our case bear some cogent similarities to those in R . v. Hartling . [58] In that case, the paramedics who responded to a 911 call found the victim in her bedroom crying, intoxicated, bleeding and extensively injured. She told them, amongst other things, that the accused beat her up.

At trial, the victim claimed that she could not recall what happened to her. [ 128 ] On a voir dire , the trial judge found that the comments made to the first responders qualified as “spontaneous utterances” and were also admissible for the truth of their contents under the principled exception. Much like in our case, there was no direct evidence of the time lapse between the traumatic event and the statements to the first responders. [ 129 ] The trial judge nonetheless inferred from the evidence that the event which excited the utterance was recent in relation to the making of the statements.

To support this finding, the trial judge considered the victim’s emotional state and the fact that she was still bleeding from her mouth and from her orbital area when she provided the statements. [ 130 ] The Ontario Court of Appeal upheld the trial judge’s decision to admit the statements made by the victim under both the “spontaneous utterances” common law exception and the principled exception.

Of significance for the case at bar, the Court emphasized that the beating was the trigger for the statements and that the victim was emotional and still bleeding when the first responders arrived and spoke to her. [ 131 ] On another issue, I do not find that the manner in which statement n o 1 was elicited is problematic. The question asked by Officer Rochefort was an open-ended question limited to a simple inquiry of Ms. Diszhazy’s general well-being. As stated in the case of R . v.

MacKinnon [59] , “this manner of questioning is not of a nature that it removes the spontaneity of the utterances”. [ 132 ] In light of the evidence and the relevant case law, I am satisfied on a balance of probabilities that statement n o 1 was made with such spontaneity and contemporaneity that the possibility of concoction can be safely discounted. The possibility of concoction is also significantly reduced by the content of the admissible statement made by the accused who confessed having hit Ms.

Diszhazy as well as the multiple facial fractures incurred by her. [ 133 ] I therefore conclude that statement n o 1 falls under the traditional “spontaneous utterance” hearsay exception. [ 134 ] As will be discussed next, this is not one of the “rare cases”, where a hearsay statement falling within a traditional hearsay exception may be excluded because the indicia of necessity and reliability are lacking. On the contrary, I am of the view that statement n o 1 meets the threshold reliability requirement of the principled exception to the hearsay rule.

More precisely, I find statement n o 1 to be substantively reliable. My reasons are as follows.

[ 135 ] The Crown’s purpose in seeking to tender statement n o 1 into evidence for the truth of its contents is to establish that the accused hit Ms. Diszhazy on her nose. [ 136 ] The dangers arising from the difficulty of testing the first hearsay statement made by Ms. Diszhazy relate primarily to her sincerity and, to a lesser extent, to her accuracy. The danger relating to sincerity is in connection with her claim that the accused hit her.

Accuracy has to do with her assertion that the blow was to her nose. [ 137 ] The key issue is whether statement n o 1 is sufficiently reliable – from a substantive standpoint – to overcome those dangers. Put otherwise: Is statement n o 1 inherently trustworthy? [ 138 ] Firstly, because of the contemporaneous and, more so, the spontaneous nature of statement n o 1, it can be said that the circumstances in which it was made provide a badge of reliability and considerably reduce the risk of concoction. [ 139 ] Secondly, there is trustworthy evidence corroborating the material aspects of the hearsay statement.

The material aspects are two- fold: (1) that Ms. Diszhazy was hit by the accused; (2) that he hit her on the nose. [ 140 ] With respect to the first aspect, the fact that Ms. Dizhazy was hit by the accused is corroborated by his own independent statement which I already ruled to have been made freely and voluntarily and thus admissible. As a reminder, a voluntary confession is more likely to be true or reliable.

The striking similarity between the two statements is also a compelling indicia of reliability. [60] [ 141 ] In addition, as alluded to earlier, the observations made by Officers Jackson and Rochefort and the photograph of Ms. Diszhazy taken on the premises support the theory that she was victim of an assault committed by the only other person present on location when the police arrived, namely the accused. [ 142 ] The “but don’t take him” segment of statement n o 1 is also relevant in that it makes it less likely that she would have purposely incriminated her husband.

Why would she falsely incriminate him for a serious crime, while at the same time implore the police not to apprehend him? [ 143 ] As for the second aspect of the hearsay statement, Ms. Diszhazy’s claim that she was hit on her nose is corroborated by the visible facial injuries observed by both police officers, the photograph adduced into evidence and the Coroner’s report filed by Defence counsel. [ 144 ] The four-part framework outlined in Bradshaw requires me to consider alternative, even speculative, explanation for the statement. One alternative scenario that I have in mind is that Ms.

Diszhazy would have sustained her facial injuries by accidentally colliding her head with an item of furniture. But this scenario lacks plausibility as it is inconsistent with the evidence, in particular with the accused’s admission that he hit his wife. As for a third party being responsible for the assault, this hypothesis is simply inconceivable. [ 145 ] It might be the case that the accused hit Ms. Diszhazy in self-defence. Even so, this scenario does not undermine the truthfulness of statement n o 1 considering that the words uttered by Ms. Diszhazy do not purport to explain how the altercation came about.

They do not provide context to the event which caused her injuries. Of significance here, statement n o 1 is intended to be relied upon by the Crown to establish that the accused hit Ms. Diszhazy, not to specifically negate a self-defence claim. [ 146 ] The only remaining likely explanation for the statement is the declarant’s truthfulness about, and the accuracy of, the material aspects of statement n o 1.

Indeed, based on the circumstances of the making of the statement and the evidence led at the voir dire , I am able to rule out any plausible explanations on a balance of probabilities. [61] I am satisfied that statement n o 1 is so reliable that contemporaneous cross-examination on it would add little if anything to the process. [ 147 ] I conclude that statement n o 1 is inherently trustworthy. I am convinced on a balance of probabilities that it meets the threshold reliability requirement. That Ms. Diszhazy may have been under the influence of alcohol at the time does not alter my conclusion. Although Ms.

Diszhazy was in a diminished state, the evidence still permits to infer that she appeared to be nevertheless of a sound mind. [ 148 ] Statement n o 1 is admissible at the trial proper under both the traditional “spontaneous utterance” exception and the principled exception to the hearsay rule. For essentially the same reasons as those given in relation to the statement made by the accused, the probative value of statement n o 1 exceeds any prejudicial effect on trial fairness.

Statement n o 2 [ 149 ] My remarks regarding the reliability of the testimony of Officers Jackson and Rochefort apply to Officer Moogk’s account. Although the reliability of his version is theoretically not a consideration at the admissibility stage, I have no reason to doubt that, overall, he accurately conveyed the contents of the statement made by Ms. Diszhazy . [ 150 ] Like statement n o 1 , Crown counsel argues that the hearsay statement made to Officer Moogk – statement n o 2 – amounts to a spontaneous utterance and, as such, qualifies as an exception to the hearsay rule.

In the course of closing submissions, Crown counsel conceded that statement n o 2 could only be admissible in its entirety under the spontaneous utterance exception. He expressed the view that part of the statement could not meet the threshold reliability requirement of the principled exception. I will return to this issue in due time. [ 151 ] To begin with, I find it again relevant to assess when Officer Moogk interacted with Ms. Diszhazy in relation to the arrival of Officers Jackson and Rochefort. It will assist me in determining the degree of contemporaneity of statement n o 2 with the event which caused Ms.

Diszhazy’s injuries.

[ 152 ] Officer Moogk did not indicate at what time the 911 call was made, at what time he heard on the radio waves that two police cruisers were responding to the call and, finally, at what time he arrived at the accused’s place of residence. Officer Moogk did mention, however, that two police cruisers were already on the scene when he got there. It can therefore be inferred that he arrived after Officers Jackson, Rochefort, Bertholot and Vary. [ 153 ] Officer Moogk testified that a police officer was already looking after Ms. Diszhazy when he first saw her lying on the kitchen floor.

Officer Rochefort testified that Officers Vary and Bertholot were attending to Ms. Diszhazy when she approached the accused and received his statement. It logically follows that the police officer who was assisting Ms. Diszhazy when Officer Moogk entered the premises was either Officer Vary or Officer Bertholot. [ 154 ] From the evidence, it can be safely concluded that Officers Vary and Bertholot arrived not long after statement n o 1 was made. Also, Officer Moogk’s testimony suggests that he drove to the accused’s residence immediately after having heard that two police cruisers were on their way.

He must therefore have arrived on the scene shortly after Officers Vary and Bertholot and, consequently, not long after statement n o 1 was uttered by Ms. Diszhazy – again a matter of minutes. [ 155 ] It may also be inferred from Officer Moogk’s testimony that he crouched down next to Ms. Diszhazy pretty much immediately after entering the premises.

On the evidence, I conclude that statement n o 2 was uttered several minutes – at most – after statement n o 1. [ 156 ] Despite a lack of direct evidence regarding the exact time frame of the events, it is fair to conclude that statement n o 2 was made relatively contemporaneously to the event which caused Ms. Diszhazy’s injuries. [ 157 ] As a reminder, Officer Moogk’s observed that Ms. Diszhazy was lying sideways on the ground in a pool of blood. She had visible facial injuries. Her face was bruised and bloodied. Her eyes were initially shut. She had a weak tone of voice.

Officer Moogk’s observations are essentially identical to those made by Officers Jackson and Rochefort. In other words, not much changed between the time Officer Rochefort interacted with Ms. Diszazhy and the time she made her statement to Officer Moogk. This further supports my finding that little time elapsed between the two occurrences. [ 158 ] While there is some degree of contemporaneity between statement n o 2 and the triggering event, it remains to be seen whether it was made spontaneously. [ 159 ] Although Ms.

Diszhazy’s condition did not evolve much between the time she interacted with Officer Jackson and the time she made her statement to Officer Moogk, it is clear to me that statement n o 2 does not have the same degree of spontaneity as statement n o 1. [ 160 ] Statement n o 2 was not only made several minutes or so after statement n o 1, it was also made after Ms.

Diszhazy was in close proximity and had some form of interaction with three other police officers (Officer Rochefort as well as Officers Vary and Bertholot who were looking after her at the time the accused made his statement). [ 161 ] Moreover, in response to an open-ended question by Officer Moogk (“What happened?”) of the same nature as the one asked by Officer Rochefort (“Are you okay?”), Ms. Diszhazy was, this time around, able to provide some context surrounding the alleged altercation.

Her answer to Officer Moogk’s question suggests that the accused hit her out of anger solely because she wanted to call her child in British Columbia. [ 162 ] For one, this is indicative of an increased ability to process what happened to her, as compared to her earlier statement to Officer Rochefort. Secondly, this tends to show that she was less overwhelmed by the pressure or involvement of the event which caused her injuries.

Finally, the fact that she was able to somewhat contextualize the event demonstrates that she had some opportunity to reflect on it, leaving some room for misrepresentation. [ 163 ] For these reasons, I am unable to conclude that the spontaneity of the statement is clear and the danger of fabrication remote.

I rule that statement n o 2 is not admissible under the “spontaneous utterance” hearsay exception. [ 164 ] Now, can statement n o 2 be admitted into evidence under the principled exception to the hearsay? [ 165 ] Crown counsel submits that statement n o 2 can only be partially admitted into evidence under the principled exception. According to him, only the part pertaining to the accused striking Ms. Diszhazy’s nose and left eye area with an open hand meets the threshold reliability requirement.

Crown counsel acknowledges that the segment of statement n o 2 relating to the context surrounding the altercation does not satisfy the “substantive reliability” test. [ 166 ] I share Crown counsel’s point of view. My reasons are as follows. [ 167 ] There are three components to statement n o 2: (1) that the accused struck Ms. Diszhazy with an open hand – the right hand – to her nose and left eye area; (2) that he did so out of anger because she wanted to call her child in British Columbia; and (3) that the accused had consumed large amounts of alcohol.

The first two components qualify as “material aspects” of the statement. The third one is less material. [ 168 ] The dangers arising from the difficulty of testing the first component of statement n o 2 relate foremost to the sincerity of the declarant. Given that Ms.

Diszhazy detailed that the accused struck her with his right open hand – as in a slap – accuracy and/or perception should also be factored in the assessment. [ 169 ] For reasons already exposed in connection with the admissibility of statement n o 1, I find that the first component of statement n o 2 meets the substantive reliability threshold on a balance of probabilities. The claim that the accused struck Ms. Diszhazy on her nose

and left eye area is well corroborated by the evidence, including the statement made by the accused. [ 170 ] Cross-examination would add little if anything to that segment of statement n o 2. The only likely explanation for this part of the hearsay statement is the declarant’s truthfulness and accuracy about the fact that she was hit by the accused on her nose and left eye area. [ 171 ] While cross-examination might have been useful to determine how exactly Ms.

Diszhazy was struck, the issue as to whether the accused slapped her with his right hand or not is, in my view, a matter of ultimate reliability best left for the trier of fact to assess. I recognize, as the case law does, that the lack of testing by cross-examination on that specific aspect of the statement may still have an impact on its ultimate reliability. [ 172 ] The second component of statement n o 2 engages concerns about sincerity. The danger is that Ms.

Diszhazy may not have conveyed a full picture of the circumstances surrounding the altercation, thus leaving the impression that the accused struck her merely because she wanted to make a phone call. This may very well be the truth, but, unlike the first component of statement n o 2, there is no evidence corroborating her claim. Also, statement n o 2, does not carry the degree of inherent reliability that comes with a statement which does qualify as a “spontaneous utterance”. [ 173 ] I find that cross-examination of Ms.

Diszhazy would certainly have the potential to add to the part of statement n o 2 relating to the context leading to the alleged altercation. As such, this part of the statement does not meet the high threshold of the substantive reliability test. [ 174 ] The third component of statement n o 2 was not directly addressed by the parties. It seems to have been overlooked. The evidence also remains unclear as to how it came about. Officer Moogk could not say whether Ms.

Diszhazy volunteered the information that the accused consumed large amounts of alcohol or was, at the time, responding to a specific question. [ 175 ] In any event, this part of statement n o 3 does not really raise concerns about the sincerity of the declarant. In light of the observations made by the police officers, it is well documented in the evidence that alcohol was consumed by both the accused and Ms. Diszhazy. The evidence also points to the accused being, to a certain degree, under the influence of alcohol. This is not contentious. [ 176 ] However, I concede that what Ms.

Diszhazy meant by “large amounts” could have been a topic of cross-examination and may have shed light on the quantity and type of alcohol consumed by the accused. Notwithstanding, the specific amount of alcohol drank by the accused at the time of the events appears to me, at least at this stage, to be less material, if not peripheral to the issues at trial. At best, cross-examination would add only little to this part of the statement. It would be best to leave the ultimate determination of the probative worth of this item of evidence to the trier of fact in the context of the evidence as a whole.

The third component of statement n o 3 is therefore admissible under the principled exception. [ 177 ] In

summary, the first and third components of statement n o 2 are ruled admissible. To be clear, I refer here to the claim that the accused struck Ms. Dizhazy with an open hand – the right hand – on the nose and left eye area and the utterance that the accused consumed large amounts of alcohol. [ 178 ] The first component of statement n o 2 is highly probative for obvious reasons. The third component may ultimately carry less weight but I do not see how it could impact trial fairness.

In both cases, the probative value of the item of evidence exceeds its prejudicial effect, if any. [ 179 ] Finally, had I ruled that statement n o 2 was admissible under the “spontaneous utterance” exception, I would still have excluded the part of the statement pertaining to “context” because the indicia of reliability is lacking in the particular circumstances of this case, per the third part of the Starr/Mapara framework. Statement n o 3 [ 180 ] Much like statements n o 1 and 2, I do not question the reliability of the recipient of statement n o 3.

Cross-examination of Officer Diktakis did not undermine his claim that he took a verbatim statement of Ms. Diszhazy. [ 181 ] Crown counsel is of the view that statement n o 3 can only be admitted into evidence under the principled exception. During closing submissions, he conceded that the part where Ms.

Diszhazy provided context to the altercation does not meet the substantive reliability test, but the part of the statement where she described being hit on the left side of her face, bleeding and falling to the ground does. [ 182 ] I am aware that the circumstances in which statement n o 3 was made differ from those surrounding statements n o 1 and 2. Statement n o 3 is less contemporaneous to the event which caused Ms.

Diszhazy’s injuries Furthermore, it was not made spontaneously. [ 183 ] But the aspects of statement n o 3 which Crown counsel considers to be admissible are essentially identical to the contents of statement n o 1 – which I held to be admissible – and the admissible segments of statement n o 2. Given my findings with respect to statements n o 1 and 2 as well as the reasons supporting them, I must agree with Crown counsel’s position. To say more, at this stage, would entail unnecessary repetition of my reasoning. [ 184 ] Although perhaps less material, I would add that the part where Ms.

Diszhazy mentioned that the event occurred at 7:00 pm, that her husband was drunk, that he saw blood and called 911 is also supported by corroborative evidence and reasonable inferences which are a powerful indication of reliability.

[ 185 ] It can therefore be said that there is sufficient trust in the truth and accuracy of these elements of statement n o 2 . They would be unlikely to change under cross-examination. I find that they are substantively reliable for the purpose of admissibility. [ 186 ] Consequently, I conclude that the following relevant segments of the statement [62] taken by Officer Diktakis are admissible into evidence: Line 9: […] my husband hit me and I fell to the ground. This occurred today at 7:00 pm (December 29 th , 2019). He was drunk and when he saw I was bleeding a lot he called 911.

Line 14: He slapped me in the face on the left side of my face. Line 23: No (I did not lose consciousness), but I was bleeding a lot from the nose and fell to the ground. [ 187 ] As discussed previously, these items of evidence are probative.

They do not warrant exclusion under my residual discretion. [ 188 ] While I acknowledge that the admissible segments of statement n o 3 essentially mirror the admissible contents of statements n os 1 and 2, I do not believe that they should be excluded on the ground of needless presentation of cumulative evidence. [63] That said, for the purpose of the trial, it should be kept in mind that repetition does not add to the truthfulness of a statement.

CONCLUSION [ 189 ] For all these reasons, I partially grant the Crown’s application to have various statements tendered in evidence at the trial proper, More specifically, I rule the following to be admissible: ➢ The statement made by the accused: “Take care of her, I love her but I hit her”. ➢ Statement n o 1 in its entirety: “He hit my nose, but don’t take him”. ➢ Statement n o 2 only partially, which essentially boils down to: “He struck me with an open hand – the right hand – to my nose and left eye area” and “He consumed large amounts of alcohol”. ➢ Statement n o 3 only partially, as already identified hereinabove (paragraph 186). [ 190 ] In light of my ruling on this application, I will further discuss with the parties the scope of their agreement regarding what evidence at the voir dire will specifically apply to the trial proper. __________________________________ DAVID SIMON, J.C.Q M e Thierry Sabourin Attorney for the prosecution M e Christian Houle Attorney for the accused Dates of hearing: October 4 th , 2021 and January 27 th , 2022.