2018 NBCA 56, 2018 NBCA 56

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 15-17-CA SHAWN MURRAY FREDERICKS APPELLANT SHAWN MURRAY FREDERICKS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Fredericks v. R., 2018 NBCA 56 Fredericks c.

R., 2018 NBCA 56 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice French CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge French Appeal from decisions of the Court of Queen’s Bench: October 6, 2016 (conviction) Appel de décisions de la Cour du Banc de la Reine : le 6 octobre 2016 (déclaration de culpabilité) History of case: Decisions under appeal: Unreported Historique de la cause : Décision frappée d’appel : inédite Appeal heard: January 18, 2018 Judgment rendered : September 27, 2018 Appel entendu : le 18 janvier 2018 Jugement rendu : le 27 septembre 2018

Reasons for judgment by: The Honourable Justice Richard Concurred by: The Honourable Justice Quigg The Honourable Justice French Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondents: Kathryn Gregory, Q.C. Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge French Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory, c.r. THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by RICHARD, J.A. I.

Introduction [ 1 ] At the close of a jury trial, Shawn Murray Fredericks was convicted of (1) intentionally discharging a firearm at the residence of Lena Canning knowing that, or being reckless as to whether, someone was present there at the time ( s. 244.2(3) (

b) of the Criminal Code ); and (2) having been in possession of a firearm when prohibited by a court order ( s. 117.01(3) (a)). The trial judge sentenced Mr. Fredericks to consecutive terms of imprisonment totalling nine years. The judge also issued corollary orders under various provisions of the Criminal Code . [ 2 ] The central issue at trial was the identification of Mr. Fredericks as the shooter. Mr. Fredericks argued his identity had not been proven beyond a reasonable doubt. Obviously, the jury thought otherwise. Mr.

Fredericks now appeals his conviction, claiming the trial judge made three discrete errors of law. One of these related to the admission of hearsay under the principled approach to the hearsay rule; another concerns improper cross-examination of a defence witness the judge allowed; and the third involves the judge’s failure to instruct the jury on the limited use it could make of the prohibition order that was adduced in evidence. For the reasons that follow, I would dismiss the appeal.

In sum, I conclude the judge did not err in admitting the hearsay under the principled approach and, although counsel for the Attorney General concedes the latter two grounds, I agree with her submission that these errors did not result in any substantial wrong or miscarriage of justice.

II. Factual Background [ 3 ] In the early evening of May 15, 2015, at Ms. Canning’s home on McKenzie Avenue in Moncton, Ms. Canning and two men, Lenny Phillips and Nathan Melvin, were getting into Mr. Melvin’s van when Mr. Fredericks arrived driving a grey Chevrolet Impala. Ms. Canning, who had previously been in a relationship with Mr. Fredericks, approached the Impala to talk to him. A verbal altercation ensued. At one point, a bottle containing a meal replacement drink was thrown out the driver’s side window spilling its contents on Ms. Canning. The altercation escalated. Ms. Canning’s friend, Mr.

Phillips, exited the van, approached the Impala, and, through the open driver’s side window, punched and stabbed Mr. Fredericks in the face, leaving him injured and bleeding. Mr. Fredericks eventually drove away. [ 4 ] Shortly after this altercation, someone fired shots at Ms. Canning’s home. This occurred at around 6:30 p.m., just as Shawna Douthwright was walking with her daughter on McKenzie Avenue. Ms. Douthwright saw what she described as an older model silver car approaching in the wrong lane and briefly stopping. She then heard what she believed were “three gunshots” before she saw the car speed away.

Although Ms. Douthwright was only about 15 to 20 feet away from the vehicle when it stopped, her visibility was somewhat impaired by the glare of the sun off the windshield. She was nevertheless able to note the vehicle had only one occupant, whom she described as a man of about 20 to 30 years of age with either blond hair or a shaved head. She did not see a firearm. [ 5 ] Meanwhile, Peter Shannon was talking to his stepfather a short distance up the street on McKenzie Avenue when he heard what he described as “maybe five gunshots.” He then saw a grey car racing down the street.

He was able to note the licence plate of that vehicle: GSP 758. [ 6 ] Immediately after the shooting, Lena Canning called 911. The call was received at 6:38 p.m. Ms. Canning told the 911 operator her ex-boyfriend, Mr. Fredericks, had shot at her home from what she described as a grey Lumina with a dent in the back. She said the vehicle then fled on McKenzie Avenue toward Killam Drive. A recording of the call reveals an obviously distraught caller who was nevertheless coherent in describing the incident. Ms. Canning stated Mr. Fredericks had been the only occupant of the vehicle from which the shots were fired.

She described him as a 32-year-old man, measuring six feet six inches, and covered in tattoos. Twice she said she wanted a “restraining order” against him. [ 7 ] The police responded quickly to the 911 call. At the scene, they located bullet holes in the siding and in the inside wall of Ms. Canning’s home. Bullets and bullet fragments were recovered. That same evening, a police officer took a statement from Ms. Canning. The officer transcribed the statement as Ms. Canning described the events. Once this was done, Ms. Canning was asked to read the statement over and sign it. She did so. [ 8 ] In her statement, Ms.

Canning described the verbal altercation with Mr. Fredericks in the presence of Nathan Melvin and Mr. Phillips, which she said occurred close to 6:00 p.m. She stated Mr. Fredericks threw a “carton of milk” at her. She did not, however, mention the physical altercation between Mr. Phillips and Mr. Fredericks. [ 9 ] According to Ms. Canning’s statement, as Mr. Fredericks was leaving following the altercation, he yelled that “he was going to get a gun.” At this point, Ms. Canning returned inside her home to clean up. Mr. Phillips followed her. Mr. Melvin left. About 15 minutes later, Ms.

Canning saw the same vehicle drive by and saw Mr. Fredericks, the vehicle’s lone occupant, take out a gun, which looked like a .45, and shoot at her house. The vehicle did not stop. It merely slowed down in front of the house. Ms. Canning yelled and ducked as “six to eight shots” were fired. [ 10 ] In her statement, Ms. Canning reported that one or more calls were made from Mr. Fredericks’ phone to hers in the aftermath of the shooting, but she did not answer them. [ 11 ] Ms. Canning was asked to attend at the police station the next day to give a second statement, this one under oath.

She replied she wanted to think about it. [ 12 ] Jeffrey Harrison lived on 8 th Street in Moncton. He was acquainted with Mr. Fredericks, having known him for about 12 years; however, they had in fact only interacted a few times and he knew him only as “Shawn.” The evening of the shooting, Mr. Harrison saw what he described as a silver Chevrolet Impala pull into the driveway across the street. Mr. Harrison saw Mr. Fredericks exit the vehicle, go behind a nearby shed and then behind an apartment building. After four or five minutes behind the apartment building, Mr.

Fredericks then returned behind the shed, where he spent time doing something with plywood and tires. He then

returned to the car and left. Mr. Harrison did not see Mr. Fredericks carrying anything, though he explained his view was partiallyobstructed by the vehicle. [13] Mr. Harrison described Mr. Fredericks as “a tall, lanky, skinny type” person. He identified him as the accusedat trial, though adding Mr. Fredericks had by then gained some weight. According to Mr. Harrison, the person he saw had a shaved head,although not totally bald. He saw some hair, which he described as “dirty blond” or “brown.” Mr. Harrison stated Mr.

Fredericks waswearing a white or bone-coloured long-sleeve shirt. [14] At some point during the evening of May 15, 2015, Karylin Anderson and her mother arrived at their home onPrince Street in Moncton. As they arrived, they observed a man had parked his vehicle in their parking spot. Ms. Anderson’s motherwaved at him to move his vehicle, and the man moved it “a couple of parking spots over.” Ms. Anderson described the vehicle as a four-door greyish car. She said the man had blood on him and was bleeding from the right side of his face.

She described him as a white malewearing a sweater and jeans who was a “[l]ittle bit taller than [her],” though adding later she was “unsure of the exact height.” Ms.Anderson measures about 5’7” to 5’8”. She did not see the man’s hair because he was wearing a ball cap. Ms. Anderson went inside thebuilding, from where she took a picture of the individual because he had blood on him and was “acting a little bit not right.” However,the photo turned out to be too blurry to be of any use. From her window, Ms.

Anderson saw the man take a bag out of the vehicle’s trunkbefore leaving through their backyard. [15] John Larabee was the superintendent of the apartment building on Prince Street. According to him, at about7:30-8:00 p.m. on May 15, 2015, just as it was getting dark outside, one of the tenants reported to him that a car had been parked in herspot and, when motioned to move his car, the driver had just moved over to another spot. Upon learning this, Mr. Larabee went outsideand found the car abandoned but still idling. He reached inside and turned off the ignition. No one was around. Mr.

Larabee noted theback end of the vehicle was “smashed in and the gas was leaking out.” Mr. Larabee’s wife called the police. They arrived withinminutes. At trial, Mr. Larabee identified the grey Chevrolet Impala Mr. Fredericks had been driving as the vehicle he had seen in theparking lot. He was able to identify it by the dent in the back of the vehicle. The vehicle bore the same licence plate number as thatwhich Peter Shannon had noted. [16] Pierre Michaud worked as a dispatcher and driver for a taxi company. The evening of May 15, 2015, hereceived a call for a pick up at Willow Street in Moncton.

He was unsure of the time of the call but believed it to have been made atapproximately 5:00 or 6:00 in the evening since it was during daylight hours. When he arrived, someone opened the door to the residenceand made a signal to him the passenger would be just a minute or so. Not long after, another individual came out of the residence and gotinto the front passenger seat of the taxi. The passenger directed Mr. Michaud where he wanted to go, and he eventually exited the cabnear the intersection of Douglas and Pacific Avenues. Mr.

Michaud described his passenger as a male measuring about six feet, who hada scar on the left side of his cheek. In his view, the scar “seemed to be healing” and was not “a fresh wound.” Mr. Michaud said theperson he picked up was wearing jeans and a T-shirt. He did not see any tattoos on the person. [17] A day or two later, Mr. Michaud was asked to attend at the police station. Mr. Michaud says that, at the time,he was unaware of the shooting described above. Mr. Michaud gave a statement to the police and later viewed a photo lineup. Heidentified Mr.

Fredericks as the passenger he had picked up at 2 Willow Street on May 15. [18] Ms. Canning attended at the police station on May 16, 2015. She was given all warnings typically associatedwith a KGB statement (named after the decision of the Supreme Court in R. v B. (K.G.), (CSC), [1993] 1 S.C.R. 740,[1993] S.C.J. No. 22 (QL)). These warnings included how the statement might be used and the consequences of making a falsestatement. The police officer informed Ms. Canning he was investigating a possible attempted murder by Mr. Fredericks. She refused togive a statement under oath.

Her refusal appears to have been partly grounded in her belief that:

(1) Mr. Fredericks had not intended tokill her when he shot at her house; and

(2) Mr. Fredericks just needed help. However, Ms. Canning’s principal reason for refusing to givea statement under oath was her belief the police would extract from her information that was unrelated to the previous day’s incident. Shewas concerned she would be asked about drugs. Ms. Canning told the officer they should rely on the statement she had already given,which she described as a truthful account. [19] The video-recorded interview that followed, though not under oath, revealed an emotionally distraught womanwho provided details of the May 15 incident consistent with the contents of her initial statement.

She was firm when it came toidentifying Mr. Fredericks as the shooter. [20] In the days that followed, Ms. Canning prepared a three-page statement in her own handwriting. She did this ofher own volition and without anyone asking. The statement was given to the police on May 25, 2015. The first part of the statement isreproduced below with minor and insignificant editorial corrections: Myself and Lenny were leaving to go to the store in Nathan’s van. Lenny was in the van so was Nathan. I was closing my house door asShawn pulled in my driveway.

I walked over to the car Shawn drove and we had a disagreement about me getting a drive with Nathan. Nathan stepped out of the van and came over to the car. Shawn proceeds to tell Nathan that they will no longer be friends if he takes me anywhere. This goes on for a minute and one of them finally says fuck it. Shawn then throws an Ensure drink and it goes all over me. I’m done with the situation and tell Nathan I’ll walk to the store later. I ask Lenny to come in the house at this point.

He sees me covered in milk and gets out of the van, goes over to the car, reaches in and just starts hitting Shawn whose hands are on the steering wheel at this time getting ready to pull out. Lenny kicks the car trying to pull Shawn out while Shawn by the look of it is reaching for his seatbelt to get out of the car to defend himself. I was trying to get Lenny to stop because it was uncalled for. I did not approve of him acting as so. Lenny was at my home for only a few hours before this situation took place. He was released from detox that day. Staying at my home for a night while waiting for a drive to Sussex.

As the altercation continued, Lenny pulled something from his pocket and stabbed Shawn in the face just missing his eye. This was extreme and uncalled for. At this time Shawn tazed him, the tazer was not well charged and did not do damage. Lenny then let Shawn go and he pulled out yelling something. I did not hear clearly. [ 21 ] In this statement, Ms. Canning then goes on to explain her children had been elsewhere at the time of the incident. She clarifies she was unaware Mr. Phillips had taken from her home the pair of scissors he used to stab Mr.

Fredericks, adding there was no reason for him to have taken these from her home. The statement concludes as follows: Lenny and I went back into the home where I yelled at him and questioned why he would have taken the scissors to begin with. He was standing in the kitchen and I left, walked down my first flight of steps, stopped, looked out my window and saw Shawn driving by. I then heard shots, ran to my daughter’s room and hid in a corner for like 10 minutes. [ 22 ] The police investigation led to the seizure of the grey Chevrolet Impala located in the parking lot on Prince Street.

In one of the vents of the vehicle, the police located a bullet casing. The police also noted a substance on the centre console of the vehicle, from which they took a sample. On May 17, 2015, a rifle wrapped in a leather jacket was found hidden behind the shed on 8 th Street where Mr. Harrison had seen Mr. Fredericks. A swab was taken of a substance on the jacket. [ 23 ] Expert analyses of the investigation’s findings revealed: (1) the fragments found in the walls of Ms.

Canning’s home could have come from the rifle found behind the shed on 8 th Street; (2) the casing found in the grey Impala had been cycled through the action of this same rifle; (3) the swab taken from the edge of the leather jacket that was wrapped around the rifle and the one taken from the substance on the console of the grey Impala both revealed DNA with an extremely high likelihood of having emanated from Mr. Fredericks.

[ 24 ] Mr. Fredericks was arrested on May 22, 2015. He was charged with having intentionally discharged a firearm at Ms. Canning’s home knowing that or being reckless as to whether another person was present there ( s. 244.2 of the Criminal Code ); and with having been in possession of a firearm while prohibited from doing so by a court order ( s. 117.01(3) (a)). He elected to be tried by a judge and jury. [ 25 ] At trial, the prosecution’s case revealed the facts set out above, with the exception that Lena Canning recanted and denied Mr. Fredericks was the shooter.

As explained below, this led the prosecution to seek the admission of the recording of the 911 call and the two written statements Ms. Canning had given under the principled exception to the hearsay rule. The video-recorded interview was considered during the voir dire , but was not adduced into evidence at trial. [ 26 ] Ms. Canning had been summoned to attend the trial and was present during portions of it; however, she was not present when it came time for her to testify. A warrant was issued for her arrest. Within an hour, Ms.

Canning was in court explaining she had been required to attend to family obligations. After a stern warning, she was ordered to return the following day. She did so and, after taking the usual oath, testified. [ 27 ] Regarding the events of May 15, 2015, Ms. Canning described how Mr. Melvin had come to her residence in order to give her and Mr. Phillips a ride to a store. Mr. Phillips had already entered Mr. Melvin’s van when Mr. Fredericks arrived and started yelling at her. A verbal altercation ensued. Mr. Fredericks warned Mr. Melvin that if he pursued a friendship with Ms.

Canning then their own friendship was over. In the altercation, Mr. Fredericks threw a bottle of “Ensure” at Ms. Canning. She turned to walk back toward her house. As she was doing so, she heard a “racket,” turned around and saw Mr. Phillips with his hands reaching inside Mr. Fredericks’ car. He had his hands around Mr. Fredericks’ throat and he then punched him in the face “over and over.” Ms. Canning says she went over to the vehicle and tried to stop Mr. Phillips. When she finally managed to do so, Mr. Fredericks left the area screaming at them. [ 28 ] Ms.

Canning was shown a photo of the grey Chevrolet Impala. She testified it looked similar to the vehicle Mr. Fredericks had been driving except for the large dent in the back. This clearly contradicted her statements to the 911 operator and to the police on the night of the incident. [ 29 ] Ms. Canning provided additional details of the altercation’s aftermath. She explained that, when she and Mr. Phillips retreated inside the house, she “went completely crazy” because Mr. Phillips’ hands were covered in blood, adding: “[I] was just screaming at him […] so badly I thought I was going to puke.” Ms.

Canning testified she later walked down the first set of stairs in her home, looked out the window and noticed a vehicle driving by. According to her, this had happened approximately 20 minutes after the altercation outside her home. She continued by stating that, although she initially believed the driver of the vehicle to have been Mr. Fredericks, she was no longer “sure it was Shawn at all.” She explained that, when she thought back, the person did not look like him. Ms. Canning stated the person driving the vehicle had not been wearing a black shirt, which is what she said Mr.

Fredericks had been wearing at the time of the altercation in her driveway. She also claimed that, unlike Mr. Fredericks, the driver did not have black hair and tattoos. Ms. Canning denied seeing a firearm. She believed the shots were fired without the vehicle coming to a stop. [ 30 ] Ms. Canning testified she sought refuge from the shots in her daughter’s bedroom. In the process, she dropped her cell phone. After the shooting, the cell phone repeatedly rang, but she denied knowing who was calling. According to Ms. Canning, Mr. Phillips eventually picked up her phone and urged her to call 911. Ms.

Canning hesitated because she was worried about her children, but Mr. Phillips insisted. Ostensibly to explain her recantation, Ms. Canning told the court she “was made to say certain things.” However, at this point in her testimony, she did not deny the truth of the information she conveyed in the 911 call. She simply explained she did not remember what she said during the 911 call. When the recording of the call was played, Ms.

Canning admitted it was her voice on the phone but stated: “ The whole call surprises me, the whole fucking thing.” [ 31 ] At this point in the trial, Crown counsel invoked s. 9(2) of the Canada Evidence Act , R.S.C. 1985, c. C-5, and applied for leave to cross-examine Ms. Canning on her previous statements. Since the judge’s ruling allowing the cross-examination is not challenged on appeal, it is not necessary to describe the process that led to the judge allowing the cross-examination.

Before the cross-examination began, the judge gave the jury a mid-trial instruction explaining the 911 recording had been admitted solely “as part of the narrative, not to prove the truth of its content.” [ 32 ] Crown counsel’s cross-examination regarding Ms. Canning’s previous statements focused only on the 911 call and the two written statements: the one written by the police officer the night of the incident and the one Ms. Canning wrote herself a few days later. No questions related to the interview of May 16, 2015. Crown counsel identified several inconsistencies between Ms.

Canning’s testimony and her previous statements. In her attempt to explain these, Ms. Canning denied having made some of the assertions contained in her statements and alleged Mr. Phillips had threatened her. As for her handwritten statement, Ms. Canning testified she was being “harassed by Child Services and the police about thirty times a day” so she did not have time to think things through, suggesting it was only when she had occasion to reflect on the event that she realized it was not Mr. Fredericks who had shot at her house. Ms. Canning admitted she remained in contact with Mr.

Fredericks following the shooting.

[ 33 ] After concluding his cross-examination, Crown counsel applied to have the 911 recording and Ms. Canning’s written statements admitted for the truth of their content under the principled approach to the hearsay rule. He argued the statements were both necessary and reliable, and he pointed to R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787, in support of his request. [ 34 ] A voir dire ensued to determine (1) whether the necessity requirement was met and (2) whether the statements passed the threshold reliability component of the principled approach to the hearsay rule.

At its outset, defence counsel acknowledged the necessity requirement had been met. [ 35 ] During the voir dire , Crown counsel requested that the 911 recording be once again played in court. At this point, Ms. Canning became quite emotional. When asked why this request triggered such a reaction, she blurted out, “Because you can’t help who you love okay,” referring to her feelings toward Mr. Fredericks. She argued with Crown counsel, saying she shouldn’t be testifying because it was “a conflict of interest […] [b]ecause I love Shawn and this is killing me.” She repeated time and again she was no longer sure Mr.

Fredericks had been the shooter. [ 36 ] The video-recording of Ms. Canning’s interview with the police on May 16, 2015, was admitted during the voir dire as relevant evidence on the question of threshold reliability. This was the interview during which Ms. Canning refused to provide a statement under oath but had nevertheless answered questions. In her testimony during the voir dire , Ms. Canning adopted the part of the recording during which she revealed there had been a cycle of violence between her and Mr.

Fredericks. [ 37 ] At the close of the voir dire , the trial judge concluded the threshold reliability component had been met, and he ruled the statements admissible under the principled approach to the hearsay rule. [ 38 ] When the trial resumed, Crown counsel sought to recall Ms. Canning for further “direct examination,” specifying he would no longer be cross-examining under s. 9(2) of the Canada Evidence Act . This was allowed. Ms. Canning was essentially made to repeat what she had already said at trial. At one point, she again admitted, “I love Shawn.” [ 39 ] In cross-examination by defence counsel, Ms.

Canning was asked if what she had told the police was a ‘bunch of lies.” She replied: “You – you know what I’m gonna tell you, yes, I could have, do I remember, no.” She denied having made some of the allegations contained in her first statement, denied having read it over before signing it, and then denied much of what was contained in that statement. She claimed she barely told the officer anything that evening. [ 40 ] While Ms.

Canning admitted having gone to the police station on May 16, 2015, she claimed she had gone “completely against [her] will.” She was questioned about the content of the video recording of that day’s interview. She testified she “knew [she] was sitting there lying” and alleged Mr. Phillips had told her not to say anything about his own involvement and had threatened her with death if she told the police what happened in the driveway the previous day. At one point, Ms. Canning added she was “extremely high in that video statement.” The cross-examination raised numerous inconsistencies between Ms.

Canning’s various accounts of what happened. [ 41 ] In re-examination, Ms. Canning was questioned regarding the statement she herself had written. She said at the time she wrote the statement she believed it to be the truth. [ 42 ] Three defence witnesses were called to testify at trial. Mr. Fredericks was not one of them. [ 43 ] The first, Travis Mercer-Manning, testified he bought the grey Chevrolet Impala in February 2014 and later sold it to Jamie Cormier sometime in April of that year. In cross-examination, Mr.

Mercer-Manning admitted having a lengthy criminal record and acknowledged he was serving a sentence of incarceration at the time of trial. [ 44 ] The second defence witness was Jamie Cormier. Crown counsel informed the judge he anticipated he would refer to s. 13 of the Charter in his cross-examination of the witness because he expected Mr. Cormier would admit to having been the person who discharged the firearm in the direction of Ms. Canning’s residence. The trial judge inquired whether this would require any special instruction to the jury and both counsel replied they did not believe so. Before Mr.

Cormier testified, the judge was informed the

witness would be invoking s. 5(2) of the Canada Evidence Act . [ 45 ] As anticipated, Mr. Cormier testified he was the one who shot at Ms. Canning’s residence. From photographs introduced in evidence, he identified the firearm found behind the shed on 8 th Street as the one he used in the shooting. He stated he was familiar with the area where the firearm was located because he had once lived there. Mr. Cormier also identified the grey Impala as the one from which he fired the shots. [ 46 ] Mr. Cormier claimed he resided close to the Canning residence. He testified that, o n May 15, 2015, Mr.

Fredericks had borrowed the Chevrolet Impala and Mr. Cormier was awaiting its return. When Mr. Fredericks arrived, he was acting hysterically and was bleeding. After telling Mr. Cormier what happened, Mr. Fredericks left in a grey Honda Civic. As for Mr. Cormier, he left in his Chevrolet Impala, went to an address on McKenzie Avenue to retrieve his gun, and then drove further down McKenzie Avenue where he shot at Ms. Canning’s home. He maintained having done so in order to send a message to the occupants. According to Mr.

Cormier, he then hid the firearm behind a shed on 8 th Street, abandoned his vehicle in a parking lot near his mother’s home, walked to his mother’s home on Willow Street and called for a taxi. [ 47 ] Mr. Cormier acknowledged having a lengthy criminal record. The record paints a picture of Mr. Cormier as a violent person with an extreme lack of respect for court orders. [ 48 ] During cross-examination, Mr. Cormier revealed Mr. Fredericks is his brother-in-law. When questioned about physical descriptions, he said he, himself, stood at six feet to six feet, one inch and that Mr.

Fredericks is taller “by a great amount […] probably six-six.” Mr. Cormier has a visible scar on the left side of his face which, he explained, was caused by an old injury. The scar was described as descending from Mr. Cormier’s left eye all the way down to his jaw. He stated that, unlike Mr. Fredericks, who was bleeding from the face when he returned the vehicle, he did not have any fresh injuries on the day in question. [ 49 ] Mr. Cormier claimed having become aware of Mr. Fredericks’ arrest about a week after the shooting incident. Although he knew Mr.

Fredericks was facing charges arising from the incident, Mr. Cormier did not offer to give the police any statement because he knew this would lead to him being charged. He explained having come forth in court because he wanted to do the “right thing.” “[T]hat’s why I’m here […] today”. At this point in the cross-examination, Crown counsel referred Mr.

Cormier to s. 13 of the Charter , which provides that “[a] witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.” Mr. Cormier acknowledged general awareness of the provision and admitted knowing his testimony could not be used against him. [ 50 ] The last defence witness was Mr. Melvin, who, on the day of the incident, resided near Ms. Canning’s home. According to him, Ms.

Canning called him that day asking if he would drive her to get some “speed.” When he arrived at her residence, she and a person he knew only as “Lenny” exited the house. Ms. Canning did not immediately get into his van. Instead, she began ranting, at which point he observed Mr. Fredericks who was seated in a grey car that had pulled in behind the van. As Mr. Fredericks was asking to speak to him, Mr. Melvin got out of his van and went over to the grey vehicle. Mr. Fredericks told him not to lend any assistance to Ms. Canning. Meanwhile, Ms. Canning was “mouthing off,” saying Mr.

Melvin could be friends with whomever he wanted. According to Mr. Melvin, as Mr. Fredericks was throwing a bottle of “Ensure” out the window, it struck Mr. Melvin’s arm and the contents spilled on Ms. Canning. Ms. Canning “started yelling,” so Mr. Phillips exited the van and punched Mr. Fredericks in the face two or three times. Mr. Phillips was blocking Mr. Fredericks’ ability to get out of his car, so Mr. Fredericks used a Taser. At this point, Mr. Phillips “pulled out a pair of Lena’s scissors out of his back pocket and stabbed [Mr. Fredericks] in the face.” Mr.

Fredericks backed out of the driveway and left, yelling at Mr. Melvin not to do anything for Ms. Canning and uttering profanities. Mr. Melvin then returned home. [ 51 ] Mr. Melvin testified that, about 15 minutes after he left Ms. Canning’s home, he was sitting on his front doorstep having a cigarette when he heard “a couple of pops.” Initially, he thought it might have been “kids with firecrackers.” He went over to McKenzie Avenue to see what was “going on.” Arriving there, he heard some “commotion coming from” Ms. Canning’s house, so he went in and inquired. Ms. Canning asked him if he thought Mr.

Fredericks might have fired the shots, and he replied, “no.” She said to him she had not seen who shot at her house. She still wanted Mr. Melvin to drive her to get drugs, but he declined and left. [ 52 ] According to Mr. Melvin, Ms. Canning called him later that evening from “witness protection” and asked him to pick her up at a hotel and drive her and Mr. Phillips to get some narcotics. He obliged. The three then all returned to Mr. Melvin’s home. During this time, Ms. Canning was “trying to rack her head” to determine who shot at her house. While they were at Mr.

Melvin’s home, someone said he heard on a scanner the police had found a car in which someone had committed suicide. This caused Ms. Canning to become upset because she believed the person could have been Mr. Fredericks. Eventually, Mr. Melvin drove Ms. Canning and Lenny back to the hotel.

[ 53 ] In cross-examination, Mr. Melvin could not explain the discrepancy between his account of Ms. Canning not knowing who had fired the shots and the recording of the 911 call in which she had clearly identified Mr. Fredericks as the shooter. Mr. Melvin acknowledged being friends with Mr. Fredericks. He admitted that, when Lenny was punching and then stabbing Mr. Fredericks in the encounter at Ms. Canning’s home, he wanted Mr. Fredericks to get out of the car so they could “take care of,” Mr.

Phillips. [ 54 ] At the close of their respective cases, but prior to the addresses to the jury, Crown counsel brought R. v. Jabarianha , 2001 SCC 75 , [2001] 3 S.C.R. 430 , to the attention of both the judge and defence counsel. That decision states it is usually improper for the prosecution to cross-examine a witness on his or her knowledge of s. 13 of the Charter . Crown counsel asked whether the judge might want to consider a special direction to the jury. Both defence and Crown counsel indicated they were not going to mention s. 13 of the Charter in their addresses to the jury.

Later, prior to giving instructions to the jury, the trial judge informed counsel he had decided not to “venture into giving instructions as to the question put to the witness, Jamie Cormier, as to his knowledge of the protection [afforded by s. 13 of the Charter ].” [ 55 ] In his address to the jury, defence counsel submitted the evidence supporting a conviction was limited to the 911 recording and Ms. Canning’s two statements. He argued Ms. Canning had offered credible explanations for having recanted. He also pointed to some inconsistencies between Ms.

Canning’s initial version and the testimony of some of the prosecution’s witnesses, and he invoked consistencies between Ms. Canning’s trial testimony and those of the defence witnesses. Defence counsel particularly emphasized glaring incongruences between the descriptions some of the witnesses had given of the individual they saw on the day in question and certain photographs that depicted Mr. Fredericks’ actual appearance on that day. [ 56 ] Crown counsel began his address by summarizing some of the evidence.

He submitted some of the incongruences could be explained by difficulties in recalling and describing physical characteristics of a person whom the witness did not know and whom the witness had only briefly seen. He emphasized, however, that Jeffrey Harrison’s testimony could not be so discounted because he actually knew Mr. Fredericks. Recall that Mr. Harrison testified he saw Mr. Fredericks at the very location where the firearm and the jacket were later found. Crown counsel then turned to Ms. Canning’s testimony and submitted she had lied to protect Mr. Fredericks, who she loved.

He invited the jury to conclude Ms. Canning had been accurate and truthful regarding the identity of the shooter during the 911 call and in her two statements; and he pointed to certain indicia of reliability. Crown counsel especially emphasized the statement Ms. Canning had herself written and argued that her explanation of having been influenced by Mr. Phillips could not apply to that statement, in which she had set out the details of Mr. Phillips’ involvement in the driveway incident. In that same statement, prepared unprompted, Ms. Canning again identified Mr. Fredericks as the shooter.

Crown counsel submitted Mr. Fredericks and his friends concocted a story to exonerate Mr. Fredericks, and he argued their testimony was not worthy of belief. [ 57 ] In one particularly compelling argument, Crown counsel pointed to Mr. Melvin’s testimony that someone heard on a police scanner that a car had been found in which someone “had shot themselves.” Both Mr. Melvin and Ms. Canning testified that, when this was said, Ms. Canning fell to the floor “bawling her eyes out” thinking Mr. Fredericks had killed himself. As Crown counsel pointed out, this reaction was consistent with Ms. Canning knowing Mr.

Fredericks had just committed a serious crime and had access to a firearm. As he rhetorically asked, what else could explain such a reaction? [ 58 ] None of the grounds of appeal allege an error in the trial judge’s charge to the jury, although the last one alleges an error by omission. As a result, it will not be necessary for me to summarize the judge’s instructions. [ 59 ] The jury returned a verdict of guilty on both counts. III. Issues on appeal [ 60 ] As stated earlier, Mr. Fredericks raises three discrete grounds of appeal.

He claims: (1) the trial judge erred in allowing hearsay evidence to be admitted into evidence under the principled approach when the threshold reliability requirement had not been met; (2) the trial judge erred in allowing and then not correcting questions to a witness about his awareness of the right against self- incrimination guaranteed by s. 13 of the Charter ; and (3) the trial judge erred in not providing any instructions as to what use could be made of the prohibition order Mr. Fredericks was alleged to have violated.

[ 61 ] Counsel for the Attorney General concedes the errors alleged in the second and third grounds of appeal. She points out both Crown and defence counsel were responsible for leading the judge to commit the errors. I agree. I do note that neither of the lawyers involved in this appeal were counsel at trial. [ 62 ] Although conceding two errors, counsel for the Attorney General submits the appeal should nevertheless be dismissed on application of the curative proviso described in s. 686(1)(b)(iii) of the Criminal Code . In

summary, that provision allows a court of appeal to dismiss an appeal, notwithstanding a demonstrated error on a question of law, if the court is of the opinion no substantial wrong or miscarriage of justice occurred. IV. Analysis A. Hearsay [ 63 ] Mr. Fredericks submits Ms. Canning’s out-of-court statements should not have been admitted under the principled approach to hearsay evidence because the threshold reliability requirement had not been met. As explained below, hearsay evidence is presumptively inadmissible.

It can, however, be admitted if it falls into a category of recognized exceptions or if it is ruled admissible pursuant to the principled approach to hearsay evidence. In this case, Ms. Canning’s out-of-court statements were hearsay because the purpose of admitting them was to prove the truth of their content, specifically the identity of the shooter. None of the traditional exceptions apply in this case; therefore, admissibility had to be founded on the principled exception to hearsay.

Under this exception, hearsay may be admitted if it meets the twin criteria of necessity and reliability, and if its probative value outweighs any prejudicial effect. The necessity criterion is not only met when a witness is not available to testify but also when it is the testimony of the witness that is not available, such as when a witness refuses to testify or when a witness recants an earlier statement. As for the reliability criterion, a distinction must be made between threshold reliability and ultimate reliability. The trial judge decides whether threshold reliability has been met.

This happens when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Khelawon , at para. 49 , and R. v. Bradshaw , 2017 SCC 35 , [2017] 1 S.C.R. 865, at para. 26 . Ultimate reliability, on the other hand, is for the trier of fact, in this case the jury, to decide. It involves determining whether hearsay evidence, once admitted, will be relied upon to decide the issues in the case.

As with other kinds of evidence, a trial judge has the discretion to exclude hearsay evidence, even when it meets the twin criteria of necessity and reliability, if the prejudicial effect of the evidence outweighs its probative value. [ 64 ] Mr. Fredericks conceded, both at trial and on appeal, that the necessity requirement was met because of Ms. Canning’s recantation. The errors alleged to have been committed at trial relate to the threshold reliability determination and the judge’s failure to weigh probative value against prejudicial effect. On this last point, Mr. Fredericks’ argument can be easily rejected.

At the outset of the voir dire , counsel for Mr. Fredericks pointed to those aspects of the statements he considered more prejudicial than probative. With the consent of Crown counsel, these were redacted. Once this agreement was reached, the voir dire proceeded solely on the issue of threshold reliability and no argument was made that the statements, as redacted, should be excluded on the basis of their prejudicial effect outweighing their probative value. In those circumstances, there was no judicial error.

In any event, once threshold reliability was established, it was clear the probative value of the evidence would outweigh its prejudicial effect. [ 65 ] According to Mr. Fredericks, the trial judge erred in three respects in his determination threshold reliability had been established: (1) he looked at similarities in Ms.

Canning’s own statements as corroboration of the truth of the statements; (2) he considered motive to recant as going to the truth of the statements; and (3) he considered the importance of the evidence to the Crown’s case. [ 66 ] Recall that, in the voir dire , the trial judge heard testimony from Ms. Canning regarding the circumstances surrounding her having made the 911 call and having given two written statements. The judge also heard testimony from the 911 operator, from the police officer who took the first statement from Ms.

Canning – the one given the night of the shooting – and from the officer who received from Ms. Canning the statement she had herself written. In addition, the content of the video-recorded interview with Ms. Canning was adduced at the voir dire , although the Crown was not seeking to have it admitted at trial. [ 67 ] Defence counsel’s argument at trial against admissibility was brief.

He submitted threshold reliability had not been established because none of the statements the prosecution wanted admitted at trial had been made under oath, none had been made after a police warning regarding the consequences of lying, none had been video recorded, and only the 911 call had been audio recorded. [ 68 ] The trial judge concluded threshold admissibility was established and therefore ruled the 911 recording and the statements admissible for the truth of their content. The judge recognized the statements had not been made under oath and following

police warnings, but he noted other factors could serve as assurances of reliability. His reasons for decision are as follows: The issue of reliability in the voir dire, the Court has to assure itself that the threshold of reliability is established by the Crown on abalance of probability. In that regard I heard Mrs. Canning who explained or [gave] reasons why she no longer remembers about certainparts of her evidence or she simply did not acknowledge to its truthfulness.

The reasons she gave were that she had been influenced byothers to what she said in the 911 call, to start with the original statement was not volunteered, if I may use that term or – or thecircumstances surrounding the statement or such that she had to give the statement that she did not – that she did. Upon having heard hertestimony and more specifically in the cross-examination the question of admitting been influenced by Mr. Phillips or other people notmentioned or named by Mrs. – they had no foundation. There was no – what was said by Mr.

Phillips about - if we accept that he toldher that she should not mention any names or whatsoever; this had no effects what so – so ever on her 911 call and the similarity of thefacts in her statement of May the 15 and the 30 with the 911 call are evident from reading the – reading and hearing the 911 audio. Shewas interviewed by Constable Loisel, who explained the circumstances of her statement on May the 15, 2015 and there is no reason ordoubt as to the question of reliability. She was not coerced, forced or pressured in any way to give the statement.

She was aware of it’s –of its circumstances as she wanted a restraining order from the Court on Mr. Frederick[s]. It was intended that it be acted upon by herdemeanour. This statement is crucial for this case. At the time she had no reasons to lie. She might have been stressed when she gave thestatement, with reasons mind you, but it just gave her – she just give her statement, the 911 and her statement and the 911 call and stressthat she was under and the conditions that surrounded it give it more reliability.

This conclusion is reinforced by the questions on cross-examination that required the Crown to put into evidence another video. This one taken on May the 16, 2015, in this video while refusingto give a KGB statement Mrs. Canning repeats on many, many occasions that what she said the night before in her statement was thetruth and she had nothing more to add and what was said was exactly what had transpired.

She is also reluctant to give a KGB becauseshe believes that the officer might want to get information on some other crimes, drugs or whatsoever so the reasons of not giving theKGB is motivated by, and look it’s what she decided to do on that day then she was not forced to, in any event, to give the previousstatements. As for the reasons why Mrs. Canning is recanting her original version of event, it is – it has been made clear that she – she’sstill in love Mrs. – Mr. Fredericks, that’s what she says, and she does not want him to be – be jailed for a long period of time.

There isalso a pattern of violence in their relationship and this is certainly another motivation to recant on her original version. As for the second statement signed on May the 25th , 2015 it is as reliable as the other two exhibits for the same reasons. She wrote it by herself and evencalled the officer to have him pick it up so it was not even asked by the officer to provide that latest statement so it was, I think, asurprise for them to get another statement and this statement is, again, for what was said in the previous statement and the 911 call in linewith the – her original version of events.

Even if the statement, oh sorry, on the balance of probability the threshold of reliability hasbeen met and the Court is satisfied that the statement was made voluntarily and there is no factor which would tend to bring theadministration of justice into disrepute if the statement were admitted for its truth. Even if the statement is admitted as substantiveevidence I will direct the jury to consider carefully the circumstances in [assessing the credibility] of prior inconsistent statement relatedto Mrs. Canning testimony.

As for the ultimate reliability it will be for the jury to decide. [69] In my respectful view, the trial judge did not approach the issue of threshold reliability as he should have. Iagree with Mr. Fredericks’ counsel: the judge considered irrelevant factors. Nevertheless, I conclude the judge’s ruling that the 911recording and the statements were admissible is correct. [70] As stated above, hearsay statements are presumptively inadmissible.

Such statements may, however, beadmitted under one of the traditional exceptions to the hearsay rule or by application of the principled exception elaborated by theSupreme Court of Canada in R. v. Khan, (CSC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81 (QL), and its progeny. [71] Not all out-of-court statements constitute inadmissible hearsay.

Evidence adduced solely to prove a statementwas made, such as for the purpose of explaining someone’s subsequent actions, do not constitute hearsay. “Hearsay is an out-of-courtstatement tendered for the truth of its contents”: Bradshaw, at para. 1. [72] The reason hearsay is presumptively inadmissible is “because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth”: Bradshaw, at para. 1.In Khelawon, Charron J. explains: […] the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability.

Without themaker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. Thestatement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjustverdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seekingfunction. [para. 2] [73] However, there are instances where the dangers of hearsay are alleviated by certain circumstances.

Over theyears, it has been recognized that, when those circumstances exist, admitting hearsay presents minimal danger of impeding accurate factfinding. There are instances where “[a] hearsay statement, because of the way in which it came about, may be inherently reliable, orthere may be sufficient means of testing it despite its hearsay form”: Khelawon, at para. 42. Thus came the creation of traditional

exceptions to the hearsay rule, because courts recognized that, in particular circumstances, it would be exclusion, rather than admission,that would impede the truth finding function of a trial. However, in some instances, a rigid application of these exceptions could lead toeither “the needless exclusion of evidence in some cases, or its unwarranted admission in others”: Khelawon, at para. 42. There was acall for greater flexibility. Eventually, the Supreme Court would respond.

Thus, in Khan, the Supreme Court adopted an approach “basedon the two guiding principles that underlie the traditional common law exceptions: necessity and reliability”: Khelawon, at para. 42. [74] The principled approach has undergone refinement since its inception in Khan. Its current iteration, particularlyas it relates to reliability, is found in the majority reasons in Bradshaw, which build on the general principles derived from Khelawon.

Onthe question of threshold reliability, Karakatsanis J. for the majority explained as follows: […] Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty oftesting it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsaydeclarant before the trier of fact (Khelawon, at paras. 35 and 48).

In assessing threshold reliability, the trial judge must identify thespecific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v.Hawkins, (CSC), [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant'sperception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they havebeen overcome.

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes fortesting truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement isinherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, 2013 CSC 41 , [2012 SCC 41, [2013] 2S.C.R. 720], at para. 30). [paras. 26-27] [75] For a statement to be procedurally reliable, there must be adequate substitutes for the traditional method oftesting of the evidence by contemporaneous cross-examination. “These substitutes must provide a satisfactory basis for the trier of fact torationally evaluate the truth and accuracy of the hearsay statement”: Bradshaw, at para. 28.

They “include a video recording of thestatement, the presence of an oath, and a warning about the consequences of lying” and are usually coupled with “some form of cross-examination of the declarant, such as preliminary inquiry testimony […] or cross-examination of a recanting witness at trial”: Bradshaw,at para. 28. [76] As for substantive reliability, it is established if the circumstances in which the statement was made make itinherently trustworthy. To determine this, the trial judge can also consider any evidence that corroborates or conflicts with the statement.The standard is high.

It requires the judge to be satisfied “that the statement is ‘so reliable that contemporaneous cross-examination ofthe declarant would add little if anything to the process’”: Bradshaw, at para. 31, quoting from Khelawon, at para. 49.

In assessingsubstantive reliability, the trial judge may consider corroborative evidence if it establishes that alternative and even speculativeexplanations for the hearsay statements are unavailable: Bradshaw, at para. 48. [77] The Supreme Court also recognizes that procedural reliability and substantive reliability “are not mutuallyexclusive” and “may work in tandem”: Bradshaw, at para. 32; in other words, elements of both can combine to overcome the specifichearsay dangers a statement might present, even in a situation where neither procedural reliability nor substantive reliability would havesufficed on its own. [78] Applying the appropriate framework to the facts in this case, I come to the conclusion the hearsay dangersraised by the material aspects of the statements tendered for their truth are sufficiently alleviated by both procedural and substantivereliability factors, which, although standing on their own might not have been sufficient to alleviate the danger, when combined make thestatements sufficiently reliable to overcome the dangers.

I come to this conclusion without resort to corroborative evidence. [79] The first step in the threshold reliability framework is to identify the material aspect of the hearsay statementsthat are tendered for their truth. In the present case, this is solely the identification of Mr. Fredericks as the shooter. All other elements ofthe offences were proven without the need to resort to Ms. Canning’s out-of-court statements, and none of that evidence was seriouslycontested, if at all, at trial.

On this material aspect, the three statements tendered in evidence can effectively be treated as one in the sensethat there is a commonality to all three. In each, Ms. Canning unequivocally identified Mr. Fredericks as the shooter. [80] The second step in the analysis is to identify the specific hearsay dangers raised by the material aspect of thestatements. The real danger in the present case is the absence of contemporaneous cross-examination to test some aspects of thereliability of the assertions made in the statements. Accuracy of the statements is not an issue. The 911 call was recorded and the other

two statements were signed by Ms. Canning. It is beyond question she identified Mr. Fredericks as the shooter. Similarly, memory and narration cannot be the basis for any hearsay danger in the present case. The 911 call was made immediately after the shooting and the first written statement given shortly thereafter. In my view, it is the inability to test perception and sincerity that constitute the dangers in the present case. Perception relates to the observations Ms. Canning made that caused her to claim Mr. Fredericks was the shooter. Contemporaneous cross-examination could have focused on whether Ms.

Canning had actually made the observation she claimed or whether she was surmising the shooter to have been Mr. Fredericks based on their earlier animus and him having been the driver of the same vehicle from which the shots emanated. It could also have explored whether Ms. Canning was sincere in her identification of Mr.

Fredericks as the shooter. [ 81 ] Having identified the dangers, the question to be answered is whether, considering procedural and substantive indicators of reliability, these dangers are overcome. [ 82 ] In my view, there are indeed sufficient indicia of procedural and substantive reliability, which, when combined, alleviate the dangers by means of adequate substitutes for contemporaneous cross-examination. [ 83 ] Addressing first the indicia of procedural reliability, one immediately notes the absence of an oath or solemn affirmation. Mr.

Fredericks argues there was also the absence of a warning about the consequences of lying. While this may have been so for the 911 call and the first statement, recall that, in the video-recorded interview admitted as evidence on the voir dire , the police clearly gave Ms. Canning these warnings and she still maintained Mr. Fredericks was the shooter. Thus, it cannot be said there was a total absence of warnings. Moreover, and perhaps more importantly, this is not a case where there was no opportunity at all of cross- examining the declarant. Ms.

Canning was available for cross-examination as a recanting witness, at which time any questions regarding her perception and sincerity could have been raised. [ 84 ] As for substantive reliability indicators, these are found in the circumstances in which the statements were made. The recording of the 911 call is an especially reliable statement. Almost part of the res gestae because it was made immediately after the shooting, the call contains much indicia of trustworthiness not only in the details Ms. Canning related to the 911 operator, but also in the emotions with which those details were provided.

Particularly on the matter of sincerity, the nature and tone of the call make it inconceivable that Ms. Canning could have, as Mr. Fredericks contends, been persuaded to lie about her identification of him as the shooter. In my view, the 911 call in particular was so reliable that its content was unlikely to change under cross-examination. [ 85 ] When the procedural and substantive indicia of reliability are combined, one cannot but conclude that the statements are sufficiently reliable to overcome the identified dangers of perception and sincerity.

The dangers of perception and sincerity could easily be addressed in cross-examination at trial, something that weighs heavily in the analysis. [ 86 ] In the end, I conclude the trial judge was right to admit the statements and leave to the jury the task of assessing their ultimate reliability. B. Questioning a witness re: awareness of s. 13 of the Charter [ 87 ] Mr. Fredericks submits it was an error of law for the judge to have allowed Crown counsel to cross-examine Mr. Cormier on his knowledge of s. 13 of the Charter . As noted, this

section provides that any “witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.” [ 88 ] Mr. Fredericks claims the error was compounded by the judge’s failure to instruct the jury appropriately once the cross-examination was erroneously allowed. To support his argument, Mr.

Fredericks points to the Supreme Court’s decision in Jabarianha , in which the Court held it was not proper for Crown counsel to cross-examine a witness regarding his or her knowledge of s. 13 of the Charter , except in rare circumstances, such as when there is evidence of a plot to lie or to obtain favours from the testimony. [ 89 ] In the following paragraph, Major J. explains the Supreme Court’s reasoning for such a ruling: Given that the protection of s. 13 is limited, and the witness’s knowledge of the protection may be incorrect, the jury might wonder, and perhaps need instruction, about the inferences it should draw from a witness's potentially imperfect knowledge of s. 13 of the Charter , as

well as the extent to which a witness felt immune from prosecution. Such a process could shift the jury’s focus from the accused'sinnocence or guilt to the witness’s understanding of the consequences of testifying under the limited protection of the Charter. There isalso a real risk that a jury would give improper emphasis to the application of the limited protection of s. 13 of the Charter: see R. v.Swick (1997), (ON CA), 35 O.R. (3d) 472 (C.A.), per Rosenberg J.A., at p. 478. These types of questions before ajudge and jury have serious potential to be prejudicial.

These types of questions before a judge sitting alone, as was the case here, areless likely to be as harmful, but in either case should be avoided. [para. 22] [90] Major J. goes on to explain that, in some circumstances, such probing of a witness may “encroach onprivileged information” where the witness received counsel on the protection guaranteed by s. 13. He also points out that “[a] witness’sknowledge of the law is not co-extensive with a tendency to lie” (para. 26), which makes cross-examination on the witness’s knowledgeof s. 13 of little or no probative value.

On the other hand, the effect of this type of questioning could be prejudicial. [91] Although it was an error for the trial judge to have allowed Crown counsel to cross-examine Mr. Cormier onhis understanding of, and reliance on, s. 13 of the Charter, it was an error with very little consequence. Mr. Cormier admitted he had notgone to the police to report his involvement in the shooting despite knowing his good friend was charged with having fired the shots atMs. Canning’s house. Mr.

Cormier also stated he did not want to give a statement to the police because he knew it would result incharges, so “that’s why I’m here […] today.” The protection afforded by s. 13 of the Charter was only raised after Mr. Cormier hadalready offered these explanations. Defence counsel did not object to Crown counsel’s cross-examination, except to point out adiscrepancy regarding the extent of the protection after Crown counsel erroneously suggested it would protect Mr. Cormier against beingarrested for the crime.

Neither did defence counsel seek any special instruction from the judge once Crown counsel brought Jabarianhato his attention. Both sides agreed they would make no mention of s. 13 of the Charter in their address to the jury. In my view, defencecounsel at trial knew full well the insignificant impact the reference to s. 13 of the Charter would have in the circumstances. This is whyhe did not ask the judge to intervene further. In my view, when both lawyers informed the judge they would not be making any referenceto Mr.

Cormier’s awareness of his s. 13 Charter rights in their arguments to the jury, the judge was justified to decide more harm thangood would arise from his bringing the error to the attention of the jury. C. The prohibition order [92] Mr. Fredericks acknowledges the Crown was required to prove he had been ordered not to possess any firearmsas an essential element of the second count in the indictment. However, Mr. Fredericks submits the jury should have been clearlyinstructed the evidence could only be used for this specified purpose.

The judge did not give the jury a limiting directive on this issue.Because the prohibition order contained a reference to a criminal conviction for an offence under s. 244 of the Criminal Code, Mr.Fredericks says it was critical for the jury to be carefully instructed in order to avoid propensity reasoning. [93] As stated above, counsel for the Attorney General concedes the exhibit admitted at trial should have beenvetted to remove the reference to the previous conviction and the jury should have been cautioned against propensity reasoning. [94] The Attorney General’s concession is a sensible one.

There is simply no question Crown counsel at trialshould have vetted the prohibition order and removed the reference to the previous offence before tendering it for admission at trial; noquestion defence counsel at trial should have objected to the admission of the prohibition order without such a redaction; no questionboth counsel should have advised the judge to caution the jury against propensity reasoning; no question the judge should have notadmitted the unredacted prohibition order; and, no question the judge should have cautioned the jury about the limited use it could makeof the prohibition order. [95] Without diminishing the seriousness of these errors, I note their impact could have been much more significanthad there been examination or cross-examination regarding the prohibition order, had the order contained any detail regarding theprevious conviction other than the mention of the Criminal Code

section number, or had the prosecutor invited the jury to use propensityreasoning. None of this occurred. D. The curative proviso

[ 96 ] Section 686(1)(b)(iii) of the Criminal Code provides that even where the judgment of the trial court is tarnished by legal error, an appeal may still be dismissed if the court of appeal “is of the opinion that no substantial wrong or miscarriage of justice had occurred.” This is referred to as the curative proviso.

The Supreme Court has stated there are two situations where the use of the curative proviso is appropriate: “(1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict”: R. v. Sekhon , 2014 SCC 15 , [2014] 1 S.C.R. 272, at para. 53 , summarizing the principles set out in R. v.

Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823, at paras. 29-31 . [ 97 ] In my view, both of the errors the Crown concedes were made fall into the first of these categories. [ 98 ] Regarding the first, I note that, in Jabarianha , the Supreme Court applied the curative proviso notwithstanding the error of allowing Crown counsel to raise s. 13 of the Charter in cross-examination of a defence witness. In my view, while Mr. Cormier’s knowledge of s. 13 should not have been explored on cross-examination, it cannot be said to have been the basis for the rejection of his testimony. Mr.

Cormier was an unsavoury witness, with a lengthy criminal record, whose testimony was at odds not only with Ms. Canning’s statements, but also with the unshaken testimonies of two other witnesses who had no motive to lie:

(1) Jeffrey Harrison, who knew Mr. Fredericks and saw him go behind the shed where the gun was found wrapped in a jacket on which Mr. Fredericks’ DNA was found; and

(2) Karylin Anderson, who saw a man with blood on him exit the same vehicle from which the gunshots had been fired. [ 99 ] As for the second error, any propensity reasoning arising out of the admission of the unvetted prohibition order cannot be said to have played a role in the determination of the identity of the shooter. Identity was solidly established by the evidence the jury obviously found credible: Ms. Canning’s statements together with the testimony of Mr. Harrison and Ms. Anderson. [ 100 ] The characterization of these two errors as harmless is supported by the fact Mr.

Fredericks’ trial counsel did not object to either Crown counsel’s cross-examination of Mr. Cormier on his knowledge of s. 13 of the Charter or the admission of the unvetted prohibition order, did not ask the judge to give any particular instructions to the jury regarding these two errors, and did not object to the judge’s instruction to the jury. While these failures of trial counsel do not relieve the trial judge of his responsibilities and are not fatal to Mr. Fredericks raising these errors on appeal, they are indicative the errors were not considered serious. V.

Disposition [ 101 ] For these reasons, I would dismiss the appeal. Version française de la décision de la Cour rendue par LE JUGE RICHARD I. Introduction [1] À la fin d’un procès devant jury, Shawn Murray Fredericks a été déclaré coupable : (1) d’avoir déchargé intentionnellement une arme à feu en direction du domicile de Lena Canning sachant qu’il s’y trouvât une personne ou sans se soucier qu’il s’y trouvât ou non une personne (infraction visée à l’ al. 244.2(3)

b) du Code criminel ) et (2) d’avoir eu une arme à feu en sa possession pendant que cela lui était interdit par une ordonnance judiciaire (infraction visée à l’ al. 117.01(3) a)). Le juge du procès a condamné M. Fredericks à des peines d’emprisonnement consécutives totalisant neuf ans . Le juge a aussi rendu des ordonnances accessoires en vertu de diverses dispositions du Code criminel .

[2] La principale question à trancher lors du procès était celle de l’identification de M. Fredericks comme le tireur. M. Fredericks a fait valoir que son identité n’avait pas été prouvée hors de tout doute raisonnable . De toute évidence, le jury était d’un autre avis . M. Fredericks fait maintenant appel de sa déclaration de culpabilité et affirme que le juge du procès a commis trois erreurs de droit distinctes .

L’une de ces erreurs se rapportait à l’admission d’une preuve par ouï-dire sur le fondement de la méthode d’analyse raisonnée de la règle du ouï-dire; une autre a trait au contre-interrogatoire inapproprié, permis par le juge, d’un témoin à décharge; et la troisième a trait au défaut du juge de donner une directive au jury sur l’usage restreint qu’il pouvait faire de l’ordonnance d’interdiction présentée en preuve . Pour les motifs qui suivent, je suis d’avis de rejeter l’appel .

En somme, je conclus que le juge n’a commis aucune erreur lorsqu’il a admis la preuve par ouï-dire en se fondant sur la méthode d’analyse raisonnée et, bien que l’avocate du procureur général admette les deux derniers moyens, je souscris à son observation selon laquelle ces erreurs n’ont causé ni tort important ni erreur judiciaire grave . II. Contexte factuel [3] Tôt dans la soirée du 15 mai 2015, au domicile de M me Canning situé sur l’avenue McKenzie, à Moncton, M me Canning et deux hommes, Lenny Phillips et Nathan Melvin, montaient dans la fourgonnette de M. Melvin lorsque M.

Fredericks est arrivé au volant d’un véhicule gris de marque Chevrolet Impala. M me Canning, qui avait déjà eu une relation avec M. Fredericks, s’est approchée de l’Impala pour lui parler . Il s’en est suivi un affrontement verbal. À un moment donné, on a lancé par la fenêtre du conducteur une bouteille contenant un substitut de repas à boire dont le contenu s’est répandu sur M me Canning . L’affrontement s’est envenimé . L’ami de M me Canning, M. Phillips, est sorti de la fourgonnette, s’est approché de l’Impala et, par la fenêtre ouverte du conducteur, a frappé et poignardé au visage M.

Fredericks, qui a été blessé et qui saignait. M. Fredericks a fini par s’en aller en voiture . [4] Peu après cet affrontement, quelqu’un a fait feu en direction du domicile de M me Canning. Cela s’est produit vers 18 h 30, au moment où Shawna Douthwright marchait avec sa fille sur l’avenue McKenzie . M me Douthwright a vu ce qu’elle a décrit comme une vielle automobile de couleur argent s’approcher dans la mauvaise voie et s’arrêter brièvement . Elle a ensuite entendu ce qu’elle a cru être [TRADUCTION] « trois coups de feu » avant de voir l’automobile partir en vitesse .

Même si M me Douthwright ne se trouvait qu’à environ 15 à 20 pieds du véhicule lorsqu’il s’est arrêté, sa visibilité était quelque peu réduite par le reflet du soleil sur le pare-brise . Elle a néanmoins pu constater que le véhicule n’avait qu’un seul occupant, qu’elle a décrit comme un homme âgé d’environ 20 à 30 ans qui était blond ou qui avait la tête rasée . Elle n’a pas vu d’arme à feu . [5] Pendant ce temps, Peter Shannon parlait à son beau-père non loin de là, plus haut sur l’avenue McKenzie, lorsqu’il a entendu ce qu’il a décrit comme [TRADUCTION] « peut-être cinq coups de feu » .

Il a ensuite vu un véhicule gris descendre la rue à toute vitesse. Il a pu noter le numéro de plaque d’immatriculation de ce véhicule : GSP 758 . [6] Immédiatement après les coups de feu tirés, Lena Canning a appelé le service d’urgence 911. On a reçu l’appel à 18 h 38. M me Canning a dit au service 911 que son ex-petit ami, M. Fredericks, avait fait feu en direction de son domicile à partir de ce qu’elle a décrit comme un véhicule gris de marque Lumina qui avait une bosse à l’arrière. Elle a dit que le véhicule a ensuite filé sur l’avenue McKenzie vers la promenade Killam.

L’enregistrement de l’appel révèle une appelante apparemment bouleversée, qui était néanmoins cohérente dans sa description de l’incident. M me Canning a déclaré que M. Fredericks était le seul occupant du véhicule d’où les coups de feu ont été tirés. Elle l’a décrit comme un homme de 32 ans qui mesurait six pieds et six pouces et qui était couvert de tatouages . Elle a dit à deux reprises qu’elle voulait obtenir une [TRADUCTION] « ordonnance interdictive » contre lui. [7] La police a répondu rapidement à l’appel au service 911.

Sur les lieux, les policiers ont trouvé des trous de balle dans le bardage et la paroi intérieure de la maison de M me Canning . Des balles et des fragments de balles ont été recueillis . Ce soir- là, un policier a recueilli la déclaration de M me Canning . Le policier a transcrit la déclaration au fur et à mesure que M me Canning relatait les événements . On a ensuite demandé à M me Canning de lire la déclaration et de la signer, ce qu’elle a fait . [8] Dans sa déclaration, M me Canning a relaté l’affrontement verbal avec M. Fredericks en présence de Nathan Melvin et de M.

Phillips, affrontement qui a eu lieu peu avant 18 h à ses dires. Elle a déclaré que M. Fredericks avait lancé un [TRADUCTION] « carton de lait » en sa direction. Elle n’a toutefois pas mentionné l’affrontement entre M. Phillips et M. Fredericks. [9] Selon la déclaration de M me Canning, en quittant les lieux après l’affrontement, M. Fredericks a crié qu’[TRADUCTION] « il allait chercher un pistolet ». À ce moment, M me Canning est rentrée dans sa maison pour se laver. M. Phillips l’a suivie. M. Melvin est parti. Environ un quart d’heure plus tard, M me Canning a vu le même véhicule passer par là et a vu M.

Fredericks, le seul occupant du véhicule, prendre un pistolet, qui ressemblait à un pistolet de calibre .45, et faire feu en direction de sa maison. Le véhicule ne s’est pas arrêté. Il n’a fait que ralentir devant la maison. M me Canning a crié et s’est baissée au moment où [TRADUCTION] « six à huit coups » ont été tirés.

[10] Dans sa déclaration, M me Canning a affirmé qu’un ou plusieurs appels ont été faits à partir du téléphone de M. Fredericks au sien à elle à la suite des coups de feu tirés, mais elle n’y a pas répondu. [11] On a demandé à M me Canning de se rendre au poste de police le lendemain pour faire une seconde déclaration, celle-ci sous serment. Elle a répondu qu’elle voulait y réfléchir. [12] Jeffrey Harrison vivait sur la 8 e Rue à Moncton. Il connaissait M. Fredericks depuis environ 12 ans; cependant, ils n’avaient eu en réalité que quelques interactions et il ne le connaissait que sous le prénom de « Shawn ».

Le soir des coups de feu tirés, M. Harrison a vu ce qu’il a décrit comme un véhicule gris de marque Chevrolet Impala s’engager dans la voie d’accès de l’autre côté de la rue. M. Harrison a vu M. Fredericks sortir du véhicule et aller derrière une remise située à proximité, puis derrière un immeuble d’habitation. Après avoir passé quatre ou cinq minutes derrière l’immeuble d’habitation, M. Fredericks est ensuite retourné derrière la remise, où il a passé du temps à faire quelque chose avec du contreplaqué et des pneus. Il est ensuite retourné à l’automobile et est parti. M. Harrison n’a pas vu M.

Fredericks porter quoi que ce soit, quoiqu’il ait expliqué que sa vue était partiellement obstruée par le véhicule . [13] M. Harrison a décrit M. Fredericks comme une personne [TRADUCTION] « grande, élancée et maigre ». Il a identifié M. Fredericks comme l’accusé lors du procès, en précisant toutefois que ce dernier avait pris du poids avant le procès. Selon M. Harrison, la personne qu’il a vue avait la tête rasée, mais n’était pas totalement chauve. Il a vu des cheveux, qu’il a décrits comme [TRADUCTION] « châtain clair » ou [TRADUCTION] « bruns ». M. Harrison a affirmé que M.

Fredericks portait une chemise à manches longues blanche ou de couleur os . [14] À un moment donné pendant la soirée du 15 mai 2015, Karylin Anderson et sa mère sont arrivées à leur domicile situé sur la rue Prince, à Moncton. En arrivant, elles ont remarqué qu’un homme avait stationné son véhicule dans leur place de stationnement . La mère de M me Anderson a demandé à l’homme d’un signe de la main de déplacer son véhicule, et il l’a déplacé [TRADUCTION] « quelques places de stationnement plus loin » . M me Anderson a décrit le véhicule comme une berline grisâtre.

Elle a dit que l’homme avait du sang sur lui et qu’il saignait du côté droit du visage. Elle l’a décrit comme un homme blanc qui portait un chandail et un jean et qui était [TRADUCTION] « [l]égèrement plus grand qu[’elle] », bien qu’elle ait précisé plus tard qu’elle n’était [TRADUCTION] « pas certaine de la taille exacte » . M me Anderson mesure environ cinq pieds et sept pouces ou cinq pieds et huit pouces. Elle n’a pas vu les cheveux de l’homme parce qu’il portait une casquette.

M me Anderson est entrée dans l’immeuble, d’où elle a pris une photo de l’homme parce qu’il avait du sang sur lui et qu’il [TRADUCTION] « se comportait de manière un peu anormale » . La photo s’est toutefois révélée trop floue pour être d’une utilité quelconque. De sa fenêtre, M me Anderson a vu l’homme sortir un sac du coffre du véhicule avant de partir en traversant leur cour arrière. [15] John Larabee était le concierge de l’immeuble d’habitation situé sur la rue Prince. Selon lui, vers 19 h 30 à 20 h le 15 mai 2015, juste à la tombée de la nuit, l’

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