R v Johnston, 2018 MBCA 8

Citation: R v Johnston , 2018 MBCA 8 Date: 20180209 Dockets: AR17-30-08820; AR17-30-08845 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron BETWEEN : ) H. S. Leonoff, Q.C. , HER MAJESTY THE QUEEN ) R. N. Malaviya and ) C. P. R. Murray Respondent/Appellant ) for the Crown ) ) R. I.

Histed - and - ) for the Accused ) ) Appeals heard: BRETT AAron johnston ) October 25 , 2017 ) (Accused) Appellant/Respondent ) Judgment delivered: ) February 9 , 2018 STEEL JA [ 1 ] The accused appeals his conviction on a charge of assault causing bodily harm. The Crown seeks leave to appeal and, if granted, appeals the sentence. The judge imposed a suspended sentence, two years of supervised probation and 150 hours of community service. The sentence also included a ten-year firearms prohibition, a DNA order and a victim surcharge of $200. [ 2 ] The complainant was the accused’s girlfriend.

He admitted assaulting her, but argued that it was in self-defence. The judge, while allowing that the complainant may have hit first, rejected the defence in view of the excessive force used. The complainant sustained numerous injuries as a result of the assault. Sadly, six months after the assault, the complainant took her own life. Facts [ 3 ] The complainant and the accused had been in a relationship for approximately three years. At the time of the assault, they were living together. As noted above, prior to the preliminary hearing, on October 23, 2014, the complainant took her own life.

The Crown relied on the evidence of her friend, police officers and an emergency room physician. In addition, after a voir dire where the judge ruled them admissible, it tendered a statement which the complainant had provided to the police and a comment she made to a police officer. [ 4 ] The friend, Emma Miguez (Miguez), testified that all of them were at a birthday party, but when they were ready to leave, they were unable to find the accused. They called a taxi and returned to the complainant’s home, where they had to knock for a long time before the accused let them in.

The complainant did not have her keys or any money with her when the accused left her at the party. [ 5 ] An argument ensued. Shortly thereafter, Miguez heard the complainant screaming and heard loud thumping sounds and ran inside. She found the complainant lying at the bottom of the stairs, her face swollen and red with blood, her cheek piercing torn and with a missing tooth. Miguez phoned 911. [ 6 ] In order to find the complainant’s keys, the two women went upstairs to the bedroom where Miguez testified that she saw a broken nightstand and blood on the floor and on the stairs.

They took a taxi and went to the hospital. [ 7 ] Two police officers responded to the 911 call and encountered the accused upon arrival at the residence. As the

police officers approached the house, the accused exited with his hands up and said “I did it, I hit my girlfriend. She hit me then I hither”. The officer, Danielle Prefontaine (Constable Prefontaine), testified that they could tell the accused was intoxicated. [8] Constable Prefontaine then called the complainant’s cell phone and learned she was on her way to the hospital. Apolice officer, Aaron Staples (Constable Staples), took a statement from the complainant at the hospital and a doctor treated her.

He didnot note any signs of intoxication and there was nothing in the medical chart about the complainant being intoxicated or having aconcussion which the doctor testified would have been noted if it were observed. Miguez testified that the complainant appeared upset,sad and confused, but not angry. [9] During the next six months, the period of time between the charge and the complainant taking her life, she was incontact with Victim Services. Before trial, the accused made a motion for access to those records. The judge granted the motion in part.

She first redacted those portions she held not to be relevant to the matter at hand. [10] At the trial, the judge held that both the statement taken by Constable Staples at the hospital and the comment made bythe complainant when on her cell phone with Constable Prefontaine were ultimately reliable. She held that while the complainant mayhave struck the accused first, the accused used excessive force in defending himself. She found him guilty of assault causing bodilyharm. [11] Numerous pre-trial motions were heard and disposed of by the judge, whose decisions form many of the grounds ofappeal.

Specifically, the accused alleges error on the part of the judge as follows: 1. The judge failed to stay the proceedings on the basis of delay; 2. The judge failed to stay the proceedings on the basis of the Crown’s abuse of process, specifically alleging that the Crown’sactions caused the complainant’s death and accusing the Crown of extortion; 3. The judge erred in admitting the statements of the complainant; 4. The judge erred in her treatment of the disclosure motion and did not provide sufficient reasons to support the conclusion shereached; and 5.

The judge’s decision in not accepting the defence of self-defence was unreasonable. Motion for a Stay Based on Delay [12] The accused brought a motion for a judicial stay of proceedings pursuant to sections 7, 11(

b) and 24(1) of the CanadianCharter of Rights and Freedoms (the Charter) maintaining that his right to be tried within a reasonable time had been violated. [13] He submits that he has suffered prejudice because there is a direct causal connection between the delay in the trial andthe death of the complainant. As a result of the death of the complainant, she is not available to be cross-examined which affects his trialfairness rights. As well, he has been under charge for more than 30 months and has had to deal with the death of his partner. [14] In the cases of R v Jordan, 2016 SCC 27 and R v Cody, 2017 SCC 31, the Supreme Court of Canada has set out a newframework for

section 11(

b) delay motions. The Court concluded that a “change of direction” (Jordan at para 5) from the Morinframework was required to ensure timely justice in the criminal law context. [15] Previously, the decision in R v Morin, (SCC), [1992] 1 SCR 771 had been relied upon for thegoverning analytical framework.

The Morin framework required the courts to balance four factors: 1) the length of the delay; 2) defencewaiver; 3) the reasons for the delay; and 4) prejudice to the accused person’s interests in liberty, security of the person, and a fair trial(see Jordan at para 30). [16] The change of direction mandated by the Jordan and Cody cases sets out that a presumption of unreasonableness will beaccorded to any delay in excess of 18 months in the provincial court and 30 months in the superior court.

Any delay waived by orattributed to the defence must be deducted from the total delay and any such waiver, whether implicit or explicit, must be clear andunequivocal. In those circumstances where the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumptionof unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that 1) theyare reasonably unforeseeable or reasonably unavoidable; and 2) they cannot reasonably be remedied.

If the exceptional circumstancerelates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from thecase’s complexity, the delay is reasonable. See R v Coulter, 2016 ONCA 704 for a helpful

summary of the Jordan framework. [17] However, the Supreme Court in Jordan also recognized that the new framework must be adapted to cases currently inthe system and, accordingly, crafted transitional exceptional circumstances which must be utilized in such cases. For cases currently inthe system, a contextual and flexible application of the new framework is required (see para 94).

So, for transitional cases, where thepresumptive ceiling is exceeded, the Crown must satisfy the court that the time was justified based on the parties’ reasonable reliance onthe previous law. [18] Therefore, for transitional cases where the delay, after subtracting any periods of time attributable to defence delay anddiscrete events, exceeds the presumptive ceiling, the delay will be unreasonable, unless the Crown shows that the parties reasonablyrelied on the prior law and what opportunity the system had to adapt to the new law.

The application of transitional exceptionalcircumstances is highly contextual and discretionary. It involves a consideration of the balancing performed under the former regime,including whether seriousness of the offence is overcome by prejudice (see Cody at paras 73-74; Jordan at para 96; and R v Schenkels,2017 MBCA 62). [19] This was a transitional case under Jordan. The charges were laid on April 5, 2014 and the trial was scheduled to

conclude on October 28, 2016. The judge found the delay totalled “30 months and 23 days, or perhaps a few days less.” The “few daysless” related to the fact that the trial was projected to end early. In fact, the trial did end three days early, with final submissions beinggiven on October 25, 2016. So, the total delay in issue was 30 months and 20 days. The parties agreed that the total delay in this caseencompasses a period of 30 months and 23 days. This amount of time is marginally over the presumptively unreasonable ceiling of 30months.

The issue of a delay motion was not raised until September 8, 2016 and was perfected by the filing of a brief on October 18,2016. [20] This Court recently dealt with a transitional case in Schenkels, a case that was in the “system” before Jordan wasreleased. In that case, the time from charge to trial was 30 months and 19 days. [21] Both 19 days, as in Schenkels, and 20 days, as in this case, are amounts of time which could be considered so little overthe presumptive ceiling as to be “de minimis”.

However, even if one does the analysis mandated by the Supreme Court, as did the judge,an error justifying appellate intervention is not present. [22] The chronology of this matter is well set out in the reasons of the judge. She held that there were no specific defencedelay factors to be noted and consequently, the delay was presumptively unreasonable.

However, given that it was a transitional case, acontextual and flexible analysis must be considered in accord with a Morin analysis in arriving at a decision. [23] Some of the factors that the judge considered included the fact that the matter was initially set as a judge and jury caseand then a re-election was made to a judge-alone trial, the fact that three pre-trial motions were heard and determined and this had to befactored into the ultimate setting of the trial dates and that this was a serious charge and one within the context of a domestic violencesituation.

The unfortunate demise of the complainant served to complicate this matter. As a result of her death, certain complicationsarose, including the voir dire and motions that were required and those were factors considered in the setting of the trial dates. Inparticular, the judge held that, while the Crown was responsible for some delay in the setting of the pre-trial at the preliminary inquirystage, much of the remainder of the delay was institutional and, ultimately, in this case, reasonable in the setting of trial dates.

Moreover, she held that the Crown had substantially endeavoured to keep this matter moving towards trial as was anticipated under theframework as it existed at the time. [24] In the end, she held that what had transpired in this case constituted exceptional circumstances and the time the casetook was justified based on the parties’ reasonable reliance on the law, as it previously existed. As a result, she dismissed the motion fordelay.

The judge properly considered and weighed prejudice, the seriousness of the offence, the contextual factors and the parties’relative levels of diligence. [25] In particular, she held that the complainant’s death was not causally connected to delay and thus, no legally relevantprejudice for

section 11(

b) purposes flowed from that event. The judge’s findings of fact are entitled to deference where they arerelevant to the analysis now required by Jordan (see R v Vandermeulen (M), 2015 MBCA 84 at para 24; and Schenkels at para 6). Thisis consistent with the former law that absent an underlying material error, a decision balancing the

section 11(

b) factors is entitled todeference. See Vandermeulen at para 29. [26] For these reasons, I conclude that the accused has not demonstrated unreasonable delay from the date of his charge tothe end of the trial and the judge did not err when she dismissed the accused’s application for a stay of proceedings for breach of hissection 11(

b) right. Abuse of Process Motion [27] The accused argues that the judge erred in dismissing his motion for a judicial stay of these criminal proceedingspursuant to sections 7, 11(

d) and 24(1) of the Charter. The grounds for the stay motion relate to an allegation of misconduct on the partof the Crown, which is said to have resulted in a denial of the accused’s right to a fair trial (see R v Johnston, 2016 MBQB 166 (Johnston#1)). [28] In particular, the accused alleges two inappropriate actions. First, he argues that the conduct of Crown counsel (notcounsel on the appeal) in suggesting that the charge might be upgraded to aggravated assault constituted extortion. The Crown’sapproach, it is submitted, was an abuse of process and was conduct that would shock the conscience of the community.

Crown counseladvised that based on the injuries suffered by the complainant, a charge of aggravated assault may be warranted. However, for thepurpose of plea bargaining, she indicated that she would accept a guilty plea to the charge as laid, that of assault causing bodily harm. [29] Second, the accused submits that the former Crown counsel’s lack of agreement to relax or remove the accused’sjudicial interim release conditions was a key element in the complainant’s demise and rendered the accused’s trial unfair.

Further,Crown counsel advised that a possible obstruction of justice charge could be laid against the accused because of his breach of the courtordered no-contact condition.

The obstruction was also considered to be related to the assertion that advice was given by the accused tothe complainant as to what she should communicate to Victim Services with respect to the dropping of the charge. [30] In R v O’Connor, (SCC), [1995] 4 SCR 411, L’Heureux-Dubé J identified two primary categories ofabuse of process: 1) where a prosecution is conducted in a manner that contravenes the community’s basic sense of fair play andcompromises the fairness of the accused’s trial; and 2) where state conduct creates no threat to trial fairness but so contravenesfundamental notions of justice as to risk undermining the integrity of the judicial process. [31] Even if the individual’s right to a fair trial is not implicated, but the prosecution is conducted in such an unfair andvexatious manner that it contravenes fundamental notions of justice in

section 7 of the Charter and undermines the integrity of thejudicial process, that may justify the remedy of a stay under the residual category (see R v Regan, 2002 SCC 12). [32] The judge agreed, as did both parties, that the leading case relating to an abuse of process asserted as a result ofthreatened charges was R v Babos, 2014 SCC 16. Mr. Babos and another accused had been charged with 22 offences involving firearms,drugs and organised crime. Before disclosure was complete, the prosecutor threatened to lay additional charges if the accused did not

enter into a plea arrangement. The majority decision of the Supreme Court agreed that, in the circumstances of that case, the prosecutor’s actions had constituted reprehensible prosecutorial misconduct, but not sufficient to order a stay of proceedings (see also R v Roulette (KT) , 2015 MBCA 9 ).

A stay of proceedings is only one potential remedy for an abuse of process and should be reserved for “the clearest of cases” (at para 36). [ 33 ] However, for our purposes, what is important is that in Babos , the Supreme Court confirmed that legitimate plea bargaining includes dropping a charge that is grounded on the evidence if there is a guilty plea, or adding charges to an indictment if the evidence supports them.

Justice Moldaver states (at para 59): “It is perfectly proper for the Crown to indicate that it will drop certain charges, grounded in the evidence, if the accused pleads guilty.” [ 34 ] That is what happened here. The key words in the above quote are “grounded in the evidence”. Crown counsel was of the view that there was evidence to support a charge of aggravated assault, but was prepared to accept a plea to the lesser charge originally laid. As long as there is a legitimate basis for the more serious charge, this is neither inappropriate nor extortion.

On the contrary, as the Supreme Court recently confirmed, such plea negotiations are “vital to the efficient operation of the criminal justice system” ( R v Anthony-Cook , 2016 SCC 43 at para 2 ). [ 35 ] The fact that the accused’s counsel can no longer cross-examine the complainant at trial is a trial fairness issue. However, it does not necessarily equate with a finding of trial unfairness. As has been said many times before, the accused is entitled to a fair trial not a perfect trial.

The fact that the accused’s counsel will not be afforded the ability to undertake a cross-examination of the complainant was considered by the judge in the determination of whether the complainant’s out-of-court statement should be admitted pursuant to the principled approach to the admissibility of hearsay evidence. [ 36 ] The accused also alleged extortion based on the Crown’s response to his ongoing contact with the complainant in violation of his terms of release.

Crown counsel had asked the accused’s counsel to intervene as his client had told the complainant repeatedly to “go to Victim Services and get the charges dropped”. She warned that if the accused’s behaviour continued, he could be charged with an attempt to obstruct justice. [ 37 ] Prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.

Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion, but rather are governed by the inherent jurisdiction of the court to control its own processes.

Prosecutorial discretion is entitled to considerable deference, but is reviewable for possible abuse of process (see Krieger v Law Society of Alberta , 2002 SCC 65 ; and R v Anderson , 2014 SCC 41 ). [ 38 ] Cases involving domestic violence are notoriously volatile and difficult, especially where vulnerable individuals such as this complainant are involved.

Exercising discretion is a significant aspect of the Crown’s role as it seeks to balance the competing interests at play in these challenging situations. [ 39 ] To insist, as the accused does, that the complainant’s suicide was a result of the Crown’s actions, specifically its decision not to consent to contact between her and the accused is highly speculative. It is not unusual for victims of domestic violence to seek continued contact with their abusers; this is a well-recognized aspect of the cycle of violence that makes domestic abuse so chronic and difficult.

It would be surprising if a Crown attorney in the domestic violence unit was not very familiar with this phenomenon.

Prosecutors in these cases must make difficult discretionary decisions and, as the judge observed, the Crown was entitled, in the circumstances, to withhold its consent to the variance request. [ 40 ] Justice Schulman, in his report in the Lavoie Inquiry (Co mmission of Inquiry into the Deaths of Rhonda Lavoie and Roy Lavoie, A Study of Domestic Violence and the Justice System in Manitoba (Manitoba: Department of Justice, 1997)), which examined domestic violence and the justice system in Manitoba, commented on this aspect of “the cycle of violence” as has our Court recently in R v CAM , 2017 MBCA 70 .

Justice Schulman stated (at p 43): Victims frequently return to an abusive relationship or ask that criminal charges against an offender be dropped. They often fail to enforce a no-contact no-communication condition [or] a recognizance or probation order or refuse to tell anyone, including police officers, about the abuse. While this behaviour is typical of victims of domestic violence, it may lead an uninformed person to conclude that the abuse did not really occur or was not very significant.

See also CAM at para 49 . [ 41 ] In any case, I agree with the judge that the Crown’s lack of agreement to a variance or the seeking of a review was arguably of a limited consequence in a consideration of what transpired. First, the discretion to alter any release conditions rests with the court, albeit Crown consent will constitute a significant factor in the court’s consideration of a possible variance. However, at no point did the accused ever apply for a variation of his bail to allow contact.

Second, as the judge observed, the accused admitted that even without the variation, he was in contact with the victim on “virtually a daily basis” ( Johnston #1 at para 25 ). [ 42 ] There was no prohibition communicated with respect to the complainant speaking with Victim Services from any source, including the Crown. A review of the records indicates that the Crown had only limited interaction with the complainant. [ 43 ] Consequently, I agree with the judge that no Crown misconduct occurred here. Not only is this not one of those clearest of cases that would justify a stay but, indeed, there was no misconduct.

The Crown did not engage in conduct that was offensive to societal notions of fair play and decency. Both the Crown and Victim Services had been made aware that the complainant was suicidal. Victim Services’ staff continually attempted to counsel and reach out to the complainant even when they were receiving no response. The complainant’s death was tragic and even if one could speculate that other decisions might have been made, that would

hardly constitute an abuse of process or misconduct. In my view, these allegations have no substance. [44] Since I do not accept that the complainant’s suicide was causally related to any Crown conduct, it would not benecessary to consider the accused’s fair trial interests. However, any disadvantage stemming from an inability to cross-examine thecomplainant would in any case be addressed in the course of the Crown’s application to adduce her previous statements pursuant to R vKhelawon, 2006 SCC 57.

Disclosure Motion [45] Generally speaking, there are three regimes that govern the production of documents in a criminal trial. Where thereare relevant documents in the possession and control of the Crown, the case of R v Stinchcombe, (SCC), [1991] 3 SCR326 governs their disclosure to the accused. In the case of sexual offences,

section 278.1 of the Criminal Code (the Code) governs thedisclosure of third party records. In the case of other criminal offences, where a third party possesses or controls documents relevant to acriminal trial, the cases of O’Connor and R v McNeil, 2009 SCC 3 provide courts with a guide as to disclosure. [46] In this case, the nature of the documents and the way in which they were accessed by the Crown raises substantialquestions as to whether they were in the possession and control of the Crown or whether, because they were therapeutic records, a thirdparty production regime was more appropriate.

As well, there were factual issues that further served to complicate matters. [47] In the end, as explained below, I find that the error committed by the judge did not materially affect the outcome of thetrial. Also, it is my understanding that the Crown no longer has access to Victim Services’ records in the manner that occurred in thiscase. However, I think it is still necessary to identify and analyse the error. [48] In the months after the assault, there was considerable contact between the complainant and Victim Services. Therewas also direct contact between the Crown, the complainant and Victim Services.

This contact included a joint meeting of all three onSeptember 5, 2014, as well as at least one telephone call between the Crown counsel and Victim Services. [49] As a result of the complainant’s suicide and the resulting motions that the accused wished to bring, on December 17,2015, the accused’s counsel emailed the Crown asking for disclosure of all records of communication “in the possession of the Crown”between Victim Services, the complainant and the Crown.

The Crown responded that it believed a third party record application was theappropriate process in this situation. [50] The accused’s counsel disagreed and instead, filed a motion seeking an order for disclosure of all records ofcommunication between the Crown and the complainant and records which disclosed all measures taken by Victim Services or by theCrown to prevent the complainant’s suicide. [51] The records in question are records from Victim Services which relate to the contact that the complainant had with thatentity.

The records include advice to the complainant, as well as counselling-type communications. They commenced on April 7, 2014,with the last entry transpiring on September 19, 2014. [52] At the hearing of the motion on February 26, 2016, the Crown reaffirmed its position that the motion should be treatedas an application for third party records and that the complainant’s privacy interests were involved, while the accused’s counselreaffirmed his own view that the motion should be viewed as a request for disclosure of records in the possession of the Crown.

It doesnot appear that anyone on behalf of the complainant (her mother was appointed the administrator of the estate) or Victim Services, as therecord holder, were served with notice of the motion. [53] Nonetheless, because a formal voir dire was scheduled to be heard on March 10, 2016, in which these records mighthave relevance, both counsel agreed that the first stage of a third party records production application had been satisfied and thedocuments were “likely relevant” so as to allow the Court to review them.

Even though a formal third party records productionapplication was never filed, all parties, including the Court, were concerned that the voir dire not be delayed. The Crown provided theCourt with redacted and unredacted copies of the records of Victim Services. After reviewing the documents, the Court ordered that aredacted copy be provided to the defence. [54] The judge applied the test set out in sections 278.2-278.9 of the Code when deciding whether to disclose the records.

She stated that, “this ruling will constitute the determination of the second stage of a third party records production application pursuantto sections 278.2 to 278.9 of the Criminal Code” (R v Johnston, 2016 MBQB 49 (Johnston #2) at para 2). [55] The offence of assault causing bodily harm is not one of the offences applicable to the regime in

section 278.1 of theCode so it is not clear why the Court referred to those sections and the factors listed under those sections. A transcript of theproceedings shows that a discussion occurred between the Court and the Crown as to the appropriate test to be applied. The Crownargued at the motion that the appropriate test was that arising from the O’Connor case. [56] On appeal, the Crown has agreed that this was an error on the part of the judge. However, it is still submitted that theseare third party records and that the judge did not err by using analogous criteria as outlined in O’Connor.

Moreover, even if the Courtapplied the incorrect test in redacting the records, the error was not material as the records which were redacted were not relevant. [57] The accused argues that these records were in the possession of the Crown and were relevant to his motion on abuse ofprocess. Therefore, under Stinchcombe, he was entitled to their full disclosure without an application for production. If the Crown feltthat any of the materials were not relevant, the onus was on the Crown to establish that.

He submits that the fact that the accusedreceived only redacted records was an error that breached his Charter rights and requires a stay of proceedings. [58] At the hearing of the appeal, this Court requested that the Crown advise whether it had possession of an unredactedversion of the records at issue in this proceeding. As stated above, the Crown counsel on the appeal was not the Crown counsel whohandled the matter at trial and therefore, she was unable to advise the Court whether the Crown was ever in actual physical possession of

the complainant’s records from Victim Services. The Crown clarified this by providing the Court with the following information inwriting after the appeal: At one time, Prosecution Services had access to Victim Services’ electronic files and thus, was arguably “in possession” of its records. This is no longer the case. Often, the Crown is not advised of contact as between Victim Services and a complainant in a domestic violence matter as VictimServices’ primary purpose in counselling and communicating with the complainant is to offer support, information and, safety planningas appropriate.

Currently, in keeping with its obligations pursuant to federal and provincial victims’ rights legislation, Victim Serviceswill contact a Crown attorney to share a complainant’s views as to proceeding with a prosecution, potential outcomes, and concerns (orthe absence of concerns) relating to safety and contact with an accused. In those situations in which a complainant has provided information to a Victim Services worker which is relevant to the prosecution (forexample, if the complainant is recanting or shares additional details relating to an alleged offence), the Crown is informed so that followup can occur.

At the relevant time, [the Crown] still had electronic access to Victim Services records. Upon learning of the [accused’s] intention toseek admission of the records, she obtained and reviewed them for the purpose of fulfilling her role in determining their relevance. [59] I interpret this letter to mean that at the relevant time, the Crown had electronic access to the records of VictimServices. I have no evidence that the complainant in this case waived her right to privacy in these records.

I also take from the letter thatthe Crown in this case did in fact access the unredacted Victim Services file of the complainant. [60] Therefore, the crucial question for our purposes is whether at the relevant time these records were in the possessionand/or control of the Crown? The Crown had access to the unredacted records by way of electronic access. Is electronic access thesame as possession and control? [61] In the seminal decision of Stinchcombe, the Supreme Court addressed the subject of common-law disclosure ofinformation in the possession of the Crown.

Stinchcombe determined that the Crown had an ethical and constitutional obligation to thedefence to disclose all information in its “possession”, what Sopinka J called the “fruits of the investigation”, unless the information inquestion is clearly irrelevant or protected by a recognized form of privilege (at p 326). [62] While the decision in Stinchcombe only mentions information in the possession of the Crown, subsequent case law isreplete with reference to the additional factor of “control”.

For example, in the second Stinchcombe decision, R v Stinchcombe, (SCC), [1995] 1 SCR 754, Sopinka J observed that, “The Crown can only produce what is in its possession or control” (atpara 2). Most recently, in World Bank Group v Wallace, 2016 SCC 15, the Supreme Court noted (at para 114): “Under that[Stinchcombe] framework, the Crown must disclose all documents in its ‘possession or control’ which are relevant to an accused’s case”. [63] It is doubtful whether it could be said that access to the electronic records of Victim Services meant that the Crown hadcontrol of those records.

The records were the private therapeutic records of the complainant and the record holder was Victim Serviceswhich is an entity separate from the Crown. There is no record that the complainant had ever waived her privacy rights to those records. [64] On the other hand, the Crown did have access to information that the defence did not have, nor could it have had, sincethe complainant was deceased. It had electronic access to the Victim Services’ records and “obtained and reviewed” them for thepurposes of the case.

Typically, pursuant to a traditional Stinchcombe methodology, there would be a responsibility on the Crown todisclose such records. [65] Assuming, without deciding, that we should proceed on the basis that these were records in the possession of theCrown, a third party application for production may still have been necessary because of the nature of the records. As explained inO’Connor and R v Mills, (SCC), [1999] 3 SCR 668, distinctive rules may apply when the Crown possesses records inwhich the complainant or a witness holds a reasonable expectation of privacy and no waiver has occurred.

As stated in Mills, “Privacy isnot an all or nothing right. It does not follow from the fact that the Crown has possession of the records that any reasonable expectationof privacy disappears” (at para 108). [66] In O’Connor, the Supreme Court proceeded on two bases which are not present in this case. First, they expressed theview that the relevance of therapeutic records must be presumed when records are in the possession of the Crown.

Further, “generallyspeaking, the Crown would not obtain possession or control of therapeutic records unless the information the records contained wassomehow relevant to the case against the accused” (at para 12). Information is relevant where there is a reasonable possibility that theinformation is logically probative to an issue at trial. That presumption of relevance by possession is not necessarily present in this case,as according to the Crown’s letter, they obtained and reviewed the records for the purpose of determining their relevance.

Put anotherway, the presumption expressed in O’Connor is not necessarily present when the Crown has such a wide-ranging ability to obtainpossession of third party records, regardless of whether those records are actually relevant in the case. [67] Second, in the O’Connor case, there was a waiver of the expectation of privacy that the complainant had in the

therapeutic records. The waiver, and its effect in the O’Connor case, is made clear as follows (at para 9): The complainant’s lack of a privacy interest in records that are possessed by the Crown counsels against a finding of privilege in such records. As stated above, it is somewhat inconsistent to claim that therapeutic records are sufficiently confidential to warrant a claim of privilege even after this confidentiality has been waived for the purpose of proceeding against the accused.

Obviously, fairness must require that if the complainant is willing to release this information in order to further the criminal prosecution, then the accused should be entitled to use the information in the preparation of his or her defence. [ 68 ] It is important to note that not only was there no waiver by the complainant before her death, or by her administrator after her death, but there was no waiver by the record holder.

While a court might order disclosure if the information was deemed to be relevant and unduly limited the accused’s right to make full answer and defence, even in the absence of a waiver, that is different from requiring the Crown to disclose the information without the intermediary of a court determining its relevance.

Under Stinchcombe , possession in the hands of the Crown raises a rebuttable presumption of relevance. [ 69 ] In his article, David M Paciocco, “Filling the Seam between Stinchcombe and O’Connor: The ‘McNeil’ Disclosure Application” (2007) 53 Crim LQ 161 stressed that waiver is a key consideration in determining the appropriate regime (at p 7): It is well settled, for example, that, absent waiver, where there is a reasonable expectation of privacy in information, even in the possession and therefore control of the Crown, O’Connor or Mills standards should be used instead of the Stinchcombe standards. [ 70 ] See also David M Paciocco, “A Primer on the Law of Third Party Records” (2005) 9 Can Crim L Rev 157 (Primer article) where, when commenting on records in the possession of the Crown for which there is a reasonable expectation of privacy, he states (at p 169): Absent waiver, where the Crown possesses records in which the complainant or a witness holds a reasonable expectation of privacy, either the Mills or O’Connor production regime will apply, depending on the offences being prosecuted.

This would include personal records that have been obtained by search warrant, or records secured directly from record holders, as well as records provided directly to the police or Crown by complainants and witnesses who are unfamiliar with the protection the law provides for their privacy interests. [ 71 ] In addition to the absence of a waiver, further support for the application of the O’Connor principles may be found in a consideration of the concept of the “fruits of the investigation”. The phrase was the subject of discussion in McNeil .

McNeil held that the Crown has a duty to make reasonable inquiries and obtain relevant information as part of its Stinchcombe obligations. However, records in the hands of police that do not form part of the Stinchcombe obligation should be treated as third party records subject to O’Connor . [ 72 ] In his 2009 article, David M Paciocco, “ Stinchcombe on Steroids: The Surprising Legacy of McNeil ” (2009) 62 CR- ART 26, states (at p 1): Prior to the McNeil litigation there was an unfilled seam between “first party” or Stinchcombe disclosure, and “third party” disclosure under the O’Connor and Mills regimes.

Stinchcombe applied solely to the “fruits of the investigation,” information within the possession or control of the prosecuting Crown.

Meanwhile, the O’Connor and Mills regimes balanced relevance against reasonable expectations of privacy. [ 73 ] Again, in his Primer article, Paciocco makes the point that (at pp 169-70): The net effect of the broad protection afforded to third party records, coupled with the waiver standards employed, is that third party records may be in the hands of the police or Crown to assist in preparing the prosecution without any right arising in the defence to review those records to prepare the defence.

The accused will have to bring a production application to secure those documents. [ 74 ] Consequently, I agree with the Crown that the O’Connor regime would apply to these documents. However, I do not agree that the criteria in the provisions of the Code and those identified in O’Connor and McNeil are the same. There are differences.

In McNeil , for example, Charron J began by noting that, “the common law likely relevance threshold in O’Connor differs significantly from the statutory likely relevance threshold set by Parliament for the production of records . . . in sexual assault proceedings” (at para 30) and “[b]ecause of these significant differences, it is important not to transpose the Mills regime into the O’Connor production hearing in respect of documents to which the statutory dispositions do not apply” (at para 32).

[ 75 ] Yet, the most important differences relate to the first stage and the notion of “likely relevance”. The parties here agreed that the documents were “likely relevant”. Therefore, the impact of the judge’s error in citing the statutory provisions is diminished by the fact that the parties agreed on the first stage of the test. [ 76 ] With respect to the second stage of the test, although the judge did refer to the provisions of the Code , many of the factors she referred to are also identified in O’Connor .

O’Connor indicated that at the second stage, the judge must balance the competing interests in order to determine whether a non-production order would be a reasonable limit on the accused’s ability to make full answer and defence.

While no exhaustive list could be drafted and they are not to be applied mechanically, judges should consider a number of factors in making this determination including: 1. the extent to which the record is necessary for the accused to make full answer and defence; 2. the probative value of the record in question; 3. the nature and extent of the reasonable expectation of privacy vested in that record; 4. whether production of the record would be premised upon any discriminatory belief or bias; and 5. the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question.

See McNeil at paras 27, 35 . [ 77 ] The judge referred to similar factors as those listed above ( Johnston #2 at para 9 ): I have undertaken a consideration of the applicable factors as are outlined in the third party records production provisions of the Criminal Code , particularly, the extent to which the record is necessary for the accused to make a full answer and defence; the probative value of the record; the nature and extent of the reasonable expectation of privacy with respect to the record; the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; and the effect of the determination on the integrity of the trial process.

I am satisfied in the circumstances, after a review of the documents, that those produced with my redactions are likely relevant and probative to issues to be determined at this trial.

It is in the interests of justice to order the production of the redacted Victim Services records to the accused because of relevancy of the records and, importantly, because of the necessity of the records for the accused to make a full answer and defence. [ 78 ] The portions of the records that were redacted referred to conversations between the complainant and the Victim Services worker related to the complainant’s physical injuries and her healing from those injuries, her application for compensation and the complainant’s emotional and psychological responses to her present circumstances.

The worker shared with the complainant information regarding typical responses to domestic violence, but for the most part, focussed on the complainant’s present situation. There is nothing in the redacted portion of the records that is relevant to issues at trial, but there is much in the records that is highly personal and intrusive of the complainant’s privacy. [ 79 ] However, there is one short redacted extract that may be argued to have some relevance.

In that extract, which is from the records of the Victim Services worker, the complainant discusses details of the offence: [The complainant] states that prior to her arriving home that night the two had not been arguing and the night had been going great. When she returned home “he lost it on me.

I thought that he was going to kill me.” [The complainant] states that she thinks that the accused may have been on drugs and was definitely intoxicated by alcohol. [The complainant] thinks it may have been cocaine that the accused was on however she did not witness him using it. [ 80 ] In her only statement to the police, the complainant does not mention that the accused was intoxicated or that he may have been using cocaine. [ 81 ] During the course of presenting their case, the accused’s level of intoxication was canvassed by the Crown. Miguez was asked about the level of sobriety of the accused.

She testified that, “He just seemed very blank, like emotionless”. Later, at the trial, and in her direct examination, Miguez states that, “He seemed kind of just out of it and like, nobody’s home”. One of the arresting officers, Constable Prefontaine, also testified in her direct that, “We could tell he was intoxicated”. [ 82 ] In principle, if the Crown is in possession of this information and is going to pursue this line of questioning, then the accused should have had the benefit of what the complainant appears to have said.

It may have had the potential to be relevant, even though his intoxication was never alleged to have rendered him incapacitated. [ 83 ] In my opinion, those statements about the accused’s intoxication did not affect the essential issue of whether his assault was excessive and disproportionate in the situation. Nor did it affect the accused’s argument for a stay on the grounds of Crown misconduct. [ 84 ] In R v Taillefer; R v Duguay , 2003 SCC 70 , LeBel J, for the Court, wrote (at para 71):

There are situations in which the information not disclosed will meet the minimum test set out in Stinchcombe while having onlymarginal value to the issues at trial (Dixon, supra [R v Dixon, (SCC), [1998] 1 SCR 244], at paras. 23-30). Todetermine whether there is an infringement of the right to make full answer and defence, the accused will have to show that there was areasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial process. [85] I conclude that the redacted portion, while relevant in principle, could not have affected the outcome in the case.

Theerror of relying on the wrong test in this case, although referring to most of the same factors in deciding what portions of the record toredact, did not affect the accused’s right to make full answer and defence, the outcome of the trial or the overall fairness of the trialprocess. [86] In this case, there is other strong evidence against the accused which has already been detailed in these reasons. Thatbeing the case, the error of the judge did not amount to a substantial wrong or miscarriage of justice and the proviso can therefore beapplied.

See, for example, Hayes v R, 2002 NBCA 80 which is a case which applied the proviso in the context of undisclosedinformation. Hearsay Statements of the Complainant [87] As a result of the death of the complainant, the Crown made a pre-trial motion to admit the following two statements: 1. The written statement of the complainant taken by Constable Staples at the Victoria General Hospital at 5:05 a.m., likelywithin three hours after the assault occurred. The Crown sought to tender this statement of the complainant pursuant to the principledapproach to hearsay, as outlined in Khelawon; and 2.

The comment made to Constable Prefontaine by the complainant over a cell-phone conversation at approximately 3:08 a.m.,likely within one hour after the assault occurred. The Crown sought to admit this comment under the res gestae exception to theadmission of out-of-court statements. [88] A pre-trial voir dire was held in which the evidence of Winnipeg Police Service witnesses, the physician who treatedthe complainant at the hospital, Dr. Jeffrey Horvath (Dr.

Horvath), and the complainant’s friend, Miguez, was given and subsequentlyapplied to the trial proper. [89] Constable Staples testified that he took the statement from the complainant at the hospital by way of a statement inwhich a witness provides information and the police officer records it to the best of his ability. There were also five questions andresponses, which were recorded on a verbatim basis. Prior to signing, Constable Staples testified that the complainant reviewed herstatement, and in fact, made a correction clarifying certain details.

The complainant’s signature confirmed that she read the statementand that it was correct. The statement was not videotaped or taken under oath. [90] Citing Khelawon, the judge considered whether sufficient indicia of reliability existed to meet the threshold test foradmission.

Recognizing the significant disadvantage inherent in not having the opportunity to cross-examine the complainant, shereviewed whether other factors including animus (as alleged by the accused) existed or whether, in the alternative and to a sufficientextent, corroborative evidence allowed for confidence in its reliability so as to afford a satisfactory basis for evaluating its truth. [91] Previously, hearsay evidence (information offered for the truth of its contents, but not given by a witness on the standinside a courtroom) was presumptively inadmissible unless it fell within certain narrowly defined exceptions.

In the last few decades,courts have abandoned this strict approach. Instead, courts developed a more logical, functional approach looking for indicia ofreliability external to the statement itself as well as within the statement. The principled exception to the hearsay rule will allow theadmission of hearsay evidence if the offering party can demonstrate that the evidence is sufficiently necessary and reliable to meet thethreshold test.

Here, because the complainant was deceased, necessity was admitted so only reliability was at issue. [92] With respect to reliability, if a statement is made where there are sufficient circumstantial guarantees of trustworthinessthat substantially negate the possibility that the declarant was being untruthful or mistaken, that hearsay evidence will generally bedetermined to be reliable on a threshold basis and will then be admissible for consideration in the trial.

This is subject to the judge’sdiscretion to exclude the evidence if its prejudicial effect outweighs its probative value. [93] This more flexible approach is summarized in the Khelawon case relied on by the judge. She held that sufficientcircumstantial guarantees of trustworthiness were present and threshold reliability was established on a balance of probabilities.

Despitethe fact that the statement was unsworn and not recorded, she was satisfied that other evidence existed that served to corroborate thestatement. [94] In coming to this conclusion, the judge indicated that the police statement was substantially corroborated by thephysical evidence, the photographs, by the witness testimonies of Miguez, police officers and Dr.

Horvath, and by the comments andbehaviour of the accused. [95] The judge also considered, among other things, physical evidence in the residence including clumps of hair, blood fromthe top of the stairs to the bottom and upstairs in the bedroom, the broken nightstand, the complainant’s injuries and demeanour, and theaccused’s behaviour and admission. [96] If a judge’s decision on the admissibility of hearsay evidence is informed by the correct legal principles, it is entitled todeference on appeal absent demonstration of palpable and overriding error.

See R v Woodard, 2009 MBCA 42 at para 45; and mostrecently, G (JD) v G (SL), 2017 MBCA 117 at para 47.

[ 97 ] However, the accused argues that the judge did not have the advantage of the recent Supreme Court decision in R v Bradshaw , 2017 SCC 35 which, it is submitted, changes the law and would have changed the result in this case. [ 98 ] Bradshaw reaffirmed many of the basic principles of law surrounding hearsay as set out in Khelawon . It is, however, narrower in focus than Khelawon .

Bradshaw is focussed on the role of corroborative evidence in evaluating threshold reliability. [ 99 ] The Supreme Court explained that a party seeking to rely on hearsay evidence can prove threshold reliability either by establishing that “(1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)” ( Bradshaw at para 27 ).

Procedural reliability relates to adequate substitutes for testing the evidence where cross-examination in court is not possible. So, for example, video recording of the statement, the presence of an oath or a warning about the consequences of lying might substitute for lack of ability to cross-examine the declarant. [ 100 ] This was a case about substantive reliability. The statement could not meet the requirement of procedural reliability (see Bradshaw at para 28 ).

The statement was not taken under oath or videotaped and the complainant was not warned of the consequences of not telling the truth. [ 101 ] Substantive reliability relates to proof of a high standard that the statement is inherently trustworthy. The corroborative evidence must go to the trustworthiness or accuracy of the material aspects of the hearsay statement and cannot simply relate to the likelihood of the accused’s guilt.

The material aspects are those relied on by the moving party for the truth of their contents. [ 102 ] It would seem that Bradshaw places some restrictions on the open-ended approach to corroborative evidence advocated in Khelawon .

Not only must the corroborative evidence corroborate the statement itself and not merely the party’s case, but the corroborative evidence, when considered as a whole and in the circumstances of the case, must establish on a balance of probabilities 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. See Bradshaw at para 40 . [ 103 ] The approach a judge is to take on the substantive reliability inquiry was summarized this way in Bradshaw (at para 57 ): 1.

Identify 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. 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. [ 104 ] In Bradshaw , the corroborative evidence relied on by the judge, i.e., the accurate description of the murders and the weather on the night in question, did not actually implicate Bradshaw in the murders.

Those corroborative details were equally consistent with the possibility that the declarant was lying about Bradshaw’s participation. [ 105 ] Again, in the case of R v W(N) , 2017 NSPC 33 , the Court declined to admit a videotaped statement for the truth of its contents.

Judge Derrick (as she then was) held that the evidence could have been corroborative of the truthfulness of the witness’s statement, but it could also have been equally consistent with other hypotheses including the desire of the witness to go home, something which he had indicated multiple times throughout the interrogation (see para 31). [ 106 ] This was not true in this case. In the statement, the complainant indicated that on the night of the incident, when she arrived at the residence without keys, the accused eventually opened the door to let her in.

At that time, they had a brief verbal confrontation in which the complainant told the accused that if he was going to disrespect her, he had to leave. The statement goes on to say: At that point he punched me in the face and my nose started bleeding. I collapsed to the ground and fell onto the right side of my face when he started stomping on the left side of my face at least 10 times. I was in shock and he grabbed me by my hair and dragged me out of the bedroom to the top of the stairs and I was yelling for him to stop and just leave me alone but he started choking me and then punched me repeatedly. . . .

I just want to clarify the first assault when he punched me [it] happened at the front main foyer by the stairwell, the second assault happened in the bedroom in the back left corner he starting stomping on the side of my face and the third assault took place at the top of the second floor stairwell where he choked me and punched me repeatedly. [ 107 ] Bradshaw states that only material aspects of the hearsay statement shall be considered. The statement describes the nature and extent of the assault by the accused on the complainant.

Therefore, the material aspects of the statement are that the accused committed the assault, and the nature of the assault. [ 108 ] Second, the specific hearsay dangers raised by the statement must be identified. A hearsay danger that is raised by the admission of the police statement is that, given the death of the complainant, it is impossible to test whether her statement on her recollection of the assault was misleading or false. She could have been angry at the accused.

She could have incurred her injuries in other ways, such as falling down the stairs as alleged by the accused. [ 109 ] All the corroborative evidence, the injuries, the blood and clumps of hair in the hallway, the broken furniture in the bedroom, the evidence of Miguez, the evidence of all the witnesses, all point, not only to the fact that the accused hit the complainant, but point to a serious assault with extensive injuries.

The alternative possibility put forward by the accused, that of the complainant falling down the stairs, does not accord at all with the evidence listed above. [ 110 ] Regarding the question of a second alternative explanation, i.e., animus , the accused submits that that the complainant was angry when making her statement and therefore, had reason not to accurately represent the events of the assault. For example, the complainant failed to mention in her statement that she struck the accused first. [ 111 ] First, there was no dispute that the accused admitted to hitting the complainant.

He made those comments immediately to the police officers on their arrival at the residence. He stated: “I did it, I hit my girlfriend. She hit me then I hit her”. Later on, after he was arrested, he was asked if he would like to speak to a lawyer. He replied, “No I know I hit her. It is what it is”. These comments substantially align with the material aspect of the written statement that the accused committed the assault. [ 112 ] With respect to animus , the judge stated that while the circumstances of being left at the nightclub could engender animus , there was no substantive evidence to support it.

Both Miguez and Constable Staples testified that the complainant seemed shocked and confused rather than angry. In any case, the Court concluded that the other corroborative evidence relied on ruled out the speculative or alternative explanations of the complainant being untruthful or injuring herself falling down the stairs. Instead, the judge held that the evidence corroborated the assault as being the only remaining likely explanation for the statement.

She stated in R v Johnston , 2016 MBQB 167 ( Johnston #3 ) (at paras 40-41 ): There was no substantive evidence that indicated [the complainant] was demonstrating animus with respect to the accused. However, the circumstances of being left at the nightclub could, speculatively, engender such a state. The fact that [the complainant] appeared to want to continue arguing with the accused could be demonstrative of an angry state. Conversely, Miguez said that [the complainant] was simply in a confused state because of what had transpired. Miguez testified that at the hospital [the complainant] appeared to be “broken”.

Further, [Constable] Staples stated he had no reason to believe that what [the complainant] was relating to him at the hospital was not the truth. I am satisfied that threshold reliability has been met as the police statement is substantially corroborated by the physical evidence, by the Miguez testimony, and by the comments and behaviour of the accused. The police evidence was also of assistance in establishing threshold reliability, as well as the fact that the police statement was made within three hours of the alleged incident.

I acknowledge the possible existence of animus, albeit Miguez did not note any such behaviour — only confusion. Even if animus existed, I am not convinced that it would override the other indicia of threshold reliability. [ 113 ] The judge also considered corroborating physical evidence of the injuries sustained by the parties, as well as the testimony of Dr. Horvath, Constable Staples and Miguez in that regard. When Constable Prefontaine initially responded to the residence, she noted that blood was in the hallway and on the walls, and there were also clumps of hair.

Further, there were findings of blood on the stairs, main floor, upstairs bedroom and a broken nightstand. This substantially corroborates the complainant’s statement with respect to her indicating that the accused grabbed her by the hair and dragged her, as well as to the location and extent of each assault within the residence. [ 114 ] Finally, Miguez was with the complainant during the time leading up to the assault and was a witness that provided evidence at the voir dire .

In addition to testifying to the injuries of the complainant and the physical state of the residence on the night of the incident, she testified to hearing the complainant yelling with fear in her voice from within the residence. [ 115 ] The judge held that this evidence was consistent with the complainant’s account of the assault on her by the accused. The photographs show extensive injuries sustained by the complainant.

All of this evidence aligns with the complainant’s description of the events, including the accused stomping on her face and repeatedly punching her. [ 116 ] Bradshaw requires that the corroborative evidence led at the voir dire rule out the speculative explanation such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the assault on the complainant by the accused. In this case, “The evidence taken as a whole corroborated the reliability of the complainant’s statement” ( R v Thyagarajah , 2017 ONCA 825 at para 11 ).

I believe that had the judge had the benefit of the decision in Bradshaw , her assessment

would be correct under its analysis as well. Telephone Call [117] The 911 call was received by dispatch at 2:48 a.m. The police officers arrived at the residence at 3:01 a.m. and thecomplainant was not there. After observing blood in the hallway and clumps of hair in the stairwell, Constable Prefontaine attempted tolocate the complainant by calling her cell phone at approximately 3:08 a.m. and had a conversation which she documented, albeit notverbatim, as follows: She was crying, she just sounded like she was in a state of disbelief. She was upset. She was telling me that [the accused] had hit her. . ..

She was upset.

She said [the accused] . . . had kicked her in the face and she was on her way to the Victoria Hospital. [118] It is that comment that the Crown wished to tender as evidence of its truth based upon the fact that it formed part of theres gestae of that morning’s events, being that the accused kicked the complainant in the face. [119] The judge held that in light of the corroborative evidence and her finding that the complainant’s mind was dominated atthe time of the comment by the stress of the event, sufficient guarantees of trustworthiness favoured its admission. [120] The accused argues against the admission of res gestae due to the amount of time which passed between the assault andthe comment and therefore, it could not be considered to be spontaneous enough to be considered part of the res gestae. [121] There is a dispute as to how long after the assault the comment was made.

The accused states that it was made an hourafter the fact. Constable Prefontaine states that she spoke to the complainant approximately 20 minutes after the 911 call. The judgeconcluded that it was likely approximately one hour earlier. [122] The judge accurately considered the circumstantial guarantees of trustworthiness and the law specific to res gestaecomments (see R v Head, 2014 MBCA 59). She considered the key issues surrounding the acceptance of such a comment, that being theneed for a temporal connection and a degree of contemporaneity.

None of the witnesses support the accused’s claims that thecomplainant was angry or intoxicated at the time of making these comments nor was there any direct evidence of animus on the part ofthe complainant. The judge stated (Johnston #3 at para 52): I am satisfied that [the comment] was made while [the complainant] was operating under the stress of excitement caused by the allegedcircumstances at the residence on the morning in question.

Additionally, as was said in Dakin [R v Dakin, (ON CA),1995 CarswellOnt 4827 (CA)], at para. 20, “The admissibility of the declaration is assessed not simply by mechanical reference to timebut rather in the context of all of the circumstances obtaining (sic) at the time, including those which tell against the possibility ofconcoction or distortion.” [123] I find that the judge did not err in her conclusion with respect to the telephone conversation. [124] A significant amount of independent corroborative evidence supported the veracity of the contents of the complainant’sstatement as well as the res gestae comment.

After reviewing the substantial evidence which corroborated the statement and comment,the judge held that the standard of threshold reliability had been met and I agree with her. Self-Defence [125] A substantial amount of the evidence in this case was entered by way of a voir dire which was then applied to the trialmutatis mutandis. The only evidence beyond the voir dire was the recalling of one witness, the friend of the complainant, Miguez. Hertestimony at trial was substantially the same as had been provided during the voir dire.

The judge also had to determine the ultimatereliability and weight to be given to a statement and comment of the complainant that had been admitted at the voir dire on the basis ofthreshold reliability. [126] The judge rejected the defence of self-defence. She acknowledged that based on the accused’s comments and theobservations by the witnesses of the injuries sustained by the accused, the accused struck the complainant only after she struck him first. However, the force used in response must be objectively reasonable in the circumstances.

She found that the Crown had proven beyonda reasonable doubt that the force used by the accused in self-defence was not reasonable in the circumstances and not proportional. Theaccused submits that this finding was unreasonable. [127] The conclusion of the judge that the force used by the accused was excessive, is amply supported by the evidence.

Given the degree of violence demonstrated by the physical evidence, the testimony of the fear in the complainant’s voice and her shocked demeanour after the assault, the nature of some of the accused’s injuries and the seriousness ofthe complainant’s injuries, it was more than open to the judge to accept the accused’s contention that the complainant had hit him first,but also to find that: [W]hat might have subjectively began as a viable contention of self-defence on the accused’s part transitioned objectively into a courseof conduct that constituted assault cause bodily harm.

His actions in response to being struck were not reasonable or proportionate in the

circumstances. [ 128 ] It was also reasonable for the judge to reject the defence theory that the complainant’s injuries were sustained by a fall down the stairs, rather than by an assault. She stated: Nor am I satisfied that the complainant incurred her injuries by virtue of a fall down the stairs, as speculated by the defence. The blood at the top of the stairs, in the bedroom, and broken nightstand all illustrate that a physical altercation had occurred in the upstairs portion of the residence.

While Miguez heard loud thumps and found the complainant at the bottom of the stairs, such sounds are also consistent with a stomping action by the accused and her ending up where she did. . . . Also inconsistent with a fall down the stairs theory is the complainant’s description of how the injuries were incurred and the photographs, which are corroborative of those injuries.

The clumps of hair found by Constable Prefontaine are consistent with the complainant’s description of being dragged by her hair, not by a fall. [ 129 ] There was more than enough evidence to support the judge’s finding that the Crown had proven beyond a reasonable doubt that the assault by the accused was not reasonable or proportionate in the circumstances. [ 130 ] I would dismiss the appeal as to conviction.

Sentence Appeal [ 131 ] The Crown seeks leave to appeal and if granted, appeals the sentence imposed by the judge of a suspended sentence, two years of supervised probation and 150 hours of community service. The sentence also included a ten-year firearms prohibition, a DNA order and a victim surcharge of $200. The Court granted leave but dismissed the sentence appeal at the hearing with reasons to follow. These are those reasons. [ 132 ] The Crown argued that the judge erred in failing to give sufficient weight to the paramount principle in cases of domestic violence; that of denunciation and deterrence.

Instead, it is submitted that the Court placed substantially greater emphasis on the circumstances of the accused and his prospects for rehabilitation. The Crown submitted that given the degree of violence present in this assault and the fact that the nature of the relationship was an aggravating factor under

section 718.2 (a)(ii) of the Code , a sentence of 12-months incarceration followed by 24 months of supervised probation was a more appropriate sentence. [ 133 ] This is a tragic case, but I am mindful of this Court’s standard of review in a sentence appeal which is one of deference. This Court can intervene only if there was an error in principle that had an impact on the sentence or the sentence itself is demonstrably unfit (see R v Lacasse , 2015 SCC 64 ; R v Joe , 2017 YKCA 13 ; and R v McClements , 2017 MBCA 104 at para 52 ).

An error in principle may involve a failure to take into account a relevant factor, consideration of an irrelevant factor, assignment of insufficient weight to a relevant factor, overemphasis of relevant factors and an error of law. [ 134 ] This Court has repeated many times that cases involving domestic violence require a strong message of deterrence and denunciation (see R v Gardiner , 2017 MBCA 57 at para 8 ). However, the judge in this case was the motion judge, the trial judge and the sentencing judge. She was very familiar with all the distressing and unique circumstances of this case.

Her reasons were careful, well reasoned and appropriately nuanced. [ 135 ] The accused had no criminal record, was employed, was assessed as a low risk to reoffend and was a youthful offender. He had a good support system and was a productive member of the community. The judge also found that, “There is a strong chance of complete rehabilitation for [the accused]”. [ 136 ] In particular, the judge was alive both to the severity of the assault in this case and to the need for deterrence and denunciation in domestic violence situations.

She stated that, “What occurred cannot be regarded as a minor assault as would be evident from a single slap or blow.

This assault, while not prolonged, did result in significant injury, albeit not long-lasting in nature.” [ 137 ] And, after listing the mitigating factors, she reminded herself that, “This conduct must be balanced with the denunciation and deterrence that is needed and must be considered in domestic assault cases”, but concluded that after reviewing the jurisprudence, the sentence she imposed did indeed satisfy the principles of deterrence and denunciation. [ 138 ] I see no error or grounds for appellate intervention.

While I believe that leave to appeal should be granted given the combination of the violence of the assault and the sentence given, in the end, I would dismiss the sentence appeal. JA I agree: JA I agree: JA