R v Badger, 2021 SKCA 118

Court of Appeal for Saskatchewan Docket: CACR3347 Citation: R v Badger , 2021 SKCA 118 Date: 2021-09-01 Between: Jacob Charles Badger Appellant And Her Majesty the Queen Respondent Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Caldwell In dissent: The Honourable Mr. Justice Kalmakoff On appeal from: 2019 SKPC 43 and 2019 SKPC 65 , Regina Appeal heard: June 1, 2021 Counsel: Thomas Hynes for the Appellant Grace Hession David for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] On April 10, 2018, two masked men burst into a home and, in the ensuring struggle, Jodie Ray was shot. In the immediate aftermath of the shooting, Mr. Ray twice identified Jacob Badger as the person who had shot him. Mr. Badger was charged with attempted murder. At trial, Mr. Ray could not, or would not, identify his assailants. However, the statements he had made shortly after being shot were admitted as spontaneous utterances to assist in proving Mr. Badger was the perpetrator. Mr. Badger testified on his own behalf, denied involvement in the shooting and provided alibi evidence.

He was acquitted of attempted murder and was convicted of the lesser included offence of aggravated assault. [ 2 ] Mr. Badger appealed his conviction and sentence; but, at the hearing of the appeal, he advised that he was abandoning his sentence appeal. With regard to the conviction appeal, he asserts that the trial judge should not have admitted Mr. Ray’s prior statements as spontaneous utterances, erred in his assessment of the alibi evidence, and erred in his assessment of the identification evidence. Mr. Badger requests a new trial.

The Crown has not appealed the acquittal on the attempted murder charge. [ 3 ] For the reasons that follow, I would dismiss Mr. Badger’s appeal from his conviction. II. BACKGROUND [ 4 ] On April 10, 2018, Mr. Badger was visiting Mr. Ray’s sister, Brandi Ray, at her home in Regina [House]. They had gone out together for a few hours and returned to the House. Mr. Badger is Brandi’s friend and was frequently at the House. Mr. Ray also lived at the House. On that day, Mr. Ray, his girlfriend (Shaylena Kay), his mother (Shannon Ray), his brother and his step-father were also present. It appears that Mr.

Badger and Brandi were in a different room than Mr. Ray during the majority of the time that Mr. Badger was in the House on the day in question. Shannon testified that Mr. Badger was friends with everyone at the House. Mr. Badger testified that he had met Mr. Ray seven or eight times prior to that day and they were friendly with each other. [ 5 ] Mr. Badger has a very distinctive nickname, which he also uses as his social media handle.

He is known to his acquaintances as “Jake from State Farm”, based on his name and his penchant for wearing khakis like the popular character from the insurance company advertisements. Mr. Badger testified that Mr. Ray called him Jake from State Farm when he saw him at the House on April 10, 2018. [ 6 ] At some point, around 3:10 a.m. to 3:15 a.m., Mr. Badger left the House after telling Brandi that he had to go but that he would be coming back. Brandi testified that Mr. Badger told her that he was leaving because he had to do something with his family, who lived only a few blocks away. Mr.

Badger testified that he was going home to sleep and said that he would be back in a bit, meaning in the morning. [ 7 ] The evidence was inconsistent as to whether Mr. Ray and his girlfriend were in a bedroom when Mr. Badger departed; but, in any event, there was no interaction of any consequence between them when he left. There was little evidence that Mr. Badger interacted at all with Mr. Ray that day prior to leaving the House. Shannon testified that everything was normal when Mr. Badger left. There was no evidence of any conflict or problems of any kind before he exited the House. Mr.

Badger testified that there was no bad blood between Mr. Ray and him and that he was not aware of any animosity between Mr. Ray and any of his close friends. [ 8 ] Approximately ten minutes after Mr. Badger departed, there was a knock at the front door of the House. Mr. Ray and Shannon both came out of their respective bedrooms and headed towards the door, but Mr. Ray told his mother that he had a bad feeling and that she should get away. Shannon testified that Mr. Ray pushed her away from the door and he opened it. At that point, Shannon saw a woman at the door who held the door open.

At the same time, Shannon saw two masked men coming up the front stairs with the first man

carrying a gun. She ran to her bedroom, closed the bedroom door and called 911. [ 9 ] In her bedroom, Shannon could hear Mr. Ray struggling with the intruders. She testified that she heard Mr. Ray say, “you have to fight with a gun, you little bitches?” Shannon did not hear any other voices. She then heard two gun shots and came out of her bedroom to find that Mr. Ray had been shot. The assailants were gone. Other people in the house provided assistance to Mr. Ray while Shannon stayed on the line with the 911 operator.

A portion of the transcript of that telephone conversation is as follows (as quoted in R v Badger , 2019 SKPC 43 at para 12 [ Badger Voir Dire ]): Emergency Services: Okay ma’am tell me exactly what happened. Shannon: I don’t know. Somebody came to the door. We came to the door. Another voice: Hurry up. Shannon: Shut up. Went to the door and he came bursting in and shot my son. Emergency Services: They what, sorry? Shannon: We answered the door. Emergency Services: Right. Shannon: They pushed their way in the house and shot my son. Emergency Services: They shot your son? Shannon Ray: Yes. Emergency Services: K.

Are you with your son right now? Shannon Ray: Yah, he is here right now. Emergency Services: Okay. We’ve got help notified ma’am, how old is your son? Shannon Ray: 31. Emergency Services: Okay. Shannon Ray: Please he has lost a lot of blood. Emergency Services: Is he awake? Shannon Ray: Yah, he’s awake. Emergency Services: Is he breathing? Shannon Ray: Yes. Emergency Services: Okay, I am going to ask you a couple questions while we’ve got help on the way, okay? Shannon Ray: Okay. Emergency Services: When did this happen? Shannon Ray : Who, who shot you?

Another Voice : Fucking Jake from State Farm. (Emphasis added in the Badger Voir Dire ) [ 10 ] In her testimony, Shannon identified Mr. Ray as the person noted as “Another Voice”, who answered her question about who had shot him. [ 11 ] Brandi testified that she was in Shannon’s bedroom when her mother came into the room and told her to get into the closet. She heard Mr. Ray wrestling with the intruders in the other room and then heard two bangs.

Brandi did not hear anything that was said and did not observe any of the people who had forced their way into the House. [ 12 ] Shaylena testified that there was a knock on the door and Mr. Ray left the bedroom, while she stayed behind. She heard Mr. Ray say, “who the fuck is this knocking”. She stated that Mr. Ray opened the front door and she heard two gunshots followed by a scream from Mr. Ray. She could not observe what was occurring and did not hear any conversation between Mr. Ray and the assailants. [ 13 ] Constable Manz was one of the police officers who responded to the 911 call.

He learned from the occupants of the House that a person known as Jake from State Farm was a potential suspect. Someone in the House showed him the Facebook profile for a person with this handle, and he was given a specific residential address by Brandi for where that person lived. The address was for a home located two blocks away from the House and one of the residents was noted to be a Jacob Badger, which Cst. Manz noted was similar to the name Jake. Constable Manz looked at the Facebook profile page for Jake from State Farm, compared it to a photograph of Mr.

Badger in the Regina Police Service system and observed that they appeared to be the same person. Constable Manz was providing the name of the suspect to other officers when he observed Mr. Badger walking along the south side of the House and going up the stairs. He called Mr. Badger over to him. Mr. Badger came to the officer, was cooperative and was immediately arrested. Constable Manz observed him to be crying or on the verge of crying. As Cst. Manz was standing with Mr. Badger, the EMS attendants wheeled Mr. Ray out of the House on a gurney. Constable Manz observed Mr.

Ray to be seated up on the gurney and looking in their direction. He heard Mr. Ray very clearly state, “That’s the fucker who shot me”. Mr. Ray was five to ten yards away from Mr. Badger when he said this. Constable Manz confirmed that there were only uniformed police officers and Mr. Badger in the area at the time. Constable Manz believed Mr. Ray was referring to Mr. Badger when he made this utterance. [ 14 ] Constable Gruber also responded to the dispatch from the 911 call. He entered the House, located Mr. Ray and administered first aid. EMS personnel arrived and took over Mr. Ray’s care. He noted that Mr.

Ray was very aware of his surroundings and was coherent. Constable Gruber did not observe any communications difficulties, other than Mr. Ray having to talk through his pain. He stayed with Mr. Ray as the EMS personnel wheeled him out to the ambulance on the stretcher. Constable Gruber saw Mr. Badger outside and then observed Mr. Ray, unprompted, to sit up and spontaneously say, “That’s the guy who shot me”. Constable Gruber testified that Mr. Ray immediately repeated the same allegation, although he could not recall the exact words of the second utterance. Constable Gruber testified that Mr.

Ray was startled to see Mr. Badger, but he was very alert, was looking directly at Mr. Badger and made the statements with “the utmost certainty”. Constable Gruber estimated that Mr. Ray was ten feet from Mr. Badger when he made the accusatory statements. Constable Manz confirmed only uniformed police officers were on the street and firmly believed Mr. Ray was referring to Mr. Badger. Constable Gruber rode with Mr. Ray in the ambulance and observed him to be coherent throughout the transport. [ 15 ] Mr. Ray was unable, or unwilling, to identify the intruders during his testimony at trial.

He testified that he opened the door, a

woman asked him a couple of questions and two masked men then came towards him from the side of the House. Mr. Ray stated that he was not expecting anyone and was not concerned when he heard the knock, although he told his mother not to answer the door because he would answer it. He testified that, when the men came up the stairs, he blocked the front door and tried to grab the shotgun, but it went off and he was shot. Mr. Ray said the two men were wearing face masks and he could not see any part of their faces. He testified that he does not know who the two men are.

The assailants immediately left after the gun was fired, and Mr. Ray ran back towards his bedroom, while telling his mother to call the ambulance. He testified that his next memory was waking up in the hospital after surgery. In his testimony, Mr. Ray said that he did not recall his mother asking him questions, seeing the police in the House or being taken out of the House to the ambulance. [ 16 ] Mr. Badger testified in his own defence and did not call any other defence witnesses. He agreed that he was at the House during the night in question and left around 3:00 a.m. or 3:05 a.m. Mr.

Badger testified that he departed through the front door, went to the back alley and started walking home. He stated that he immediately ran into his friends, Belinda Stanley and Charles Wapan, and the three of them went to his home, stopping at a couple of houses on the way in their unsuccessful attempts to find someone to give them cigarettes. Mr. Badger testified that he accessed Facebook when he got to his home and received a message from Mr. Ray’s brother stating that Mr. Ray had been shot. He testified that he, Ms. Stanley and Mr.

Wapan wanted to go see what had happened, so they walked to the House; but, when they got close, they could see the police emergency lights, so Ms. Stanley and Mr. Wapan turned around and left. Mr. Badger stated he kept walking and, when he went into the yard, a police officer demanded his name and he was arrested. During his testimony, he denied being involved in the shooting. [ 17 ] In a statement that he provided to the police several hours after the shooting, Mr. Badger said that he had gone home, laid with his baby and smoked a couple of cigarettes.

In that police statement, which had been admitted as voluntary by consent at trial, he did not mention that he had met up with Ms. Stanley and Mr. Wapan on the way home. III. THE VOIR DIRE AND TRIAL DECISION [ 18 ] After Mr. Ray failed to identify his assailants during his testimony, the Crown sought to introduce into evidence the statement he made during the 911 call and the statements heard by Cst. Manz and Cst. Gruber, in which Mr. Ray had implicated Mr. Badger as the person who had shot him. A voir dire was held for this purpose.

After the conclusion of the voir dire , the trial judge determined the statements should be admitted into evidence as res gestae or on the basis of the spontaneous utterance exception to the hearsay rule: see the Badger Voir Dire at para 45. In doing so, he canvassed the law regarding res gestae and spontaneous utterances as set out in R v S.A.B ., 2018 SKQB 204 ; R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787; S. Casey Hill, Louis P. Strezos and David M.

Tanovich, McWilliams’ Canadian Criminal Evidence , loose-leaf (Rel 2021-No 2) 5th ed (Toronto: Thomson Reuters, 2019) at para 7:120.20 [ McWilliams’ ]; and R v Trotchie , 2018 SKQB 129 , aff’d 2019 SKCA 43 , [2019] 10 WWR 187. The trial judge further relied on several other cases for particular aspects of his analysis of this issue. In the course of his reasons, he reached the following conclusions ( Badger Voir Dire ): [27] … In the very short time that followed the shooting Shannon Ray asked her son who shot him. Without any hesitation Jody Ray answered “Fucking Jake from State Farm” (Jacob Badger).

I find this statement to be made contemporaneously with the intrusion, shooting and injuries (event). [28] … This time Jody Ray did not identify the shooter by name, rather he looked at Jacob Badger and said the words (or words to the effect) “That’s the guy who shot me”. This statement was not prompted by a question and was a spontaneous utterance by Mr. Ray while he was about to be loaded into the ambulance. I find this statement is “so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event”.

As a result, I find this statement to be made contemporaneously with the intrusion, shooting and injuries (event). … [30] I also find that the pressure and emotional intensity that Jody Ray experienced as a result of the intrusion, shooting and injuries persisted for some time, including at 3:45 a.m. when Jody Ray made a second statement in relation to Jacob Badger, “That’s the guy who shot me”. I find that Jody Ray made this second statement under pressure and emotional intensity which provides the guarantee of reliability. … [44] I find that prior to the shooting Jody Ray had consumed alcohol and marijuana.

Considering all the evidence before me I am unable to conclude that Jody Ray was drunk or intoxicated such that this would result in him making an error in his identification of the person who shot him. Conclusion [45] I find that in the circumstances of this case, the two statements made by Jody Ray in the morning of April 10, 2018 are admissible pursuant to the res gestae exception to the rule against hearsay.

The weight that I will ascribe to Jody Ray’s statements, however, is a matter for my decision on the trial proper. [ 19 ] After the trial judge admitted the spontaneous utterances, the trial continued, and Mr. Badger testified in his own defence. Although Ms. Stanley and Mr. Wapan had been subpoenaed by the defence, and were present in the courthouse in response to their subpoenas, they were not called as defence witnesses. [ 20 ] The trial judge rendered a written decision acquitting Mr. Badger of attempted murder and convicting him of aggravated assault: R v Badger , 2019 SKPC 65 [ Trial Decision ].

The trial judge began his decision by incorporating some of his findings of fact from the Badger Voir Dire and making further findings of fact. He then framed the first issue as a determination of whether the Crown had proven beyond a reasonable doubt that Mr. Badger was the person who had shot Mr. Ray. The trial judge referenced the well-established

burden of proof and this Court’s discussion of R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], in R v Klemenz, 2015SKCA 89, [2016] 1 WWR 234. He concluded as follows on this first issue: [29] In this case I do not believe the evidence of the accused and hence I do not have to acquit him. Overall, I found him to be less thancredible on two central matters. At trial he initially testified that he could not remember what Jody Ray said to him while the two menwere near each other at the ambulance. Somewhat reluctantly, he admitted on cross-examination that he thinks Jody Ray probably said tohim “Your bro shot me”.

He was, however, one hundred percent certain that Jody Ray did not identify him as the shooter. On this point Imuch prefer the evidence of Constable Manz and Constable Gruber who were nearby to both men. Constable Manz testified he heard JodyRay say to Mr. Badger “That’s the fucker who shot me”. Constable Gruber testified he heard Jody Ray say to Mr. Badger “That’s the guywho shot me”. Both officers were sober. Mr. Badger was not. He had been using marijuana and morphine earlier that evening and earlymorning. Overall, I found Mr.

Badger’s evidence on this point to be self-serving and less than credible. [30] In addition, Mr. Badger has provided alibi evidence to the court. In particular he testified that between the time he left the Rayresidence shortly after 3:00 a.m. and 3:45 a.m. when he was arrested by the police, that he was in the company of Belinda Stanley, CharlesWapan and spoke to [Jenell] Cote.

Although corroboration is not required for alibi evidence to be accepted, the absence of supportingwitness evidence, his own impairment from morphine, and the self-serving nature of this evidence undermine the strength of the alibievidence. As a result, I do not believe Mr. Badger’s alibi. [31] In this case I do not accept all of the evidence of Jody Ray, the victim of the crime. In particular I do not believe Jody Ray does notknow who shot him.

Overall, I found Jody Ray to be a reluctant witness who did not want to implicate the accused, Jacob Badger. [32] I find that significant weight should be given to the two spontaneous utterances made by Jody Ray on April 10, 2018. I adopt myanalysis of the sobriety of Jody Ray as set out in my previous decision on this matter Badger [Voir Dire] at paragraphs 31–44. I find thatprior to the shooting, Jody Ray had certainly consumed some alcohol and marijuana.

However, considering all of the evidence before me Iam unable to conclude that at the time of the shooting and for 22 minutes which followed, that Jody Ray was so drunk and/or so impairedthat this would result in him making an error in his identification of the person who shot him. I am reminded that on two separateoccasions in the presence of different people, Jody Ray indicated that Mr. Badger was the shooter. The first instance was recorded in a 911call, shortly after he was shot at 3:23 a.m.

In response to a simple question from his mother “Who, who shot you?” His immediate andunequivocal response was “Fucking Jake from State Farm”, the nickname Jacob Badger was known by. The second instance occurred at3:45 a.m., approximately 22 minutes after the shooting. This time Jody Ray did not identify the shooter by name, rather from the gurneyhe was lying on, he looked directly at nearby Jacob Badger and said words (or words to the effect) “That’s the guy who shot me”. Thisstatement was not prompted by any question from anyone.

I find this evidence to be compelling. [33] The circumstantial evidence reveals that Jacob Badger left the Ray residence between 3:10 a.m. and 3:15 a.m. Jacob Badger’s reasonfor leaving the residence is unclear. Brandi Ray testified that prior to leaving the residence Jacob Badger told her he had to go see hisfamily and that he was coming back. Mr. Badger testified that before he left the residence, he told everyone in the house that he was goingto go home to sleep and would be back in a bit.

The shooting occurred 8 to 13 minutes after Jacob Badger left the residence, at 3:23 a.m.Jacob Badger is next seen walking along the side yard of the Ray residence at 3:45 a.m. when he is arrested by Constable Manz. I find thatwhen I consider this evidence in conjunction with the two spontaneous utterances made by Jody Ray it leads me to conclude that JacobBadger had a unique opportunity to be involved in the shooting. I find this evidence to be compelling. … [35] Based on the strength of the evidence which I do accept, namely: 1.

Jody Ray made two spontaneous utterances at the scene of the shooting during which he identified Jacob Badger as the person who shothim. 2. Jacob Badger had a unique opportunity to have taken

part in the shooting. I have determined that the Crown has proven identity beyond a reasonable doubt. I find that Jacob Badger was the person who shot JodyRay. [21] Some of the evidence at trial, including expert evidence, dealt with the presence of gunshot residue that was found onMr. Badger’s hands after he was arrested. The trial judge examined that evidence and found that it was not compelling because of the riskthat it had been inadvertently transferred to Mr. Badger during his arrest. The Crown has not challenged that determination upon appeal. [22] Having found that Mr.

Badger was the person who had entered the House with the shotgun and who had shot Mr. Ray, the trialjudge moved on in his analysis and determined that the Crown had failed to prove that Mr. Badger had intended to kill Mr. Ray. As aresult, Mr. Badger was found not guilty of attempted murder and convicted of the lesser included offence of aggravated assault. TheCrown has not cross-appealed from the acquittal for attempted murder. IV. ISSUES [23] The following issues arise in this matter: (

a) Did the trial judge err in admitting the evidence of the spontaneous utterances? (

b) Did the trial judge err in his assessment of the alibi evidence? (

c) Did the trial judge err in his assessment of the identification evidence?

V. ANALYSIS A. Spontaneous utterances [24] As set out above, there were two statements admitted into evidence by the trial judge. The first consisted of Mr. Ray’s answerduring the 911 call to his mother’s question of, “Who, who shot you?” That answer was, “Fucking Jake from State Farm”. The second setof utterances occurred as Mr. Badger stood in close proximity to Mr. Ray when Mr. Ray was being loaded into the ambulance. ConstableManz heard Mr. Ray state, “That’s the fucker who shot me”; Cst. Gruber heard him say, “That’s the guy who shot me” and then repeatthe statement in similar words that Cst.

Gruber could not exactly recall. Both officers firmly believed Mr. Ray was referring toMr. Badger. [25] Mr. Badger challenges the admission of the spontaneous utterances on specific grounds that, in his view, support his overallcontention that the statements did not meet threshold reliability. He argues the trial judge failed to consider the dangers of eyewitnessidentification evidence in his assessment of threshold reliability. He further asserts that the trial judge misinterpreted the evidence ofMr. Ray’s level of intoxication and the actual identification made by Mr.

Ray. [26] The Crown argues that the trial judge correctly identified the law related to the admission of spontaneous utterances, and saysthat those statements were properly admitted as a traditional exception to the hearsay rule. Additionally, it submits they were also admittedunder a principled exception analysis. Given my conclusions below, I need not address this secondary argument. 1.

General principles regarding spontaneous utterances [27] Out-of-court statements are presumptively inadmissible for the truth of their contents: R v Starr, 2000 SCC 40 at para 162,[2000] 2 SCR 144; R v Durocher, 2019 SKCA 97 at paras 56–57, 380 CCC (3d) 511; and R v Bear, 2020 SKCA 86 at para 51, 389 CCC(3d) 437.

One of the exceptions to this rule is res gestae, with its most common category more modernly and usefully referred to asspontaneous utterance: R v Nurse, 2019 ONCA 260 at paras 58–59 and 78, 145 OR (3d) 241; R v Hall, 2018 MBCA 122 at para 41,[2019] 1 WWR 612 [Hall]; R v Head, 2014 MBCA 59 at para 25, 310 CCC (3d) 474; and R v Khan, (SCC), [1990] 2SCR 531 at 540. [28] The general nature and test for admissibility of a spontaneous utterance was described in Hall as follows: [41] A spontaneous (or excited) utterance is one of the categories of res gestae recognised to be a traditional exception to the hearsay rule… .

A spontaneous utterance resulting from a startling event is admissible if the circumstances in which it was made exclude thepossibility of concoction or distortion and there are no special features of the case that give rise to a real possibility of error … . Thecircumstances of the making of the statement provide the circumstantial guarantee of trustworthiness to alleviate any hearsay danger … . [42] Consideration of this traditional exception is not a mechanical process.

Rather, a functional analysis of the surrounding circumstancesof the statement should be undertaken … . … [58] While hearsay evidence is presumptively inadmissible, if the evidence meets the criteria of a traditional exception to the hearsay rule,it is presumptively admissible because the traditional exceptions “incorporate an inherent reliability component”… . … [63] Under the principled approach, questions of admissibility focus on threshold reliability as opposed to the ultimate reliability of thestatement which is for the trier of fact to decide.

The requirement of reliability is about ensuring the integrity of the trial process.

The trialjudge must decide whether the given circumstances “sufficiently overcome” the inability to test the hearsay evidence in the regular way… . [29] A further description of the exception for spontaneous utterances, with an expansion of the analysis to be applied regarding thenecessary contemporaneity, is set out in R v Mullin, 2019 ONCA 890, 383 CCC (3d) 16: [41] The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statementrelating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under thestress of excitement cause by the event or condition”: David M.

Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: IrwinLaw, 2015), at p. 191. In order for a statement to be admissible, “[t]he stress or pressure of the act or event must be such that thepossibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to theoccurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive andmisrepresent”: R v. Khan (1988), (ON CA), 42 C.C.C. (3d) 197 (Ont.

C.A.), at 207 … . [30] The authors of McWilliams’ list two key criteria for admission: “(1) that the statement be made contemporaneous to an unusual,overwhelming event that (2) left the declarant (at the time of the declaration) under pressure or emotional intensity which would give theguarantee of reliability” (footnotes omitted, at para 7:120.20). [31] For a spontaneous utterance to be admissible, the circumstances in which the statement was made must be carefully examinedin order to determine if the statement in question meets the test of threshold reliability.

Trial judges should ask themselves whether theevent was so unusual or startling that it would dominate the thoughts and expressions of the person making the utterance. Exactcontemporaneity of the startling event or condition is not required, as spontaneity resides on a spectrum and is dependent on thecircumstances, but it must be reasonably contemporaneous and the nature of the event must be such that it would still be dominating themind of the declarant when the statement is made. Some of the cases also require that there be an absence of special features that could

likely result in an error by the declarant. For these principles, I rely on the above noted authorities, plus R v Khan, 2017 ONCA 114 atpara 15, 45 CCC (3d) 419, leave to appeal to SCC refused, ; R v Liard, 2015 ONCA 414 at paras 63–64, 327 CCC (3d)126, leave to appeal to SCC refused, ; and R v Andrews, [1987] 2 WLR 413 (HL) at 424 [Andrews]. [32] These aspects of the law were correctly identified by the trial judge. Mr. Badger does not take issue with that part of thedecision. It is the application of the principles where Mr.

Badger says the trial judge erred. [33] The factual findings regarding the circumstances surrounding a spontaneous utterance are subject to review on a standard ofpalpable and overriding error. The admissibility of hearsay evidence is a question of law; however, when evaluating hearsay evidence, atrial judge’s determination of threshold reliability is entitled to deference: R v Youvarajah, 2013 SCC 41 at para 31, [2013] 2 SCR 720. Asnoted in Hall, “Hearsay decisions, if informed by the correct principles of law and reasonably supported by the evidence, are entitled todeference on appeal …” (at para 40).

See also R v Blackman, 2008 SCC 37 at para 36, [2008] 2 SCR 298. 2. Analysis of threshold reliability of the utterances [34] Mr. Badger submits the trial judge erred by failing to consider the dangers of eyewitness identification evidence when heanalyzed the threshold reliability of the statements. He asserts the difficult circumstances of the events could have distorted Mr. Ray’sview of reality and should be considered as a special feature that, in conjunction with Mr.

Ray’s level of intoxication, should haveprevented the admission of the utterances. [35] The inherent dangers and frailties of eyewitness identification evidence are well known: see, for example, R v Pelletier, 2016SKCA 62, 480 Sask R 56, and R v Bigsky, 2006 SKCA 145, [2007] 4 WWR 99 [Bigsky]. However, it must be kept in mind that, at thisstage of the analysis, we are assessing threshold reliability for the purposes of admissibility. By definition, in order to be admissible, aspontaneous utterance must occur in reaction to an emotionally charged or pressure-filled situation.

These are the same types ofcircumstances that fuel some of the problems with the reliability of eyewitness identification evidence. If a trial judge were to consider theinherent or fact-specific frailties of such evidence as a special circumstance that militated against admission when testing the thresholdreliability of a spontaneous utterance, the scope of this exception to the hearsay rule would be significantly limited.

I have been referred tono authorities that categorize this issue as a special feature to be considered at the threshold reliability stage and that narrow theavailability of the exception in the way argued by Mr. Badger. I am not prepared to find that it should be so categorized. The surroundingcircumstances in which the identification was made remains a valid consideration, but the trial judge fully examined those difficult andtense circumstances in his evaluation of threshold reliability. [36] The weight to be assigned to such evidence remains an open question after the spontaneous utterance is admitted.

It is at thepoint of weighing the evidence that the inherent and situation-specific frailties of the eyewitness identification evidence should be morefully considered. [37] Mr. Badger argues that Mr. Ray’s level of intoxication is a special feature that should have resulted in the utterances not beingadmitted.

Whether intoxication is categorized as a special feature – as it was in Andrews – or whether it is considered as part of thecircumstances being evaluated, I agree that the intoxication of the declarant is “an appropriate basis for seeking to exclude an unreliablestatement …” (McWilliams’ at para 7:120.20). [38] Mr. Badger takes issues with the trial judge’s statement in the Badger Voir Dire, where he wrote, “Jody Ray testified that he didnot know who shot him. He testified that he was too drunk to remember” (at para 3). Mr. Badger asserts that Mr.

Ray did not testify thathe was too drunk to remember but, instead, testified that he was drunk but could not identify his assailants because they were wearingmasks. Mr. Badger is correct in his categorization of this initial part of the testimony. However, a reading of the entirety of paragraph 3 ofthe voir dire decision shows the trial judge did not simply discard Mr. Ray’s testimony on the basis that he was too drunk to remember: [3] Jody Ray testified that he did not know who shot him. He testified that he was too drunk to remember.

He recalled hearing a knock atthe front door of his residence in the early morning hours of April 10, 2018. He testified that he opened the front door and initiallyencountered a woman who began asking him some questions. After he asked her what she wanted, he saw two guys who were “maskedup” come from the south side of the residence to the front doorway. One of the men had a double barrelled shotgun which he pointed infront of Jody Ray’s face. Jody Ray grabbed the gun barrel with his right hand. The gun went off and he sustained gunshot wounds to hisright hand, legs and chest.

After the shooting he recalled going to his room in the residence and telling his mother to call an ambulance.The next thing he recalled was waking up in a hospital after surgery. Mr. Ray testified in-chief that he could not recall being asked anyquestions by his mother after being shot. In addition, Jody Ray did not recall being taken out of his residence to an ambulance. [39] The first part of the trial judge’s observations in paragraph 3 of the Badger Voir Dire find support in Mr. Ray’s evidence, wherehe testified as follows: Q Okay.

And what do you see when you open the door?A Some woman there, standing there, asked a few questions, and then --Q What did she ask?A I can’t remember.Q Okay. Was it -- do you remember whether it seemed sort of, like, polite or was it aggressive right away orwhat?A No, it was -- yeah, it was more polite.Q And were you answering the questions? Do you remember?A No, I -- I just wanted to go back to sleep.Q Could you see her face?A I was too intoxicated. I can’t remember.Q Okay.A The whole night was -- Q So would you --

A -- a blur after that. [ 40 ] While the trial judge’s observations in paragraph 3 of the Badger Voir Dire are not completely accurate, a reading of the whole of the voir dire decision reveals that the trial judge fully considered the effect of Mr. Ray’s level of intoxication when he analyzed the threshold reliability of the utterances. In his recitation of the facts, he noted that Mr. Ray had consumed alcohol and marijuana on the day in question. In his analysis, he extensively analyzed the evidence of alcohol consumption.

There is utility in setting out that analysis in order to demonstrate its depth ( Badger Voir Dire ): [31] Jody Ray testified that he was pretty drunk that night. He estimates that prior to being shot he consumed 10 ounces of vodka, ten or eleven beers and smoked four joints containing two grams of marijuana. He further testified on cross-examination that he was pretty sure he was at his limit and that if he drank any more alcohol or smoked any more marijuana, he would have passed out. Mr. Ray testified that he does not recall making either of the two statements as referenced above.

However, I would note, and consider it significant, that after he was shot he had the presence of mind to ask his mother to call for an ambulance. [32] Shannon Ray testified in-chief that before Jody was shot he was kind of drunk , he had run out of booze and was going to go to bed. After Jody Ray was shot and during the 911 telephone call (Exhibit P-5), Shannon Ray advised Emergency Services that her son was awake, breathing, bleeding and alert.

On cross-examination Shannon Ray maintained that before she left the house to go to the casino on her own Jody Ray had been drinking alcohol and that he was wandering around the house. When she returned from the casino she observed that Jody was in his bedroom with his girlfriend. She did not think that he had any more alcohol to drink. [33] Jody’s sister, Brandi Ray, testified on cross-examination that during the evening of April 9, 2018, Jody had been drinking hard alcohol. She further testified that when Jody drinks alcohol he drinks for days.

Brandi thought Jody was drunk that night because she observed him to stagger when he walked and he was saying the same “stuff” over and over. [34] Shaylena Kay was Jody Ray’s girlfriend at the time of the shooting. In April 2018 Shaylena lived with Jody … . She recalled that she and Jody went to the casino with Shannon. Shaylena testified in-chief that she and Jody were drinking alcohol at the residence and at the casino. She added that she and Jody were drunk but not “crazy drunk ” and that she can remember what happened that night. When they returned to the residence they also used some weed (marijuana).

On cross-examination Shaylena Kay testified that she and Jody drank either a 40 ounce or 26 ounce bottle of hard liquor that night. She thought that Jody drank more than her. She estimated that Jody drank about four shots of alcohol to every one shot of alcohol that she drank. She also testified on cross-examination that she thought that Jody had two or three beers at the casino and they smoked a joint or two of marijuana. She smoked more marijuana than he did. [35] Constable Gruber provided some primary care to Jody Ray shortly after arriving at the residence at 3:23 a.m.

Although EMS personnel took over the care of Mr. Ray, Constable Gruber remained with Mr. Ray in the ambulance and at the Regina General Hospital until 7:00 a.m. when his shift ended. Constable Gruber testified that Jody Ray was very aware of his surroundings and was in a lot of pain. He was grunting, shaking and his actions were consistent with shock and having just been shot. He further testified that Mr. Ray’s conversation was coherent. [36] Exhibit D-1 is a one page medical record of Jody Ray obtained from the Regina General Hospital entitled “Patient Results”.

Counsel for the defence highlighted in green marker the ethanol level of Mr. Ray which states “47.6, Legal Driving Limit – 17.4 mmol/l”. [37] It is clear that during the evening of April 9th and the early morning hours of April 10, 2018 Jody Ray consumed some alcohol and ingested some marijuana. The central issue in this case is whether at the time of the shooting (shortly before 3:23 a.m.) and during the approximately 22 minutes which followed (3:45 a.m.) Jody Ray was drunk or intoxicated to such an extent that it “gives rise to a real possibility of error”.

Put another way, was Jody Ray’s perception distorted by his drunkenness or intoxication? [38] In this case I must examine the sobriety of Jody Ray prior to and at the time of the shooting and in the approximately 22 minutes that follow. Jody Ray testified that he was about to go to bed when he heard a knock at the front door of the residence. He went towards the front door where he encountered his mother Shannon. He testified that he thought the person at the door was one of his buddies, Darren. He told his mother not to answer the door. He then proceeded to open and answer the door.

Shannon Ray has a somewhat different recollection of this event. She also heard the knock at the front door. She thought it was Jake (Jacob Badger) who had said he was coming back to the residence. Shannon Ray testified that Jody pushed her back from the front door and told her not to answer it as he had a “bad feeling”. In this case it is clear that on either account of the time before the front door was opened, Jody Ray heard the knocking at the front door from his bedroom, just as his mother did. He then got up and physically went to the front door just as his mother did.

He communicated with his mother to the effect that she was not to answer the door, he would. I find that Jody Ray’s hearing, his ability to get up and walk to the front door in a timely fashion and his … ability to communicate with his mother are consistent with a functioning mind and body. His recollection of the events prior to opening the front door was not distorted. [39] Jody Ray’s recollection of the events after the front door is opened accords with his mother’s evidence. Both initially recall seeing a woman at the front door.

He then saw two guys come from the south side of the house up to the front door with a gun. His mother also recalled seeing two guys come up to the front door with a gun. [40] I also find it odd that Mr. Ray has a very precise memory of what alcohol he had to drink and marijuana he consumed prior to the shooting and yet is unable to say who shot him or recall anything after he went to his room and told his mother to call an ambulance.

His next memory is waking up in the hospital following a surgery. [ 41 ] I do not find the descriptions of Jody Ray’s sobriety by his family and girlfriend to be particularly helpful. Shannon Ray described Jody Ray as being “kind of drunk”. She also told the Emergency Services operator that Jody was alert following the shooting. Brandi Ray described Jody Ray as being “drunk that night” although it is unclear when she last saw her brother prior to the shooting. Shaylena Kay described her and Jody as being “drunk, but not crazy drunk”. [ 42 ] I found the evidence of Constable Gruber to be helpful.

He testified that Jody Ray was very aware of his surroundings and was in a lot of pain. He was grunting, shaking and his actions were consistent with shock and having just been shot. He further testified that Mr. Ray’s conversation was coherent.

[43] Exhibit D-1 reveals that at 4:04 a.m. on April 10, 2018 Jody Ray’s ethanol level was 47.6 mmol/l. The exhibit also states “LegalDriving Limit – 17.4 mmol/l”. Defence counsel invites me to conclude that Mr. Ray was over 2.5 times over the legal driving (bloodalcohol concentration) limit. The Crown takes the position that this exhibit merely shows Jody Ray had been drinking alcohol but is notevidence he was drunk and his powers of observation were impaired.

Given the evidence available to me at this time, I agree with theposition taken by the Crown. [44] I find that prior to the shooting Jody Ray had consumed alcohol and marijuana. Considering all the evidence before me I am unable toconclude that Jody Ray was drunk or intoxicated such that this would result in him making an error in his identification of the person whoshot him. (Emphasis in original) [41] It is obvious that the trial judge carefully and thoroughly examined Mr.

Ray’s level of intoxication and considered it to be aspecial circumstance that had to be evaluated to determine if it prevented the admission of the spontaneous utterances. Despite the smallmisstatement in the introductory portion of paragraph 3 of the Badger Voir Dire, the analysis conducted by the trial judge thoroughlycanvassed all of the evidence and meticulously examined its potential effect on the reliability of the utterances. After this rigorousassessment, the trial judge concluded he was satisfied that Mr. Ray’s level of intoxication did not create a situation where the evidencewas unreliable.

I can find no fault in that determination. [42] While I have analyzed the arguments regarding the circumstances in which the identification evidence arose and the issue ofintoxication separately, it is the combination of these factors, in conjunction with all of the circumstances, that must be examined todetermine if the trial judge erred in his assessment of threshold reliability regarding the utterances. In my view, the trial judge did not errin determining the utterances met the threshold of reliability required for admission.

He applied the correct test, carefully considered all ofthe circumstances and determined the utterances met the threshold reliability required for admission into evidence. There is no room forthis Court to interfere with that determination. This ground of appeal cannot be sustained. B. Alibi evidence [43] The trial judge said the following when specifically addressing the alibi evidence tendered by Mr.

Badger through his owntestimony: “Although corroboration is not required for alibi evidence to be accepted, the absence of supporting witness evidence, his ownimpairment from morphine, and the self-serving nature of this evidence undermine the strength of the alibi evidence. As a result, I do notbelieve Mr. Badger’s alibi” (Trial Decision at para 30). [44] Mr. Badger asserts that this passage reveals several errors in the trial judge’s assessment of the alibi evidence. First, he arguesthat the trial judge erred by labelling the alibi evidence as self-serving. Second, Mr.

Badger contends the trial judge drew animpermissible inference against him for not calling Ms. Stanley and Mr. Wapan as witnesses to corroborate his alibi. Last, he submits hisimpairment by morphine said nothing about his credibility or reliability and he questions why any weight should have been attached tothat factor. [45] In response, the Crown asserts that Mr. Badger failed to give notice of his alibi, which permitted the trial judge to draw anadverse inference when weighing the alibi evidence.

It further contends that the trial judge appropriately prefaced his comments about thefailure to call witnesses and fairly observed that the alibi evidence was weak without corroboration. The Crown submits the trial judgewas entitled to find that the evidence was self-serving when it was given from the stand for the first time. Overall, the Crown argues thatthe trial judge’s negative findings regarding Mr. Badger’s credibility resulted in the trial judge’s rejection of the alibi evidence. 1. The general nature of alibi evidence [46] An alibi does not have to be proven by an accused.

Even if the evidence of an alibi is disbelieved, it, in conjunction with all ofthe other evidence, merely needs to raise a reasonable doubt.

In R v Lizotte, (SCC), [1951] SCR 115 [Lizotte], CartwrightJ. stated that requiring an accused to prove an alibi would reverse the onus of the burden of proof; and, therefore, it need only raise areasonable doubt in the mind of the trier of fact (at 131): I do respectfully venture to suggest that in this case it would have been well to follow the usual practice of indicating to the jury the natureof the evidence put forward in support of the alibi and telling them that, even if they are not satisfied that the alibi has been proved, if theevidence in support of it raises in their minds a reasonable doubt of the appellant’s guilt it is their duty to acquit him. [47] In R v J.B.J., 2011 NSCA 16, 268 CCC (3d) 382 [J.B.J.], the Nova Scotia Court of Appeal reiterated the Supreme Court’s rulein Lizotte: [40] With respect, the trial judge appears to have misunderstood or, at the very least, failed to properly apply the law relating to alibievidence.

The appellant did not need to prove his alibi; the evidence of his alibi need only raise a reasonable doubt that he committed thecrime … . [41] Further, the alibi of an accused does not have to be corroborated by independent evidence in order to raise a defence … . See also R v Parrington (1985), (ON CA), 20 CCC (3d) 184 (Ont CA) at 186–187. [48] Further, in R v Borde, 2011 ONCA 534, 283 OAC 181, the Ontario Court of Appeal found the trial judge in that case did not errby not specifically instructing the jury that the alibi need only raise a reasonable doubt.

In holding so, Juriansz J.A. said the following: [23] The appellant complains that the trial judge did not explicitly link her instructions about reasonable doubt to the appellant’s alibidefence. The complaint has no merit. [24] The trial judge instructed the jury on the presumption of innocence, the burden of proof on the Crown and the concept of reasonable

doubt. She charged the jury in relation to W.D. on two occasions, once relating those instructions to the appellant’s testimony that he wasat his mother’s home, though she did not use the word “alibi”. The jury would have understood that the Crown has to disprove theappellant’s claim of alibi in the course of establishing his guilt beyond a reasonable doubt. [49] In

summary, an accused need not prove their alibi and the general principles regarding reasonable doubt, as found in W.(D.),apply to alibi evidence. 2. Requirement of notice of an alibi [50] Although advance notice is not a prerequisite to the admission of alibi evidence, the failure to disclose an alibi in advance oftrial may be considered by a trier of fact in determining the weight to be given to that evidence: R v Russel, (SCC),[1936] 4 DLR 744 (SCC) at 748, and R v Cleghorn, (SCC), [1995] 3 SCR 175 at para 4 [Cleghorn]. The governingprinciple of adequate notice is a rule borne of expediency.

The reason that an adverse inference may be drawn where an alibi is previouslyundisclosed is that an alibi can easily be fabricated at trial, depriving the Crown of adequate time and a fair opportunity to investigate itsveracity. [51] In his dissenting opinion in Cleghorn, Major J. provided the following articulation of the requirement for notice of an alibi: [24] … the appropriate requirement now is that the disclosure of the alibi is made sufficiently early to permit investigation by the policeand not that it is made at the earliest possible moment nor that it is made in a particular way. [25] It is no longer permissible to draw a negative inference against alibi evidence on the grounds that the accused did not disclose thatalibi immediately upon arrest, nor to draw an inference that an innocent person would have made such immediate disclosure. [52] From Cleghorn, it should be noted that “three pieces of information are necessary for sufficient disclosure of an alibi defence: astatement that the accused was not present at [the] location of the crime when it was committed, the whereabouts of the accused at thattime and the names of any witnesses to the alibi …” (at para 33).

The notice need not be formal. What matters is that the notice mustprovide the required information, with adequate detail, sufficiently in advance of a trial to permit the investigation of the alibi. [53] In the matter at hand, the Crown submits Mr. Badger failed to provide notice of his alibi, which permitted the trial judge todraw an adverse inference against him and give little or no weight to his testimony regarding his alibi. The problem with this submission isthat it does not find support in the record. While Mr.

Badger’s statement to the police and his testimony regarding what happened after heleft the House were the subject of heavy cross-examination that exposed inconsistencies and weaknesses, at no point during the trial,including during final submissions, did the Crown raise the issue of a failure by Mr. Badger to provide notice of his alibi. In closingsubmissions, it did not seek to have little or no weight attached to that evidence on the basis of an absence of notice. More importantly, thetrial judge did not rely on an absence of notice as justification for putting less weight on Mr.

Badger’s alibi evidence or for disbelieving it.Despite the prominence given to this issue during the Crown’s submissions to this Court, it is not material to Mr. Badger’s appeal underthis ground. 3. Failure to call corroborative witnesses [54] Mr. Badger asserts the trial judge erred by drawing an adverse inference against him for failing to call Ms. Stanley orMr. Wapan to corroborate his alibi. The Crown observes that the trial judge correctly noted that corroboration was not required for thealibi evidence and was entitled to find that the alibi evidence was weak and negatively affected Mr.

Badger’s credibility. [55] As a starting point, it is well established that it is an error of law to draw an adverse inference because an accused chose not tocall certain witnesses. In R v Gordon, 2016 SKCA 58, 476 Sask R 312, Caldwell J.A. summarized the underlying rationale for thisprinciple: [15] … Moreover, it is an error of law for a trial judge to draw an adverse inference from the procedural fact that a party has elected not tocall a certain witness: R v Maxie, 2014 SKCA 103 at paras 39–41, 316 CCC (3d) 396.

This follows directly from the general statement ofthe law in R v Jolivet, 2000 SCC 29 at para 39, [2000] 1 SCR 751, where the Supreme Court said: “It is clear … that it will rarely be‘appropriate’ for the trial judge to comment on the failure of the Crown to call a particular witness, and even more rare to do so withrespect to the defence”. [16] The law prohibits this kind of reasoning because counsel almost always has a good reason for not calling a particular witness.

Asobvious examples, there may be concerns about witness reliability, truthfulness or availability; but, as the Supreme Court noted in R vJolivet, there may be other good reason not to call a witness: [28] Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered byanother witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. [56] In R v Letourneau (1994), (BC CA), 87 CCC (3d) 481 (BCCA) at para 61, leave to appeal to SCC refused,[1995] 4 SCR vii, the British Columbia Court of Appeal reiterated that the accused’s testimony alone is sufficient to raise an alibi defenceand that the nature of such a defence is unchanged by a lack of corroborating witnesses. [57] Turning to the matter at hand, I note that the trial judge’s brief comments regarding the failure to call corroborating witnessesdo not reflect the whole of his examination of this issue.

During the course of final submissions by defence counsel, the followingexchange took place with the trial judge regarding the failure of Mr. Badger to call the two individuals whom he said he was with at thetime Mr. Ray was shot: THE COURT: I mean -- and I’ll -- I’ll ask this of both the Crown and defence: Of course, [Mr. Badger] testified that he said that he raninto -- when he left the Ray residence, he ran into Belinda Stanley and Charles Wapan in an alleyway. I believe it was just after he left theresidence.

MS. HAGEY [defence counsel]: Correct. THE COURT: And then they ended up at his residence … where they, I think, drank a cooler together. And then, of course, he says that he got a message from Jesse Ray about Jacob ( sic ) being shot, and then they left … and went back to the [House]. What do I make of those two witnesses not being called? MS. HAGEY: I think that it’s not part of the official record of the trial, that it’s not something that was said in evidence, so the Court can’t -- the accused -- the Court can’t -- obviously can’t make a negative inference and say, Those people weren’t called.

THE COURT: Right. MS. HAGEY: The Court cannot do that. Why was Jesse Ray not called; right? He could have also been a witness that corroborated things that, you know, that Mr. Badger said. There are many reasons why people aren’t called, and the Court cannot -- it would be -- it would be an error in law to make a negative inference or to consider it further, frankly. The Court doesn’t ask the Crown sometimes -- sometimes the Court raises that issue with the Crown, and the Crown always says: It’s the case, that’s how it’s called.

The Court just has the evidence before the Court, and that’s all the Court can consider. THE COURT: Okay. MS. HAGEY: I -- I anticipated that question, so I -- I -- I don’t have any case law on that point, but I think it’s a well-established principle. THE COURT: Thank you. [ 58 ] The Crown addressed the failure of the defence to call Ms. Stanley and Mr. Wapan during its final submissions: MR. BREKER [Crown counsel]: Your Honour, just on the alibi question, I would just draw the Court’s attention to a 2011 Ontario Court of Appeal decision called Borde , B-O-R-D-E. And I was just pulling it up.

It wasn’t actually something in the front of my mind, come to for today, but I was doing a little bit of research, and as we were -- MS. HAGEY: What is the citation? MR. BREKER: 2011 ONCA 534 . And at paragraphs 26, 27 and 28, the Court of Appeal looked at -- THE COURT: Twenty -- what were the paragraphs, 20 -- MR. BREKER: 26, 27 and 28.

And the trial judge gave -- so in this case, I actually -- and I don’t have a full grasp on the facts, but it reads … . … So I think my friend’s submission is not quite correct on this type of issue, and I would commend the Borne [ sic ] decision to -- to Your Honour when considering that issue, and I think it seems to be valid in law. So now I’ll go to my -- THE COURT: So I shouldn’t draw an inference of guilt for failure to call -- MR. BREKER: You can’t conclude guilt from it, but you can read into those reasons when assessing the evidence as a whole.

THE COURT: I’ll look at the case. [ 59 ] As can be seen from these two exchanges with counsel, the trial judge was well aware that he could not draw an inference of guilt from the failure to call Ms. Stanley or Mr. Wapan. [ 60 ] In a recent decision from this Court, R v Piapot , 2017 SKCA 69 , 355 CCC (3d) 239 [ Piapot ] , a similar set of circumstances to those at hand arose at trial where the accused’s prior statement to police and his testimony at trial differed. The trial judge had rejected the accused’s alibi evidence because he found him not to be credib le.

In his de cision, Ottenbreit J.A. observed the following regarding how an alibi may be undermined if corroboration is available but is not provided: [26] The trial judge also made no error in noting the failure to call other alibi witnesses. Mr. Piapot himself raised the point that uncalled evidence would corroborate his alibi. It is a fair conclusion that the trial judge determined that the alibi evidence of Mr. Piapot and Ms. Piapot, without further corroboration, was weak. The trial judge was entitled to determine that the absence of such evidence affected Mr. Piapot’s credibility on his alibi defence.

In short, I do not read the trial judge’s comments as indicating he inferred that Mr. Piapot was more likely to be guilty because of his failure to call certain evidence. He was simply not satisfied without further supporting evidence that the alibi defence was credible. [ 61 ] In my opinion, the reasoning from Piapot applies squarely to the trial judge’s reasons for disbelieving Mr. Badger’s alibi: the trial judge noted that corroboration is not required for alibi evidence immediately before he briefly mentioned the lack of supporting witnesses.

In recognizing that corroboration is not required, the trial judge was clearly aware that the lack of corroboration alone could not undermine Mr. Badger’s evidence, yet he still found Mr. Badger to not be credible for a number of other reasons, including his lack of consistency in providing his alibi evidence. This single comment, regarding a lack of supporting evidence, prefaced as it was by a correct statement of the law, does not amount to an error requiring appellate intervention. 4. Self-serving nature of alibi evidence

[62] Mr. Badger asserts the trial judge erred by rejecting his alibi evidence because it was self-serving. The Crown argues the trialjudge had every right to find the alibi evidence to be self-serving in light of the inconsistencies that arose regarding it during cross-examination. [63] Of course, all alibi evidence is self-serving in the sense that it provides an accused with an absolute defence against a criminalcharge if it raises a reasonable doubt.

It obviously cannot be summarily rejected on that basis alone: J.B.J. at paras 43–44. [64] The general problem with characterizing an accused’s exculpatory testimony as self-serving was recently discussed by theAlberta Court of Appeal in R v Titong, 2021 ABCA 75, in the following terms: [9] Characterizing an accused’s evidence as “self-serving” does not necessarily disclose an error of law, where, for example, use of thedescriptor is contextualized with an articulation of why the accused’s evidence is self-serving or why, overall, the accused is found not tobe credible: R v SMC, 2020 ABCA 19.

However, a simple denial is consistent with the presumption of innocence and to reject it as self-serving, without more, would undermine that presumption and the concerns underpinning the seminal decision of R v W(D), (SCC), [1991] 1 SCR 742. One may rhetorically ask what more could an innocent person say in such circumstances. As noted by thiscourt in R v CEK, 2020 ABCA 2 at para 24, a mere denial cannot be turned into a reason to disbelieve the accused.

To do so would alsoplace an unwarranted burden of proof on the appellant: R v Huot, 2016 ABCA 339, at para 12. (Emphasis in original) [65] In the matter at hand, while the trial judge used the term self-serving in his list of reasons when discussing the alibi evidence,this portion of the judgment cannot be read in isolation from the remainder of the trial judge’s reasons. Earlier in his judgment, the trialjudge had set out the test from W.(D.), explained the reasons why he did not find Mr. Badger to be credible and concluded that he did notbelieve Mr. Badger’s testimony. He did not, at that point, reject Mr.

Badger’s evidence on the basis that it was self-serving anduncorroborated. He rejected it because it was not credible and set out the reasons why he made that finding. The inconsistencies betweenMr. Badger’s initial statement to the police and the new story regarding Ms. Stanley and Mr. Wapan were substantial. His inconsistent andreluctant testimony regarding what he heard Mr. Ray say when he was being loaded into the ambulance, in the face of the testimony ofCst. Manz and Cst. Gruber, was also significant in the trial judge’s assessment of credibility.

The later categorization of his alibi testimonyas self-serving appears to have arisen from the fact that the details of his alibi had changed significantly between the time of the shootingand the trial. The trial judge’s comments on the self-serving nature of Mr. Badger’s alibi evidence does not reveal an error when thejudgment is read as a whole. 5. Impairment by morphine [66] Mr. Badger submits impairment cannot affect credibility, so the trial judge’s reference to this factor must be a comment on thereliability of his alibi evidence.

In his written and oral submissions, he did not press this issue, relying on the other issues as the mainreasons why the trial judge erred in rejecting his alibi evidence. While it is unclear to me why the trial judge referenced Mr. Badger’simpairment by morphine at the point in his reasons that he did, that lack of clarity does not translate into an error of law. Despite the trialjudge’s comment that Mr. Badger’s level of intoxication somewhat undermined the credibility of his alibi evidence, the trial judge did notmake the determination of credibility solely, or even substantially, based on intoxication.

He made his determination of credibility mainlyon the lack of consistency in Mr. Badger’s testimony, the spontaneous utterances and his assessment of the totality of the evidence. 6. Reasonable doubt raised by the alibi evidence [67] As noted above, Mr. Badger did not need to prove his alibi. The alibi merely needed to raise a reasonable doubt for the trialjudge. In this regard, it is informative to observe that the trial judge began his analysis by correctly identifying the principles from W.(D.),evaluated the credibility of Mr.

Badger’s testimony and, after evaluating the alibi evidence and rejecting it, continued to examine theevidence before he made a determination regarding identity. He did not stop after finding that he disbelieved the alibi testified to byMr. Badger. He correctly continued in his analysis and, only after evaluating the whole of the evidence, did he determine that he did nothave a reasonable doubt regarding the identity of the shooter. I can find no error in the trial judge’s treatment of the alibi evidence. C. Dangers of eyewitness identity evidence [68] Mr.

Badger argues that the trial judge failed to consider the dangers of eyewitness identification evidence in determining guiltat the conclusion of the trial proper after the spontaneous utterances had been admitted. He submits that the trial judge’s failure to self-instruct on the dangers and frailties of eyewitness identification evidence should result in a new trial. Mr. Badger contends that, in thecircumstances of this case – including Mr.

Ray’s inability to identify him during his in-court testimony, the absence of a description of theassailant in the utterances, the fact that the intruders were masked, the stressful situation in which the utterances were made, andMr. Ray’s level of intoxication – such a self-instruction was necessary. [69] The Crown asserts there was ample evidence that the parties were well known to each other and that Mr. Ray knew who hadshot him but, by the time of trial, was reluctant to identify the shooter. It submits a self-instruction on the record, of the nature asserted byMr.

Badger, was not necessary. [70] In Bigsky, Jackson J.A. set out a list of factors that an appellate court can consider when determining whether it shouldintervene when an appellant alleges that a trial judge failed to address the frailties of eyewitness evidence: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be takento have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent towhich the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown’s casedepends on the eyewitness’s testimony or, in other words, the presence or absence of other evidence that can be considered in determiningwhether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitnesshad previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend

to make the evidence unreliable, i.e., the witness’s evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [ 71 ] I observe that a failure to self-instruct on the record or in a trial judge’s written reasons does not, in and of itself, support a finding of error. As noted by Schwann J.A. in R v John , 2021 SKCA 83 , “a trial judge is presumed to know the law; a failure to self- instruct is therefore not indicative of error” (at para 65).

The error must reveal itself in the analysis or lack thereof. [ 72 ] In the matter at hand, the trial judge was aware that Mr. Badger was well known to Mr. Ray and had been seen earlier the same day at the House. Mr. Badger testified that Mr. Ray had referred to him by his nickname that same day. This familiarity removed a significant portion of the dangers associated with eyewitness identification evidence. [ 73 ] With regard to the effect of intoxication on the identification evidence, the trial judge dealt extensively with the evidence of Mr.

Ray’s level of intoxication in the Badger Voir Dire , which he adopted in the Trial Decision . He added the following additional analysis (repeated here for reference): [31] In this case I do not accept all of the evidence of Jody Ray, the victim of the crime. In particular I do not believe Jody Ray does not know who shot him. Overall, I found Jody Ray to be a reluctant witness who did not want to implicate the accused, Jacob Badger. [32] I find that significant weight should be given to the two spontaneous utterances made by Jody Ray on April 10, 2018.

I adopt my analysis of the sobriety of Jody Ray as set out in my previous decision on this matter Badger [ Voir Dire ] at paragraphs 31–44. I find that prior to the shooting, Jody Ray had certainly consumed some alcohol and marijuana. However, considering all of the evidence before me I am unable to conclude that at the time of the shooting and for 22 minutes which followed, that Jody Ray was so drunk and/or so impaired that this would result in him making an error in his identification of the person who shot him.

I am reminded that on two separate occasions in the presence of different people, Jody Ray indicated that Mr. Badger was the shooter. The first instance was recorded in a 911 call, shortly after he was shot at 3:23 a.m. In response to a simple question from his mother “Who, who shot you?”. His immediate and unequivocal response was “Fucking Jake from State Farm”, the nickname Jacob Badger was known by. The second instance occurred at 3:45 a.m., approximately 22 minutes after the shooting.

This time Jody Ray did not identify the shooter by name, rather from the gurney he was lying on, he looked directly at nearby Jacob Badger and said words (or words to the effect) “That’s the guy who shot me”. This statement was not prompted by any question from anyone. I find this evidence to be compelling. [ 74 ] It is not surprising that the trial judge’s reliability analysis focussed on Mr. Ray’s level of intoxication and its effect on the reliability of his identification evidence in the form of his spontaneous utterances.

This was the main argument raised by defence counsel at trial in an attempt to undermine the reliability of the out-of-court statements that had identified Mr. Badger as the assailant. The trial judge’s reasons responded to this argument by defence counsel. [ 75 ] Mr. Badger also argues that it is unclear how Mr. Ray came to know the identity of the masked shooter. Again, I note that Mr. Badger was not a stranger to Mr. Ray. As testified to by Mr. Badger, they had met each other seven or eight times before, including the very same day the offence was committed. Mr.

Badger had left the House only minutes before the shooting occurred. Mr. Ray struggled with the shooter for a period of time and even insulted the intruders during the incident. Additionally, as noted in the Trial Decision , Mr. Ray presented as a reluctant witness who did not want to implicate Mr. Badger. This reluctance explained Mr. Ray’s testimony where he was unable or unwilling to identify Mr. Badger during the trial, despite twice having reliably identified him on the night of the shooting. Buttressing the evidence from the spontaneous utterances was Mr.

Badger’s departure from the House with a promise to be back shortly, his proximity soon after the shooting occurred and his distressed state when the police encountered him. [ 76 ] I further note that the trial judge was fully aware of the possibility that Mr. Ray’s spontaneous utterances might been tainted by other factors that affected their reliability. Illustrative of this point is the following exchange that took place during the final submissions by defence counsel: MS. HAGEY: … Now, coupled with that, the Court must consider the context in which those statements were made, those utterances were made.

Shannon says that they were having a conversation about Jacob [Mr. Badger]. At one point in her evidence, she said that she’s pretty sure Jacob yelled -- heard Jodie [Mr. Ray] say: Where the hell was Jake? Why didn’t he come and help? So clearly when the utterances were made, when the first 9-1-1 call utterance was made, people were talking about Jacob. Constable Manz testified that people were showing him Mr. Badger’s Facebook profile. So if Mr. Ray, Jodie, is this intoxicated, he is hearing people talk about Jacob, and he then makes an utterance.

That utterance is being made -- that utterance has been tainted by other conversations which we can only imagine how someone who is intoxicated and in -- having just been shot would interpret those conversations, there’s -- there’s many issues there. These conversations continue. We have Shannon talking about the conversations. We have Constable Manz confirming that conversations were had in a very tiny house that could easily have been overheard by Jodie.

We don’t know if they were overheard because Jodie says he doesn’t remember anything, but that doesn’t mean he wasn’t hearing them in his subconscious and they weren’t having an impact on him. He’s then out on the stretcher, and he makes a further statement and utterance that was admitted. That utterance has been much so tainted by conversations in the house. And I can answer any questions on that point before I move on.

THE COURT: Well, answer this before I ask you this: How is the first 9-1-1 call, when Shannon Ray asked the question in the course of that, who shot him, and she says that it was her son, Jodie Ray, that answered, and he said, Jake from State Farm, how is that tainted? Like, I -- I don’t quite follow that. MS. HAGEY: In Shannon’s evidence, she made the one statement. She said she heard Jodie say: Where the hell was Jake? Why didn’t he come help? It’s not clear, at what point, during the evening he said that. So I suggest that there is a possibility that that statement could be tainted by -- by names.

We don’t know what order things happened in. The night was chaotic. There was certainly, after the shooting, there was a lot -- the house erupted into chaos. We heard that from everyone. Everyone was panicked. They were scared. We don’t really know the order. It was a possibility that that evidence is -- that that -- that that first statement is tainted. And given that possibility, coupled with the fact that I think it’s more important though for the Court to consider how intoxicated -- on his own admission, intoxicated Jodie was. That evidence is more important, but the Court must consider both.

And more importantly, Your Honour, when the Court considers the utterances, which is the only -- I would say the -- that’s the crux of theCrown’s case are those utterances. THE COURT: Yes, it is. [77] Having rejected Mr. Badger’s evidence as not being credible, the trial judge determined the Crown had proven the identity ofthe shooter beyond a reasonable doubt. In doing so, he accepted that the spontaneous utterances had reliably identified Mr. Badger as theshooter.

In my view, the reasoning of the trial judge does not reveal any concerns that he ignored the inherent or situation-specific frailtiesof the identification evidence that came in the form of the spontaneous utterances or failed to properly evaluate the reliability of thespontaneous utterances. I cannot give effect to this ground of appeal. VI. CONCLUSION [78] I would dismiss the appeal. “Tholl J.A.” Tholl J.A.I concur. “Caldwell J.A.” Caldwell J.A. KALMAKOFF J.A. (DISSENTING) [79] I have had the benefit of reading the draft reasons of my colleague, Tholl J.A.

While I agree with his disposition of the groundsof appeal relating to the admission into evidence of Mr. Ray’s spontaneous utterances and the trial judge’s treatment of the alibi evidence,we

part company on the question of whether the trial judge erred in his assessment of the identification evidence. In my respectful view,the trial judge failed to conduct the analysis of the identification evidence that the law requires. This error infected the verdict and,because of that, the conviction cannot stand. A new trial is required. [80] The critical issue at trial was whether the Crown had proven that Mr. Badger was one of the individuals who participated in theshooting of Mr. Ray. When Mr. Ray testified at trial, he said he did not know who shot him, because the men who came to his door weremasked.

He could not see any part of their faces, not even their eyes. He also testified that nothing was said by either of the two menbefore the gun was fired and, although he had seen the face of the woman who accompanied them, he did not know who she was. [81] The trial judge, however, did not accept that portion of Mr. Ray’s evidence, because he found Mr. Ray to be “a reluctantwitness who did not want to implicate the accused” (R v Badger, 2019 SKPC 65, at para 31 [Trial Decision]). The trial judge went on tofind that “significant weight” should attach to the spontaneous utterances Mr.

Ray had made following the shooting and that, on the basisof those utterances and Mr. Badger’s “unique opportunity” to have taken

part in the offence, determined that identity had been provenbeyond a reasonable doubt (Trial Decision at paras 32–35). [82] This case was all about identity and the only evidence in that respect came in the form of Mr. Ray’s out-of-court statementsidentifying Mr. Badger as one of the masked men who came to his door.

As is well-canvassed in the jurisprudence, eyewitnessidentification testimony is notoriously unreliable and, as such, must be treated with considerable caution by a trier of fact (see, forexample: R v Bigsky, 2006 SKCA 145, [2007] 4 WWR 99 [Bigsky]; R v Nikolovski, (SCC), [1996] 3 SCR 1197 atpara 23; R v Hibbert, 2002 SCC 39 at paras 50–53, [2002] 2 SCR 445; R v Kennedy, 2015 SKCA 32 at para 34, 457 Sask R 182; R vGoran, 2008 ONCA 195 at para 19, 234 OAC 283; R v Jack, 2013 ONCA 80 at para 13, 302 OAC 137 [Jack]; and R v Biddle, 2018ONCA 520 at paras 31–32, 363 CCC (3d) 118 [Biddle]). [83] In R v McCracken, 2016 ONCA 228, 348 OAC 267 [McCracken], Tulloch J.A. described the concerns surrounding eyewitnessidentification evidence in this way: [25] Even at the best of times, identification evidence is subject to well-known and inherent frailties: R. v.

Olliffe, 2015 ONCA 242, 322C.C.C. (3d) 501, at paras. 36–40; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at paras. 19–20 and 31–33. Honest and convincing, butmistaken, eyewitness identification, has been the source of wrongful convictions because it appears deceptively reliable. Particularvigilance is therefore required in relation to this type of evidence. Although familiarity may enhance the reliability of evidence, the samecautions and concerns apply to recognition evidence: R. v. Benson, 2015 ONCA 827, [2015] O.J.

No. 6348, at para. 25. [84] In his reasons, my colleague cited the instructive comments of Jackson J.A. in Bigsky, regarding the approach to be employedby an appellate court when considering whether a trial judge has adequately addressed the frailties of eyewitness evidence. I repeat thosecomments here for emphasis: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be takento have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent towhich the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown’s casedepends on the eyew

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