R v Androsoff, 2023 SKCA 42

Court of Appeal for Saskatchewan Docket: CACR3533 Citation: R v Androsoff , 2023 SKCA 42 Date: 2023-03-29 Between: His Majesty the King Appellant And Nigel Androsoff Respondent Before: Caldwell, Leurer and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Leurer The Honourable Madam Justice McCreary On appeal from: Provincial Court, Regina Appeal heard: January 24, 2023 Counsel: Erin M. Bartsch for the Appellant Andrew L. Hitchcock for the Respondent Caldwell J.A. I.

Overview [ 1 ] The Crown appeals against the acquittal of Nigel Androsoff on the charge that he did “wound [the complainant] thereby committing an aggravated assault, contrary to s. 268(1) of the Criminal Code ” (Information 991159379). Under that section, the offence of aggravated assault is described in these terms: “Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant”. In this case, the count had been particularised to allege a wounding. [ 2 ] As the trial judge was satisfied beyond a reasonable doubt that Mr.

Androsoff had assaulted the complainant but not that he had caused a wound, she convicted Mr. Androsoff of common assault, contrary to s. 266 of the Criminal Code ( R v Androsoff (8 February 2023) (Sask Prov Ct). [ Trial Decision ]). [ 3 ] The complainant, who was Mr. Androsoff’s intimate partner, called 911 and reported that he had assaulted her. She later told the police there had been two assaults. The Crown charged Mr. Androsoff with one count of aggravated assault under Information 991159379 and with two counts of assault with a weapon and one count of simple assault under Information 991160869.

Sometime later, the complainant died for reasons unrelated to these events. The trial on both Informations occurred after her death. In it, a Crown witness said she had seen the complainant shortly after she had been assaulted and had photographed some of her injuries (Exhibit P-2). She testified that the complainant’s face appeared to be “deformed”. [ 4 ] The trial judge was satisfied that Mr. Androsoff had unlawfully caused the injuries shown in Exhibit P-2. There is no dispute about whether Mr.

Androsoff assaulted the complainant; his conviction for common assault under s. 266 of the Criminal Code stands unchallenged. In appealing against the acquittal on the aggravated assault count, the Crown asserts that the Exhibit P-2 photograph, as well as others taken later by the police, proved beyond a reasonable doubt that the complainant had suffered one or more wounds within the meaning of s. 268(1) of the Criminal Code , thereby establishing Mr. Androsoff’s guilt on that offence as it was described in Information 991159379.

In the alternative, even if it had not proven the wounding element, the Crown argues that Mr. Androsoff was nonetheless properly convictable of the lesser included offence of assault causing bodily harm (s. 267(b)). [ 5 ] The Crown posits that the trial judge was erroneously led to enter an acquittal for aggravated assault because she failed to consider the totality of the evidence, misapprehended evidence, and failed to apply the law to the facts.

The Crown also alleges that the trial judge erred in law by ruling out a conviction for assault causing bodily harm because she held that it was not an included offence. Lastly, it asserts that the trial judge erred in law by improperly excluding probative evidence that she found was necessary and substantively reliable under the principled exception to the hearsay rule (see R v Bradshaw , 2017 SCC 35 , [2017] 1 SCR 865). [ 6 ] Appellate intervention in an acquittal is only permitted where a reasonable doubt is tainted by a legal error ( R v J.M.H. , 2011 SCC 45 at para 39 , [2011] 3 SCR 197).

Having considered the grounds of appeal, I conclude that the Crown has failed to establish that errors of law led to Mr. Androsoff’s acquittal on the offence of aggravated assault under s. 268(1) of the Criminal Code . However, I am persuaded that, through legal error, the trial judge failed to convict Mr. Androsoff of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . I would, therefore, set aside the conviction for common assault, enter a conviction on the offence under s. 267 (b), and remit this matter to the Provincial Court for sentencing. II. background A. 911 call and video-recorded statement [ 7 ] Mr. Androsoff was arrested on April 27, 2021, after the complainant called 911 to report that he had “beat the tar out of [her]”

the day before. [ 8 ] In a May 7, 2021, video-recorded statement, the complainant told the police that Mr. Androsoff had assaulted her on April 23, 2021, by throwing a jar at her. She said the jar hit her hand and broke on the floor. The officers who attended to her told Mr. Androsoff to find somewhere else to stay, but the complainant allowed him back into her home after they left. The complainant said another assault occurred shortly after that. She thought it had happened on April 24, 2021, but she also said that it had happened on the day before the police arrested Mr. Androsoff, i.e., on April 26, 2021.

The complainant told the police that Mr. Androsoff had become violent during an argument and had punched both of her eyes and had used a mug to strike her in the head. He then smashed the mug and used the broken glass to cut her cheek. She stated that he kicked her, causing bruises to her legs and chest. She said she called her mother and told her what had happened, and her mother had called one of the complainant’s friends to come over and help her.

She said she called the police the following day once she saw how badly she looked. [ 9 ] Other than the 911 call and the video-recorded statement, there is little evidence about these assaults because the complainant died a few months later. Mr. Androsoff did not testify and called no evidence in his defence. B. The evidence of the complainant’s friend [ 10 ] The principal Crown witness at trial was the complainant’s friend who, as noted, had come over to help after the second assault. She testified that she went to the complainant’s home in late April of 2021 and observed that she had been beaten.

This witness testified that the complainant’s face was “really deformed” and that “she had marks on her face and a big goose egg on her forehead”. She said the complainant told her that Mr. Androsoff had beaten her the day before. The witness stated that she confronted Mr. Androsoff, asking why he had assaulted the complainant, in response to which he showed her some scratches on his hands that he said the complainant had caused. [ 11 ] In specific terms, the witness testified as follows about the assaults and the complainant’s injuries: Q Okay. And so I want to take you then to the end of April of this year.

I understand that you were involved or had some knowledge with respect to an incident that happened regarding [the complainant] and [Mr. Androsoff]? A Yes. Q Tell us what you – what you saw please? A So I walked into their place and they were sitting together and he was under the blanket and she was all deformed in the face. And I was kind of taken back. THE COURT: I’m sorry, I’m really having trouble hearing you. THE WITNESS: Okay. THE COURT: If you can go back to the start of this and try to speak – THE WITNESS: Okay. THE COURT: -- just a bit louder.

A I walk into their place – THE COURT: You walked into – you walked into their place was the last I heard. A I walk into their place and I saw [the complainant] and him sitting there on the couch together. He was under the blanket. And her face was really deformed. She had marks on her face and a big goose egg on her forehead. And I kind of – I had asked, What happened, what’s going on? And she kind of told me what happened in a simple form. And then I had some communication with [Mr. Androsoff] and I asked him, Why would you do this, what’s going on?

And he had shown me some scratches on his hands from – that was from her and he had mentioned that she had scratched me so it was – pretty much okay to do what I did. If that makes a bit of sense. Q MS. ANDREWS: Sure. A Well, she scratched me first. Q Okay. So I appreciate that you – and we talked about not talking about the hearsay aspect of things and so I appreciate that. A Okay. Q So is it fair to say that from your conversations with [the complainant] and [Mr. Androsoff] you understood that an assault or an incident had taken place with respect to – A Yes. Q -- [Mr. Androsoff] and [the complainant]? A Yes.

Q Okay. And so what – in terms of what [Mr. Androsoff] said to you, how – how did that –how did that conversation start? Did you ask him questions or did he just volunteer that information?

A I know I was asking him questions of what happened. He kind of didn’t say much but he showed me the scratch, Well, she scratched me first. I said, This gives you no reason to do what you just did. He started getting angry with me. He started looking at me and smiling at me viciously. So I had opened the door because my (INDISCERNIBLE) was there – just to show him hey, somebody else is here with me. I took her up and aside to the bathroom and I tried sitting her up but she was hurt so bad to the point where I couldn’t even touch her. So I – THE COURT: I’m sorry, what was that last part?

A She – she was hurt to the point where I couldn’t even touch her or help her clean herself up. And so we just sat in the bathroom for a few minutes. I had asked her if she wanted to go the hospital, she had said no. And yeah. Q MS. ANDREWS: And so what happened after that? A Came out of the bathroom and she sat back down on – on the couch. And I had pleaded with her to come to the hospital, come get some help. You don’t need to be with him right now. And she kept saying no. And I said, Well, I’m going to call the cops then. Either you come or we go to the hospital. [Mr. Androsoff] had said No.

Whatever that meant. And – and she just didn’t want to come, she wanted to stay. So after about 30 minutes of being there with her I had finally left and said, Just keep in touch then. Q Do you know roughly when this – this conversation happened like when you attended over to [the complainant] and [Mr. Androsoff’s] place? A I don’t recall. Q Okay. Do you know roughly how long after the incident had happened? A It was the day after. Q Okay. So if we are suggesting that the incident happened on the 23 rd , that would be April 24 th ? A Yes. Yes. Q And that sounds about right in terms of your memory? A Yes. Q Okay.

And so – did I understand that you didn’t actually phone the police on that date? A No. Q Okay. And [the complainant] didn’t go with you to the hospital on that date? A No. Q Okay. When you were talking to [Mr. Androsoff] and he showed you the scratch, describe the scratch for me? A It had bled. It was – there was a bit of a scratch mark. You could tell it – it bled. Q Okay. Was there broken skin? A No. Q Okay. What – do you recall the exact words that he used in responding about the incident? A All I remember was him saying was, She scratched me first.

And I had said, This gives you no reason to do what you had done. Q And so when you’re saying, No reason what you had done, did you confront him about specific details of the incident? A No. Q Okay. A Because I – I saw her face and – and she was very simple on letting out information. Q Okay. THE COURT: What was that last part? A She was very simple on letting out information. Q MS.

ANDREWS: So perhaps a better question is – to be a bit more direct is, when you asked him about the incident or confronted him about it, did you specifically – did you use the phrase, You had no reason to do what you had done, or did you just say, Well, you had no reason to do whatever you understood had happened? A You had no reason to do what – that gives you no reason to do what you did to her. Q Okay. And what specifically your understanding of this – like what are you meaning by, what he had done to her?

A Well, when I went there she was upset and she said, He had done this. He. So that gave me that indication okay, something bad happened here. … Q MS. ANDREWS: You mentioned that you noted some visible injuries on [the complainant]? A Yes. Q And did you take any photos or document those injuries in any way? A I did take a photo, yes. Q Okay. I’m going to show you a photograph. Do you recognize that photo? A Yes. Q Okay. Who do we see in the photo? A [The complainant]. Q And those appear to be the injuries or the marks that you noted on her on the 24 th ? A Yes. Q Okay. MS.

ANDREWS: Can I have that entered as P-2, please, Your Honour. THE COURT: P-2. Thank you. EXHIBIT P-2 – Photograph Number 228 Q MS. ANDREWS: Now, were you aware of – or had you observed other injuries with respect to [the complainant] prior to this occasion? A She had some bruising as well. Q Okay. Do you recall where that – sorry. A On a different incident. On her breast area. Q Okay. Do you recall when you would have observed or when you observed the injuries? A I don’t recall. Q Okay. Roughly how long before this incident? A I don’t recall. Q Okay. Fair enough.

Can you – this might sound like a silly question but can you describe the injury of what you observed on [the complainant]? A I know there was a big bruising on her boob. Q Okay. A On her breast. [ 12 ] Although the witness was not clear about the date on which she had taken the photograph admitted as Exhibit P-2, there seems to be no dispute that it was after Mr. Androsoff had assaulted the complainant the second time and before he was arrested on April 27, 2021. In the photograph, the complainant’s face is swollen. She has two black eyes and abrasions on her right cheek and chin.

There appears to be another injury on her upper right forehead, but it is not well illuminated. C. Exhibits P-3, P-4 and P-5 – police photographs of the complainant [ 13 ] Photographs taken by the police on April 27 (Exhibit P-3), May 5 (Exhibit P-4) and May 7, 2021 (Exhibit P-5), show a large lump and laceration on the complainant’s upper right forehead, among other injuries.

The photographs also show that the complainant had lacerations just below her right eye, one of which appears to be deep and gaping in the May 5 photographs. [ 14 ] A police officer who attended to the complainant after her 911 call took the April 27 photographs (Exhibit P-3). She testified that she had seen bruises on the complainant’s face and body.

In the photographs, she recorded what she testified was a “fresh wound” under the complainant’s right eye, a “large lump and bruising on the right side of her forehead”, a “black, dark bruised right eye with paler bruising on her cheek”, “dark purple, black bruising on her left eye, a very bloodshot or I guess the arteries are bloody”. This witness confirmed that the photographs in Exhibit P-3 showed bruising to the complainant’s “upper breast area” and bruising and red markings on her shoulders, knees and arms (including “all the way down to the wrist” on her left forearm).

Other photographs showed bruising to the

complainant’s left ear, which was “extremely bruised on the inside” with an “abrasion on the left side of her face”. The witness said that the complainant appeared to be in significant pain but would not go to the hospital. [ 15 ] A second police officer also testified. She said she met with the complainant on May 5, 2021, after a report of an assault. She testified as follows about the injuries she saw on the complainant, which she had photographed (Exhibit P-4): Q MS. ANDREWS: Okay. And so what happened when you arrived at that residence?

A So it was a – I believe [the complainant] was renting the basement of the suite, so we attended to the side door, where she answered the door and took us down to her basement suite. Immediately I observed that she was covered in black and blue bruises all over her body, you could see down her robe even. Her chest, her ears, her face were covered in black and – black and blue mark – markings. And so I took the lead of kind of getting information from [the complainant], that’s what she felt most comfortable with, every other member that attended was a male.

So reluctantly, eventually [the complainant] did give me a statement in regards to that, so my -- my duty was the statement. I also took photos with my sergeant’s work cell phone, which is how we take photos but [the complainant] felt more comfortable with a female taking them. [ 16 ] This officer advised the complainant to go to the hospital due to her injuries and arranged for her to be transported there by ambulance. The officer told the complainant that she would follow up with her a day or so later.

At that later meeting on May 7, 2021, the officer took several more photographs of the complainant (Exhibit P-5), which show that the injury to her cheek had scabbed over as had a laceration to her forehead. D. Transcribed telephone calls from Mr. Androsoff to the complainant [ 17 ] After his arrest on April 27, 2021, Mr. Androsoff was remanded to the Regina Correctional Centre and prohibited by court order from contacting the complainant. He flouted the no-contact order by repeatedly calling her from the remand unit.

These calls were recorded and the Crown tendered transcripts of them into evidence. [ 18 ] The first call, on April 30, 2021, was brief. In the second call, on May 1, 2021, the complainant told Mr. Androsoff that a man named “Vern” had beaten her up and that the police had spoken to her about that the day before. Mr. Androsoff told her that, if she did not “show up in court”, then he would get out of jail. He then asked if she was going to testify against him, and she replied that she loved him. On May 3, 2021, Mr. Androsoff called the complainant a third time.

In that conversation, she told him that her bruising and swelling was getting worse and that it hurt to move. He asked her if she was going to testify against him and she told him she would not. [ 19 ] Mr. Androsoff called the complainant a few times on May 4, 2021. In one call, the complainant told him that she could not walk because her head would not stop bleeding and she said, “you kind of caused that one”. Mr. Androsoff responded by saying, “I know, I’m sorry baby”.

The complainant said that blood was coming out of the top of her head and that he had “caused a lot of shit to [her] skull”, to which he replied, “I know” and asked if the police had photographed her injuries. In a second call on May 4, Mr. Androsoff and the complainant discussed the laceration to her right cheek, during which he advised her that the “cut” made what he had done an “aggravated assault”. The complainant also told him that he had smashed her eardrum. [ 20 ] In a May 5, 2021, call from Mr. Androsoff, the complainant told him that her face was “not looking good” and that she was still bleeding.

He told her not to go to court and not to testify against him, and she said she would not. He said that he would never hit her again. [ 21 ] In a call on May 6, 2021, the complainant told Mr. Androsoff that she had assaulted a nurse the day before at hospital and that she had smoked a lot of crack cocaine the night before. Mr. Androsoff told her to recant her statement to the police and suggested that she should say that she did not remember anything about what had happened. The complainant told him she had already told the police that all the injuries were self-inflicted.

She then said, “even though you did what you did, you didn’t know what you were doing at the time”. To this statement, Mr. Androsoff replied, “I know”. [ 22 ] On May 7, 2021, Mr. Androsoff called the complainant while two police officers were following up with her. In their presence, the complainant told Mr. Androsoff that she was in an appointment that related to him beating her up. When he asked her what she was saying about him, she said she had not said anything yet. He then asked her not to “hurt” him anymore. E.

Voir dire on the admissibility of the complainant’s out-of-court statements and the transcribed telephone conversations [ 23 ] Given the complainant’s death, the Crown tendered transcripts of her 911 call and video-recorded statement for admission into evidence pursuant to the principled exception to the hearsay rule. It called as witnesses the police officers who had interacted with the complainant as well as the friend who had first photographed her injuries. The Crown also sought to rely on the transcripts of Mr.

Androsoff’s telephone calls to the complainant as containing his admissions to assaulting her and causing her wounds. [ 24 ] As part of the voir dire , the trial judge considered whether the transcripts of Mr. Androsoff’s telephone calls to the complainant were admissions, ruling that they were. When considering their content in that analysis, the trial judge said: There are several locations during the various phone calls where [the complainant] refers to injuries that Mr.

Androsoff caused to which he responded either, “know,” or, “Okay,” which could be taken as an admission, but which are somewhat equivocal and might also simply reflect that he does not want to get into an argument with [the complainant], given his circumstances. Examples of this can be found on pages 1, 6, 14, and 23 of the transcript. For example, on page 1, during the call on May 7 th when she is giving her statement, she says to Ms. – Mr. Androsoff that he – she is in an

appointment, “having to do with you beating me”, to which he replied, “Okay.” On page 6, during a call on May 6 th , [the complainant] tells Mr. Androsoff that she has said she caused the bruising to herself and that she knows Mr. Androsoff didn’t know what he was doing and didn’t want to attack her that way.

He replies, “I know.” On page 14, she says, “My wrists are killing me.” And he says, “Yeah.” On page 23, [the complainant] says she can’t hear well because her eardrum is broken because he smashed it, and he replies, “Oh, really?” There are occasions where Mr. – [the complainant] references an injury she says Mr. Androsoff caused to which he replies with a less equivocal response. These appear on pages 8 and 9 of the transcript. On page 8, [the complainant] tells Mr. Androsoff that she will have to have surgery for broken ribs. Mr. Androsoff says, “Oh, shit.

Sorry.” On page 9, Ms. – [the complainant] says she can’t walk because her head is bleeding and that he “kind of caused that one”. To this, Mr. Androsoff replied, “I know. I’m sorry, baby.” These have more probative value, in my view. However, the only instance where a statement is made by Mr. Androsoff as opposed to him not disputing an assertion made by [the complainant] is on page 18 of the transcript during the conversation on May 5 th . [The complainant] says: (as read) There’s no – there’s no – there’s no guy who is ever going to compare to you and love me like you do.

And I don’t care how many times you beat me, I fucking love you to death, okay? And I don’t care what anybody says about you. You are my everything and you have my heart. To this, Mr. Androsoff replies, “Yeah. I’m never hitting you again except with my cock.” They both laughed after he said that. This appears to be an admission by Mr.

Androsoff that he has hit [the complainant] at some time, but there is nothing here to link it to the specific incident that is alleged to given rise to the charges he faces. [ 25 ] Following some discussion after her rulings in the voir dire , the trial judge confirmed that “Part of the voir dire evidence included the telephone conversations, which has not been excluded”.

With that ruling clarified and given an agreement between the parties, the trial judge said, “So the evidence of – concerning the telephone conversations that have been admitted into evidence and are reflected in the transcript will be applied to the trial”. [ 26 ] As to the 911 call and the video-recorded statement, at the conclusion of the admissibility voir dire , the trial judge said she was satisfied that the Crown had proven the necessity and reliability aspects of the principled exception to hearsay.

As to reliability, the trial judge found that those two statements met the test for substantive reliability because Mr. Androsoff’s admission to the complainant’s friend corroborated the truthfulness of the complainant’s factual assertion that he had “assaulted [her], causing significant bruising as observed by [the friend]”. The trial judge also found that the complainant’s statement in the 911 call that Mr.

Androsoff had “beat the tar out of me” met the threshold test for admission because it had also been confirmed by the complainant’s statement to her friend. [ 27 ] Nonetheless, the trial judge exercised her residual discretion to exclude the statements from evidence, explaining that the potential for trial prejudice outweighed their probative value and, therefore, to do otherwise would result in an unfair trial because Mr. Androsoff could not cross-examine the complainant. F.

The verdicts [ 28 ] With the complainant’s out-of-court statements excluded from evidence, the trial judge observed that only the friend’s testimony and Mr. Androsoff’s telephone-call admissions supported the assault charges. She acknowledged that the parties had agreed to a blended trial where this evidence, although it was adduced in a voir dire , would be applied in the trial on the assault counts under the two Informations. [ 29 ] As the Crown had elected to proceed first on Information 991160869, the trial judge began her reasons by dealing with the two counts of assault with a weapon.

Since none of the friend’s testimony or the telephone-call evidence referred to the use of a weapon, the trial judge found Mr. Androsoff not guilty on those counts. The Crown has not appealed against these acquittals. [ 30 ] Turning to the aggravated assault count under Information 991159379, the trial judge rejected the Crown’s argument that assault causing bodily harm is an included offence of aggravated assault by wounding because, in this case, that allegation was “based on bruising”. The trial judge said that, even though the complainant had referred to wounds in the telephone calls with Mr.

Androsoff, she did not believe his admissions had sufficient weight to prove beyond a reasonable doubt that he had caused those wounds: While there are some references in the phone calls to what could be considered “wounds” I do not believe the responses of the accused to the comments made by the complainant carries sufficient weight to establish that he caused wounds to her beyond a reasonable doubt.

And as I indicated in my earlier decision I do not believe there is sufficient evidence contained in the phone calls to amount to admissions of specific assaultive behaviour as -- as alleged in the Informations by the accused towards [the complainant], although there is at least one admission of previous assaultive behaviour towards her. [ 31 ] Immediately following these remarks, the trial judge turned to the photographic evidence of the complainant’s injuries, stating:

Also, although the photograph taken by [the complainant’s friend] the day after the alleged offence shows a cut to the forehead, there is no evidence of when or how that particular injury took place. And as it is possible the events began as a consensual fight or one which [the complainant] actually started, I cannot be sure that injury was caused intentionally and without cause or defence. So accordingly, I also acquit Mr.

Androsoff on count 1 on Information ending 9379. [ 32 ] Having thereby ruled out convictions for assault with a weapon, assault causing bodily harm and aggravated assault, the trial judge turned to address the remaining count of common assault on Information 991160869. She began by setting out her findings of fact, which she had not done previously.

She found that the testimony of the complainant’s friend was credible and reliable and that the photograph she had taken (Exhibit P-2) showed “serious bruising to both eyes, significant bruising to the rest of her face and an injury to [the complainant’s] forehead which was cut and swollen”. The trial judge then said: However, despite that I am satisfied that [the complainant’s friend] did state clearly that [the complainant] said the accused had caused the injuries which [the friend] was able to observe.

I believe her that the evidence that the accused’s reply was “she started it” which in my view is an admission that he did cause those injuries but that he felt he was justified because [the complainant] began the confrontation by scratching him. [The complainant’s friend] told the accused on hearing that that this was no reason for him to do what he did. As far as I’m concerned she was exactly right. Even accepting that [the complainant] was the first to use violence such that it may have begun as a consensual fight with her scratching Mr.

Androsoff, there is no possible way that the amount of force which would have to have been used to produce the severe bruising which [the complainant’s friend] observed can be considered in any way reasonable or proportionate . [The complainant] had two black eyes and was severely injured according to [her friend’s] evidence. This is far beyond what could be considered anything but would have been or could have in law been consented to and far beyond anything that could constitute a defence of self-defence within the meaning of

Section 34 of the Criminal Code since it in no way could be considered reasonable in the circumstances. I have given Mr. Androsoff the benefit of the doubt given the lack of clarity about how the events began by acquitting him with the charge of aggravated assault despite the fact that there is a cut to [the complainant’s] forehead as shown in the photograph taken by [the complainant’s friend] . I have no doubt about whether the accused is guilty of simple assault and so I find him of guilty on count 1 on Information ending 0869.

I should perhaps explain for the benefit of the Crown that I am not considering the photographs taken by the police officers later in time to support the charge of wounding or a cut that might be bodily harm. Because of the statements made by [the complainant] to the accused in the phone call that someone else had beaten her up.

The only injuries that I am confident were caused by the accused are those observed by [the complainant’s friend] the day after the incident and I am basing the conviction and I have found the facts of the offence solely on her evidence since that is the evidence I consider to be both credible and reliable regarding what happened between the accused and [the complainant] the day before [the friend] saw [the complainant] and the accused at the apartment . (Emphasis added) III. issues [ 33 ] In asking this Court to set aside the acquittal on the charge of aggravated assault, the Crown raises four issues in its factum for our consideration: (

a) Did the trial judge misapprehend the evidence and fail to consider the evidence in its totality? (

b) Did the trial judge err by failing to apply the law to the facts as she found them to be? (

c) Did the trial judge err by holding that assault causing bodily harm is not an included offence of aggravated assault by wounding? (

d) Did the trial judge err by excluding the complainant's video-recorded statement to police from evidence? IV. analysis [ 34 ] The Crown appeals only against the acquittal of Mr. Androsoff on the particularised charge of aggravated assault by wounding. Having worked through the issues raised by the Crown, I find that they are interrelated in the sense that the establishment of an error often builds in some fashion on the establishment of other alleged errors.

For that reason, I have reordered the grounds to start the analysis of the Crown’s appeal with the question of whether assault causing bodily harm is an included offence of aggravated assault by wounding. Answering that question first assists with an understanding of the issues under the other grounds of appeal. A. Is assault causing bodily harm an included offence of aggravated assault by wounding? [ 35 ] In his factum, Mr. Androsoff concedes that “it appears that the trial Judge erred in holding that assault causing bodily harm was not available to her as a verdict”.

I accept this concession as correct for the following reasons. [ 36 ] It is appropriate to begin by reviewing when a court has the power under the Criminal Code to convict an accused of an included offence:

662(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it oras charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, theaccused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included. [37] As stated in s. 662(1), there are two ways in which an offence may be an included offence: (

a) by reason of the description ofanother offence “in the enactment creating it” or (

b) by the way another offence is “charged in the count” (see R v G.R., 2005 SCC 45 atparas 25–33, [2005] 2 SCR 371). Although not at issue in this appeal, an offence may also be expressly included by statute (ss. 662(2) –(6)). [38] Under the Criminal Code, all assault offences—regardless of their nature—have in common one or more of the followingelements: 265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeupon reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party orcausing bodily harm and aggravated sexual assault. [39] There are three tiers of non-sexual assault offences under the Criminal Code, namely, assault (s. 266), assault with a weapon, orcausing bodily harm, or by choking, suffocating or strangling (s. 267), and aggravated assault (s. 268(1)) (see R v Pootlass, 2019 BCCA96 at paras 81–113, 373 CCC (3d) 433). [40] A conviction for the offence of assault under s. 266 (often called common assault, simple assault or assault simpliciter) requiresproof beyond a reasonable doubt of one of the three elements of an assault listed under s. 265(1) of the Criminal Code.

The offence ofassault with a weapon occurs when a person, in committing an assault, “carries, uses or threatens to use a weapon or an imitation thereof”(s. 267(a)). An assault causing bodily harm happens when a person, in committing an assault, “causes bodily harm to the complainant” (s.267(b)). The offence described in s. 267(

c) is distinguished from common assault when a person “chokes, suffocates or strangles thecomplainant”. Aggravated assault is distinguished from simple assault when the person committing an assault “wounds, maims, disfiguresor endangers the life of the complainant” (s. 268(1)). [41] The words wounds, maims and disfigures and the term endangers the life of under s. 268(1) are not defined in the CriminalCode. However, bodily harm in s. 267(

b) is defined as meaning “any hurt or injury to a person that interferes with the health or comfort ofthe person and that is more than merely transient or trifling in nature” (Criminal Code, s. 2). As the Crown observes, this definition sets alow threshold for a finding that a person has suffered bodily harm (see R v Bulldog, 2015 ABCA 251 at para 44, 326 CCC (3d) 385, and Rv Dixon (1988), (BC CA), 42 CCC (3d) 318 (BCCA) at 332).

Put differently, there is a great range of possible bodilyharms because, by definition, the term excludes only transient and trifling injuries (see R v Gejdos, 2017 ABCA 227, 351 CCC (3d) 460; Rv Saulis, 2020 NBCA 36; and R v A.(J.), 2010 ONCA 226 at para 106, 253 CCC (3d) 153). [42] Given the jurisprudence and the common and distinguishing elements of the three tiers of assault offences set out in theCriminal Code, I adopt the reasoning and conclusion of Rowles J.A. for the Court in R v Soluk, 2001 BCCA 519, 157 CCC (3d) 473,where she held that the offences of simple assault and assault causing bodily harm are included in the offence of aggravated assault,writing: [16] … On reasoning parallel to that in [R v Luckett, (SCC), [1980] 1 SCR 1140], since three of the four ways ofcommitting an aggravated assault are wounding, maiming, or disfiguring and since the infliction of bodily harm is included in each ofthose three ways of committing an aggravated assault, this is sufficient to conclude that the lesser offence is included in the greater offenceas described in the enactment.

A person charged with aggravated assault which is not further particularized in the Information orIndictment must know that each of the four ways of committing an aggravated assault have been put in issue, and is therefore also onnotice that the necessary component of each of those four ways have also been put in issue. … [20] In

summary, I agree with the respondent’s submission that both assault simpliciter and assault causing bodily harm are includedoffences in the offence of aggravated assault as described in the enactment creating it. That conclusion is consistent with the reasoning ofthe Supreme Court of Canada in Luckett and with the earlier Quebec Court of Appeal decision in [R v Lucas (1987), (QCCA), 34 CCC (3d) 28 (Que. C.A.)].

See also R v Wong (2006), (ON CA), 209 CCC (3d) 520 (Ont CA) at para 11. [43] Had the trial judge said that assault causing bodily harm is not included in the offence of aggravated assault as it is described inthe Criminal Code, she would have been in error. However, what she said was: “Given the specific wording of the charge, that is anallegation of ‘wounding’, I don’t believe assault causing bodily harm based on bruising is an included offence” (emphasis added).

Thetrial judge tied her rejection of assault causing bodily harm being an included offence in this case to the fact that the Crown hadparticularised the aggravated assault count to allege a wounding, whereas she found the complainant had suffered bruising that did notamount to a wound.

[ 44 ] Therefore, considering the language the trial judge used, I take the Crown to ask this question: If wounding, maiming and disfigurement all involve bodily harm, how is it that a particularised charge of aggravated assault by wounding does not also include the offence of assault causing bodily harm? [ 45 ] In this regard, there was much discussion during the appeal hearing about the meaning of the word wound in s. 268(1) of the Criminal Code and whether a bruise could be sufficient to constitute a wound.

That question was answered in R v Pootlass where, after carefully reviewing the long-standing use of that word in common law, its meaning under U.K. criminal law and how Parliament has used it in the Criminal Code since 1869, Bennett J.A. concluded her analysis of the meaning of wound under s. 268(1) by writing: [65] In my view, the latter [i.e., “that bleeding is valuable (and in some cases decisive) evidence that a break in the skin went at least as far as the dermis”] is the correct statement of the law.

Prior to the incorporation of the word “wound” into Canadian law, it had a widely understood meaning that did not include bleeding. Although Lord Lyndhurst C.B.’s statement of the law in [ Moriarty v. Brooks (1834), 172 E.R. 1419 , 6 Car. & P. 684 at 686 (U.K. Ex. Ct.) ] has gained traction in recent years, the weight of the jurisprudence and commentary in England rejected it in favour of the “break in the whole skin” articulation. The relevant interpretive principles appropriately constrain courts from altering the definition of words with accepted meanings.

As Cromwell J. wrote in [ R v D.L.W. , 2016 SCC 22 at para 48 , [2016] 1 SCR 402], one way to frame the question is as what a lawyer who was asked for the definition of “wound” in 1869—the time that it was first enacted—would say.

In my view, they would say that a wound was a break in the continuity of the whole skin, meaning a break in the skin that goes at least as deep as the dermis. (Emphasis added) See also R v Brown , 2021 ONCA 678 at paras 23–27 , 158 OR (3d) 275, which affirmed that in Ontario the accepted definition of wound for the purpose of aggravated assault is that which is found in The Honourable Mr. Justice Watt, Watt’s Manual of Criminal Jury Instructions , 2d ed (Toronto: Carswell, 2015): “To ‘wound’ means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body.

It must be more than something trifling, fleeting or minor, such as a scratch”; and see R v Wong at para 13 . [ 46 ] Although hers was not a technical analysis, the trial judge’s approach to the evidence she accepted on the question of whether the complainant had been wounded is consistent with the

definitions of the word wound in R v Pootlass and R v Brown – e.g., “a break in the skin that goes at least as deep as the dermis”. In the result, she found that only a laceration to the complainant’s forehead constituted a wound, and she expressed a doubt as to whether Mr. Androsoff had caused it. This is amply demonstrated by the trial judge’s comments on the evidence when acquitting Mr. Androsoff on the charge of aggravated assault. [ 47 ] As her reasons also indicate, the trial judge speculated that, even if Mr. Androsoff had caused the wound to the complainant’s forehead, he might not have committed an assault within the meaning of s. 265(1) (

a) or might have had a defence to the charge of aggravated assault by wounding. Nevertheless, the trial judge later found that Mr. Androsoff had assaulted the complainant intentionally causing other injuries (namely, bruising) and, therefore, she convicted him of common assault. The Crown revisits this reasoning under other grounds of appeal. [ 48 ] In the context of this case, I conclude that the debate about whether a bruise constitutes a wound is off the mark.

The question for the trial judge, when considering the Crown’s alternative submission on assault causing bodily harm, was not whether the legal meaning of a wound includes a bruise . While the pleading of a “wound” narrowed the scope of the aggravated assault charge itself, it did not affect the legal fact that the infliction of bodily harm is included in a description of an offence of aggravated assault by wounding ( R v Soluk ). [ 49 ] Respectfully, the question the trial judge should have asked herself was whether the bodily-harm element of the lesser included offence under s. 267 (

b) of the Criminal Code was satisfied by the evidence of bruising that she found Mr. Androsoff had caused to the complainant. Because she did not approach the matter in this way, the trial judge erred in law when she ruled that assault causing bodily harm was not an included offence in this case and when she rejected the Crown’s alternative submission that she could convict Mr. Androsoff on that lesser, included offence, if she found there was insufficient evidence to convict on aggravated assault by wounding. [ 50 ] The short answer to this ground of appeal is that the trial judge erred in law when she ruled that assault causing bodily harm under s. 267 (

b) of the Criminal Code was not an included offence in the particularised count of aggravated assault by wounding in the circumstances of this case. [ 51 ] Given the low threshold for a finding of bodily harm, I have no hesitancy in concluding that the evidence of injury that the trial judge accepted (e.g., the testimony of the complainant’s friend and the photograph she took) proved beyond a reasonable doubt that the complainant had suffered, as a result of an intentional application of force by Mr.

Androsoff, a “hurt or injury… that interfere[d] with [her] health or comfort… and that is more than merely transient or trifling in nature”. [ 52 ] Recognising in his factum what the law provides, Mr. Androsoff concedes that it is open to this Court to convict him of assault causing bodily harm; but he suggests that, if we were to do so, there would be no reason to remit that conviction for sentencing.

He persuasively argues that his sentence of two years less a day followed by two years of probation for common assault is “substantial enough to indicate that the bruising was a major factor in determining the quantum of the sanction”. While there is some force in that statement, it nonetheless remains a fact that, because the trial judge made no findings about whether the complainant’s injuries amounted to bodily harm within the meaning of the Criminal Code , she did not sentence Mr. Androsoff on the basis that they had.

Moreover, neither this Court nor the trial judge received sentencing submissions in that regard. [ 53 ] Although I would allow the Crown’s appeal under this ground, I will reserve issues concerning the granting of relief until I have addressed the remaining grounds of appeal. B. Did the trial judge misapprehend the evidence and fail to consider the evidence in its totality?

[54] Under what was the Crown’s first ground of appeal, it submits that the trial judge failed to consider the totality of the evidencewhen she acquitted Mr. Androsoff of aggravated assault. This error, it says, is established because she stated in the Trial Decision that shewas not considering the photographic evidence of the complainant’s injuries taken by police on April 27, May 5 and May 7, 2021.

Theonly photograph she took into account was Exhibit P-2, the picture taken by the complainant’s friend on or about April 26, 2021. [55] The Crown also submits that the trial judge misapprehended the evidence because, when she acquitted Mr. Androsoff ofaggravated assault by wounding, the only injury she recognised as a wound was a laceration to the complainant’s forehead, which shedoubted Mr. Androsoff had unlawfully caused.

She did not, however, refer to a laceration under the complainant’s right eye even though,the Crown says, she later found that that injury was depicted in Exhibit P-2, and it is clearly shown in the photographs taken by the police,which the trial judge intentionally disregarded. [56] The Crown states that the trial judge failed to consider the evidence in its totality because she discounted Mr. Androsoff’sadmissions in the transcribed telephone conversations. It says the trial judge approached this evidence in isolation from the rest of theevidence.

It again alleges a misapprehension of the evidence because the trial judge suggested the admissions of guilt were “equivocal”when some were unequivocal and were not contradicted by Mr. Androsoff. The Crown argues the trial judge improperly minimised thisevidence because she concluded that, on their own, the admissions did not prove beyond a reasonable doubt that Mr.

Androsoff hadcommitted an aggravated assault. [57] Of course, the Crown does not have a right to appeal against an acquittal on the basis that it is unreasonable or unsupported bythe evidence or that the trial judge misapprehended the evidence (see R v J.M.H. at paras 26–27 and 35). However, the Crown asserts thatthe misapprehensions it alleges show that the trial judge’s reasoning on the evidence was contrary to law. In this regard, it correctly statesthat a judge is required to consider the evidence in its totality and to assess the probative value of the totality of the evidence in acumulative fashion.

The error of law, it submits, is that the trial judge applied the criminal standard of proof to individual pieces ofevidence. I will examine that allegation. [58] In R v Morin, (SCC), [1988] 2 SCR 345 (QL), the Court affirmed that a trier of fact is “not to examine theevidence piecemeal by reference to the criminal standard” (at para 33; see also R v J.M.H. at para 31). With respect to Mr.

Androsoff’sadmissions at least, I agree that that seems to be what the trial judge did when she said: While there are some references in the phone calls to what could be considered “wounds” I do not believe the responses of the accused tothe comments made by the complainant carries sufficient weight to establish that he caused wounds to her beyond a reasonable doubt.And as I indicated in my earlier decision I do not believe there is sufficient evidence contained in the phone calls to amount to admissionsof specific assaultive behaviour as -- as alleged in the Informations by the accused towards [the complainant], although there is at least oneadmission of previous assaultive behaviour towards her. [59] On the other hand, the trial judge had found that the only evidence of wounding—which is an essential element of the offenceas plead—was in Mr.

Androsoff’s admissions in the transcribed telephone conversations. It is not an error of law to find, on the basis of allthe relevant and accepted evidence, that an element of an offence has not been proven beyond a reasonable doubt. In R v Walker, 2008SCC 34, [2008] 2 SCR 245, in the context of an allegation that a trial judge had given insufficient reasons for entering a verdict ofacquittal, the Supreme Court wrote: [22] A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefitsfrom the presumption of innocence.

The intervener Attorney General of Ontario argues that “[t]he fact that the accused is presumedinnocent doesn’t derogate in any way from the judge’s duty to correctly apply all applicable legal principles” (Factum, at para. 7). This istrue, so far as it goes, but whereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond areasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.

The trialjudge may just conclude that one or more of the elements of the offence was “not proven” to the criminal standard. This difference doesnot excuse a trial judge from failure to provide intelligible reasons for an acquittal, but it necessarily informs an assessment of whether thereasons are so deficient as to preclude effective appellate review. (Emphasis added) [60] I am, therefore, unable to conclude that the trial judge erred in law by failing to consider the evidence in its totality or bysubjecting individual pieces of evidence to the criminal standard of proof when she found Mr.

Androsoff not guilty of aggravated assaultby wounding. [61] I would dismiss this ground of appeal. C. Did the trial judge err by failing to apply the law to the facts as she foundthem to be? [62] Under this ground, the Crown alleges that the trial judge turned the process for reaching a verdict “on its head” because sheacquitted Mr. Androsoff of aggravated assault before she made findings of fact and thereby failed to give legal effect to the facts she hadactually found. [63] The Crown says this is readily seen in the Trial Decision, where the trial judge acquitted Mr.

Androsoff of aggravated assaultby finding that the evidence left her with a reasonable doubt as to whether he had caused a wound to the complainant’s forehead.However, she reached that verdict before she set out any of her factual findings. When she later convicted Mr. Androsoff of commonassault, she made findings that contradicted her reasons for the verdict of acquittal by accepting and relying on evidence that Mr.Androsoff had caused injuries that the Crown says included a wound under the complainant’s right eye, as shown in Exhibit P-2. [64] The Crown submits that the fact the trial judge later found that Mr.

Androsoff had wounded the complainant in this way isconfirmed because she relied on that wound when reasoning that the defence of self-defence was not available to him on the common

assault charge. In that analysis, she found that, due to the complainant’s injuries, the extent of Mr. Androsoff’s violent response to thecomplainant having scratched him was unreasonable and disproportionate. [65] The Crown also observes that the trial judge had earlier speculated, when expressing doubt on the evidence of wounding, that itwas possible the assault had begun as a consensual fight or that the complainant had started it, and, therefore, she said she could not besure that the forehead wound “was caused intentionally and without cause or defence”.

As noted, the trial judge later definitively rejectedthose possibilities, saying: [The complainant’s friend] told the accused on hearing that that this was no reason for him to do what he did. As far as I’m concerned shewas exactly right. Even accepting that [the complainant] was the first to use violence such that it may have begun as a consensual fightwith her scratching Mr.

Androsoff, there is no possible way that the amount of force which would have to have been used to produce thesevere bruising which [the complainant’s friend] observed can be considered in any way reasonable or proportionate. [The complainant]had two black eyes and was severely injured according to [her friend’s] evidence. … This is far beyond what could be considered anything but would have been or could have in law been consented to and far beyondanything that could constitute a defence of self-defence within the meaning of

Section 34 of the Criminal Code since it in no way could beconsidered reasonable in the circumstances. (Emphasis added) [66] The Crown attempts to bolster its argument under this ground by submitting that the trial judge also mishandled the evidenceabout the forehead injury. It says she treated this evidence differently from the evidence of other contemporaneous injuries, which sheaccepted Mr. Androsoff had intentionally caused. In the Trial Decision, the trial judge found the wound did not support a convictionbecause she could not say “when or how” it had been caused.

Somewhat inconsistently, submits the Crown, she did not hold the samereservations about the lesser injuries, even though the same, credible and reliable witness had testified to observing at the same time boththe lesser injuries and the wound. This, however, is an allegation that the trial judge misapprehended the evidence and, therefore, I wouldgive no weight to it in my analysis. [67] Nonetheless, as the Crown notes, there are obvious flaws in the trial judge’s reasoning regarding the acquittal for aggravatedassault given her findings on common assault.

Most strikingly, as the Crown argues, the trial judge later contradicted some of her reasonsfor the acquittal by finding that Mr. Androsoff could not have defended against the charge of aggravated assault on the basis that thecomplainant had consented or under the defence of self-defence by reason of the lesser injuries he had inflicted upon her. [68] The trial judge’s later finding that those injuries had been inflicted without the consent of the complainant is unassailable in thecontext of this case.

The majority of the Court in R v Jobidon, (SCC), [1991] 2 SCR 714 at 766, after consideringcommon law limitations on the phrase “without the consent of another person” under s. 265(1)(

a) of the Criminal Code, held that consentis vitiated where one party intends to cause and does cause the other party “serious hurt or non-trivial bodily harm” (see also R v Paice,2005 SCC 22, [2005] 1 SCR 339). The majority in R v Jobidon said that the degree of injury required to vitiate consent is “equivalent tothat contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm” (at 767).

Inother words, where an assailant intends to cause and does cause “any hurt or injury to the complainant that interferes with the health orcomfort of the complainant and that is more than merely transient or trifling in nature”, the complainant’s consent to that assault is vitiated(at 767–768). [69] As to the evidence she accepted, the trial judge found that the complainant’s friend was a credible witness and that hertestimony was reliable. She also found that Mr. Androsoff had intentionally caused the injuries that the complainant’s friend had observedand photographed (Exhibit P-2).

As I address elsewhere in these reasons, that testimony and photographic evidence of those injuries(excluding the wounds allegedly overlooked by the trial judge and about which she held reservations) satisfies the definition of bodilyharm set out under the Criminal Code.

Therefore, to the extent that the trial judge rejected the evidence supporting the fact that Mr.Androsoff had wounded the complainant on the basis that the fight might have been consensual, she erred in law. [70] As the trial judge herself later concluded, there was no basis in the evidence or at law to support some of the reasons she hadearlier given for harbouring doubt about whether Mr. Androsoff had intentionally caused a wound to the complainant.

However, writingfor a unanimous Court in R v J.M.H., Cromwell J. confirmed that in an appeal against an acquittal the errors of law that may arise from atrial judge’s assessment of evidence, include: (

a) making a finding of fact for which there is no supporting evidence (at paras 25–27); (

b) determining the legal effect of findings of fact or undisputed facts (at para 28); (

c) assessing the evidence based on a wrong legal principle (at paras 29–30); and (

d) failing to consider all of the evidence in relation to the ultimate issue of guilt (at paras 31–32). [71] While I agree that parts of the trial judge’s reasoning when acquitting Mr. Androsoff of aggravated assault by wounding werecontradicted by her later findings of fact, those reasons did not form the entire basis for that verdict. At bottom, and regardless of whethershe misapprehended evidence, the trial judge was plainly uncertain as to “when and how” the forehead wound had been caused.

Irecognise that this finding does not squarely line up with the testimony of the complainant’s friend on which the trial judge otherwiserelied. However, in my view, it is an expression of doubt about an essential element of the offence based on the reliability or weight of aspecific piece of evidence. It is trite that a trier of fact is entitled to accept all, some or none of any witness’s testimony (R v Asapace, 2011SKCA 139 at para 58, referring to R v W.(D.), (SCC), [1991] 1 SCR 742; see also R v J.M.H. at para 25). Axiomatically,when that occurs, it does not give rise to an error of law.

Moreover, while it is an error of law to make a finding of fact for which there isno supporting evidence (R v Schuldt, (SCC), [1985] 2 SCR 592 at 604), an acquittal cannot be set aside on the basis that itis not supported by the evidence (R v J.M.H. at para 25).

[ 72 ] In short, while I see the flaws in the trial judge’s reasoning and acknowledge the cogency of the alleged misapprehension of evidence arguments, I can see no error of law under this ground that lead to her entering an acquittal on the charge of aggravated assault. [ 73 ] I would dismiss this ground of appeal. D. Were the complainant’s out-of-court statements improperly excluded from the evidence? [ 74 ] As noted, the Crown applied to admit a transcript of the 911 call the complainant made on April 27, 2021, as well as a video- recorded statement she provided to the police on May 7, 2021.

The trial judge found that Mr. Androsoff’s declaration to the complainant’s friend that the complainant had “started it” corroborated aspects of the 911 call as well as parts of the complainant’s recorded statement. She concluded that the corroborated aspects of the two statements were substantively reliable, i.e., that Mr. Androsoff had assaulted the complainant and had caused the injuries that her friend had observed and photographed. [ 75 ] However, the trial judge also expressed concerns about the complainant’s general trustworthiness and reliability, largely because the complainant had lied to Mr.

Androsoff when he asked her not to testify, had failed to include a detail about an assault in the 911 call, had given two inconsistent reasons for having called the police, and had lied to the police about being a drug user. She linked these credibility concerns with hearsay dangers because Mr. Androsoff was unable to cross-examine the complainant due to her death.

The trial judge then concluded her analysis on the admissibility of the two statements by determining that they should not be admitted, because the prejudicial effect of their admission outweighed their probative value: In the result, my conclusion is that the statement in the 911 call that he, “beat the tar out of me”, and references in the videotaped statement that Mr. Androsoff punched [the complainant] causing some of the bruises still evident at the time the statement was made on May 7th, meet the threshold test for admission as set out in the Bradshaw decision.

However, in the present case, I find it necessary to go farther. Given the concerns that I have outlined in this decision about the truthfulness of [the complainant] and the inconsistencies in and between the statements she made, lead me to believe that this is an appropriate case where the Court should consider exercising the residual discretion, as stated in Bradshaw , to nevertheless exclude the statements.

In this case, the statements are highly prejudicial but are of limited probative value, given the inconsistencies and concerns that I have noted in this decision about [the complainant’s] reliability and truthfulness. To admit even a small portion, but a very damaging portion of her statements, when the defence has no ability to cross-examine her, would result in an unfair trial, in my view. To be clear, I find that the prejudicial effect of admitting the statements is greater than the probative value of the statements.

And in the result, although I have found that a small portion of the statements tendered by the Crown may meet the test for threshold substantive reliability, I have concluded that they should not be admitted into evidence, in light of all the circumstances, and the overarching need in all criminal cases to ensure the accused has a fair trial. [ 76 ] The admission of an out-of-court statement that does not fall under a traditional exception to the hearsay rule depends on proof, on a balance of probabilities, that its admission into evidence is necessary and that it is reliable ( R v Bradshaw ).

However, even if those two criteria have been met, the court retains a residual discretion not to admit the evidence if its prejudicial effect will outweigh its probative value ( R v Blackman , 2008 SCC 37 at para 33 , [2008] 2 SCR 298).

Here, the Crown alleges that the trial judge erred in fact and law when she exercised her residual discretion to not to admit the complainant’s statements into evidence. [ 77 ] In terms of factual error—in respect of which, to reiterate, it has no independent right of appeal—the Crown alleges that the injuries the complainant’s friend observed (i.e., those shown in Exhibit P-2) consist of wounds that went beyond “significant bruising”, including a laceration under the complainant’s right eye and a lacerated lump on her forehead.

The Crown posits that the trial judge ignored the forehead wound when considering the admissibility of the complainant’s out-of-court statements because the complainant had said, in a telephone conversation with Mr. Androsoff, that “Vern” had caused it. As the Crown interprets the evidence about “Vern”, it was such that, if he had assaulted the complainant, he had done so on May 1, 2021; whereas the complainant’s friend had observed the forehead wound in late April and the police saw it on April 27, 2021.

This is, again, an allegation that the trial judge misapprehended the evidence, and I would give no further thought to it as this is an appeal against an acquittal. [ 78 ] As to legal error, the Crown asserts that the trial judge confused “threshold reliability” with “ultimate reliability”. Under R v Bradshaw (which adopted the dicta in R v Blackman at paras 54–56 ), a judge who conducts an admissibility voir dire must focus on the hearsay evidence in question—and not conduct a full trial on the merits.

The Crown says the trial judge went beyond a threshold reliability analysis by considering whether the complainant was a truthful person in general—i.e., whether she was inherently trustworthy.

The Crown submits that, under R v Bradshaw , the trial judge should have asked herself whether the two statements were inherently trustworthy, which required her to focus on the circumstances in which the complainant had made them and the evidence that either corroborated what she said or contradicted it. [ 79 ] In this way, the Crown submits that, although she correctly concluded that the statements were reliable, the trial judge improperly assessed their substantive reliability.

It argues that, in focussing on the complainant’s general trustworthiness, the trial judge considered evidence that neither corroborated nor conflicted with the material portions of the statements. As examples of this, the Crown points to the trial judge’s reference to the fact that the complainant had lied to the police about whether she was a drug user. That fact, while relevant to her general truthfulness, says nothing about the inherent trustworthiness of the material portions of her statements.

The Crown objects in addition because the trial judge took issue with the complainant’s failure to provide a detail about an assault in the 911 call that she later told to the police (i.e., that Mr. Androsoff had smashed her head against a fireplace), and that she had given two inconsistent reasons for calling the police. In the Crown’s opinion, these observations by the trial judge, while relevant to the complainant’s general truthfulness, say nothing about the inherent trustworthiness of the material portions of her statements. [ 80 ] In a similar vein, the Crown points to the fact the complainant told Mr.

Androsoff that she was “pretty good at what I do” when

responding to one of his attempts to get her to recant or not testify. This, it says, was not relevant evidence at the threshold reliability stagebecause what the complainant said to Mr. Androsoff neither supported nor conflicted with what she said to the police.

The Crown assertsthat, under R v Bradshaw, corroborative or conflicting evidence must relate to material portions of the statement or statements in question. [81] When looked at in such strict terms, there is some merit to what the Crown submits is an error in the trial judge’s approach tothe assessment of threshold reliability; however, as the Crown acknowledges, the trial judge nevertheless reached the correct conclusionin that regard.

Because an appeal is from the result and not the reasons for it (R v Sheppard, 2002 SCC 26 at para 4, [2002] 1 SCR 869), itis difficult to persuade an appellate court to interfere with a judge’s reasoning when they have arrived at the correct result.

Even if sheerroneously approached aspects of that inquiry, the trial judge properly sought to determine whether there might be a “real concern aboutwhether the complainant was speaking the truth” in her 911 call and her video-recorded statement to the police (R v Khelawon, 2006 SCC57 at para 86, [2006] 2 SCR 787, paraphrasing from R v U. (F.J.), (SCC), [1995] 3 SCR 764).

In this regard, I can onlyinterpret the trial judge’s decision as finding that there were adequate substitutes for the in-court process of establishing the reliability ofthe two statements and, therefore, that it was safe to admit them into evidence. I agree with that conclusion. [82] Nonetheless, I acknowledge that the trial judge did not mention several indicia relevant to the issue of the substantive reliabilityof the two statements.

For example, the evidence was such that the 911 call had been made relatively contemporaneously to the assaultsand that the statement to the police was recorded shortly thereafter. That timing removes much of any concern about whether thecomplainant’s memory was eroded or inaccurate due to the passage of time. Although the trial judge questioned the complainant’scredibility in a general way, there were no concerns about to her memory or perception.

Further, for the purposes of a credibilityassessment, the fact that her statement to the police had been video-recorded provided the trial judge with a small window onto thecomplainant’s demeanour when making it.

In addition, unlike other indicators of trustworthiness, the corroborating evidence of thecomplainant’s friend was addressed through cross-examination at trial and by the trial judge in an objective way, resulting in her findingthe witness credible and her testimony reliable. [83] Also, there is no evidence that the complainant had a reason or was motivated to lie to the police or that a third party hadinfluenced her to make the statements. To the contrary, there was evidence that Mr.

Androsoff had repeatedly counselled the complainantto recant from those statements, to say she had forgotten the details of the assaults, or to refuse to testify against him. While the trial judgediscounted the value of that evidence of obstruction of justice, saying it would not be “appropriate to infer guilt” from it, the evidence thatMr.

Androsoff had counselled the complainant to change her story in one breath and had admitted to causing her injuries in the next wasnonetheless corroborative, at the threshold stage, of the reliability of her statements to the police. [84] As noted, there were many indicia of the substantive reliability of the two statements in this case. Not least of which is thestrong, corroborative evidence that supports the veracity of the complainant’s two statements to the police.

The parallels between thestatements, the testimony of the friend, and the telephone conversations compel the conclusion—at the threshold reliability stage—that thecomplainant was telling the truth about Mr. Androsoff having assaulted her and having caused her injuries.

This is not, of course, adetermination of the ultimate reliability and probative value of the complainant’s statements—that question is not at issue in anadmissibility voir dire because ultimate reliability is for the trier of fact to determine. [85] I reviewed the indicia of reliability because, at the end of the day, the trial judge was not persuaded that the probative value ofthe complainant’s out-of-court statements outweighed their potential to have a prejudicial effect on trial fairness.

While she located herconcern in the fact that the complainant was unavailable for cross-examination, the trial judge said nothing about how Mr. Androsoff’sright to a fair trial would be jeopardised by admitting evidence that was highly probative of his guilt and that she had found was inherentlytrustworthy. With respect, in the absence of an explanation as to why this was the case, I find it quite difficult to imagine what utilitycross-examination might have brought given the trial judge’s thorough critique of the complainant’s overall credibility in thecircumstances.

The lack of an ability to cross-examine the complainant in this context goes to the weight of her out-of-court statements, adetermination that is left to the trier of fact. [86] Although presumptively inadmissible, the law recognises that the inability to test hearsay evidence through cross-examinationdoes not bar its admission in every case.

As the Supreme Court explained in R v Khelawon (at para 49), the “broader spectrum of interestsencompassed in trial fairness is reflected in the twin principles of necessity and reliability” under the principled exception to hearsay.Necessity, which is “founded on society’s interest in getting at the truth”, recognises that courts must sometimes allow in hearsay evidencebecause cross-examination (i.e., the “optimal test” of reliability) is not possible.

Given the complainant’s death, satisfaction of thenecessity criteria was not an issue. [87] Reliability, on the other hand, “is about ensuring the integrity of the trial process” (R v Khelawon at para 49). The SupremeCourt went on to say that, due to the circumstances in which a statement is made, its contents “may be so reliable that contemporaneouscross-examination of the declarant would add little if anything to the process” and, in other cases, “the evidence may not be so cogent butthe circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination”.

As I understandthe Trial Decision, the necessity and reliability criteria were met in this case; the trial judge’s reasons cannot be read any differently. [88] In R v Khelawon, the Court wrote that, where the necessity and reliability criteria have been met, the admission of the evidence“will rarely undermine trial fairness” (at para 49).

The Court also recognised that, because trial fairness may encompass factors beyondthe strict inquiry into necessity and reliability, “even if the two criteria are met, the trial judge has the discretion to exclude hearsayevidence where its probative value is outweighed by its prejudicial effect” (at para 49).

Here, the trial judge echoed that language, but shedid not articulate (or make any findings or statements) about what actual prejudice to the trial process could occur if the two highlyprobative and reliable statements were admitted into evidence. [89] In my opinion, where a trial judge, sitting alone, exercises this residual discretion, it is incumbent upon them to explain—giventhat the necessity and reliability criteria have been satisfied—why they have decided not to admit the hearsay evidence or how itsadmission would undermine trial fairness.

I reach that conclusion because an admissibility voir dire is plainly held for the twin purposesof identifying the specific hearsay dangers raised by a statement and of determining whether the surrounding facts offer sufficientguarantees of its trustworthiness to counterweigh those dangers. Further, the ultimate reliability of a statement and the weight to beattached to it remain determinations for the trier of fact.

Therefore, due to the truth-seeking function of the principled exception, and theneed for there to be effective appellate oversight, a judge must explain why, having found evidence necessary and reliable, the

circumstances nonetheless do not afford the judge, as the trier of fact, with a satisfactory or low-risk basis for evaluating the truthfulness of the statement in the trial. [ 90 ] Moreover, I cannot see how, the admission of the complainant’s out-of-court statements would have prejudiced trial fairness in this case. Respectfully, a concern that this evidence could be put to an improper use by the trier of fact did not arise.

As such, since the trial judge found them to be necessary and reliable evidence, and in the absence of any evidence that their admission would undermine trial fairness, I conclude there was no basis in law for the trial judge to exclude the complainant’s out-of-court statements. [ 91 ] In sum, I find that the trial judge erred in law when she exercised her residual discretion not to admit what she had concluded was necessary and substantively reliable evidence. I would allow the Crown’s appeal under this ground. V. conclusion [ 92 ] I now turn to the relief I would grant in this appeal.

On an appeal from an acquittal, if the Crown establishes an error of law, it must also convince this Court that the verdict would not necessarily have been the same if the error(

s) had not been made. The burden is a heavy one and the Crown must satisfy this Court with a reasonable degree of certainty ( R v Morin ). [ 93 ] In this case, the Crown has established, and Mr. Androsoff concedes, that the trial judge erred in law when she concluded that assault causing bodily harm was not an included offence in the particularised charge of aggravated assault by wounding. The two complainant’s out-of-court statements have probative value as direct evidence capable of proving Mr. Androsoff’s guilt on the charge of aggravated assault by wounding.

It was an error of law to exclude them from evidence. However, given her reasons, I am not persuaded that the trial judge would have put much weight on them had they been admitted. More fundamentally, while the Crown has persuasively argued that the trial judge misapprehended the evidence, I cannot weigh those errors in this assessment of whether the verdict would not necessarily have been the same if the errors had not been made.

This is because, while I agree that the whole process of reaching the verdicts in this case was distorted, I cannot conclude that it was bent by an error of law to a degree that necessarily undermines the verdict of acquittal on the aggravated assault charge. Put another way, I lack the requisite degree of certainty that the verdict of acquittal on the aggravated assault charge would not necessarily have been the same if the errors of law that I have found had not been made.

I conclude that the Crown has not discharged its onus. [ 94 ] Nonetheless, the Crown has established that the trial judge, but for an error of law, should have convicted Mr. Androsoff of assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code . The trial judge found all the facts necessary to reach a conclusion in law that he was guilty of assault causing bodily harm. Accepting those facts as found, this Court is entitled to disagree with the legal conclusion the trial judge reached without trespassing on her fact-finding function. [ 95 ] Therefore, applying the trial judge’s findings of fact to the proper legal principles, I would set aside the conviction on the count of common assault contrary to s. 266 and enter a conviction for assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code . I would remit the matter of sentencing on that conviction to the Provincial Court. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “McCreary J.A.” McCreary J.A.