



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cesar, 2016 ONCA 890

DATE: 20161124

DOCKET: C58004

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rosny Cesar

Appellant

Howard L. Krongold, for the appellant

Tracy Kozlowski, for the respondent

Heard: March 31, 2016

On appeal from the conviction entered by Justice Robert
    J. Smith of the Superior Court of Justice on February 1, 2013, sitting with a
    jury.

Tulloch J.A.:

A.

Introduction

[1]

The appellant was charged with murder, but convicted of manslaughter, after
    a bar fight in which he stabbed a man five times and killed him.

[2]

At trial, the appellant said that he was provoked. He also argued that
    he killed the victim, Danny Trineer, in self-defence.

[3]

To support that defence, the appellant sought to adduce a hearsay statement
    of a paramedic who attended the scene. The paramedic told police that he heard
    one of the persons he treated say words to the effect that not the victim, but
    the other guy was getting beaten up... he wasnt winning the fight. And since
    he was under, thats when he got his knife out and would have stabbed the
    other.

[4]

The appellant wanted to use that statement to prove that the version of
    events described in it was true. He also wanted to prove that the statement was
    made by Christian Sauvé, a bouncer at the bar and friend of the deceased, to
    impeach Sauvés testimony at trial.

[5]

The trial judge dismissed his application to adduce that evidence.

[6]

On appeal, the appellant argues that the trial judge erred in doing so.

[7]

He also argues that the trial judge erred by failing to leave the
    defence of accident to the jury, when, in his view, there was an air of reality
    to it.

[8]

For the reasons that follow, I would dismiss his appeal.

B.

Background

[9]

The appellant and Trineer met at a bar in Hawkesbury late on a Friday
    night in September 2010.

[10]

The
    appellant was there with his girlfriend and her friend. They arrived at about
    12:40 a.m. and went upstairs to the nightclub area of the bar.

[11]

Trineer
    was in the nightclub area of the bar at that time, accompanied by two female
    friends, and his sister. Trineer had worked as a bouncer at the bar and was
    good friends with many of the bouncers who worked there.

[12]

About
    five minutes later, the appellants girlfriend and one of Trineers friends
    started arguing. The appellant, who is black, tried to intervene. At this time,
    he says that Trineer came close to him and said, You Nigger, did you come here
    to take my place? The appellant said that Trineer then told him that he was
    not from here and threatened to shoot him and his girlfriend. Some bouncers
    intervened.

[13]

The
    appellant decided to go home, but his girlfriend wanted to stay and dance. He
    left her behind, telling her he would come back later. He was upset. It was
    about 12:51 a.m.

[14]

Once
    home, the appellant testified that he decided it was a bad idea to have left
    his girlfriend behind. He grabbed a kitchen knife, allegedly for self-defence,
    put it in the pocket of his pants, and drove back to the bar.

[15]

Before
    the appellant returned, his girlfriend got involved in another altercation. She
    was trying to drink a beer on the balcony. Two bouncers, Yves Pépin and
    Christian Sauvé, tried to remove her from the bar. She was pushing and hitting
    them. When she kicked Pépin in the stomach, Trineer intervened. He and Sauvé
    carried her down the stairs by her arms and legs. They placed her down outside.

[16]

The
    appellant returned to find his girlfriend crying in the parking lot. He went
    straight to her. She told him that the bouncers had almost undressed her in
    front of everyone and that one of them punched her in the head.

[17]

The
    appellant confronted the bouncers. While doing so, his girlfriend pointed out
    Trineer, who was crossing through the parking lot. She told the appellant that
    he was the one that grabbed the beer bottle from out of her mouth. She and the
    appellant went to confront Trineer, but two bouncers stood in the appellants
    way.

[18]

The
    appellants girlfriend went ahead and started yelling at one of Trineers
    friends. She started hitting Trineer in the chest. Trineer then took her down,
    allegedly pushing her face into the ground.

[19]

The
    appellant then ran towards Trineer to punch him. The accounts of what happened
    next diverge.

[20]

According
    to the appellant, a bouncer then jumped on top of him before he reached Trineer
    and put him in a chokehold. Trineer then started punching him in the face. He
    was scared. He drew his knife during the struggle. The defence acknowledged
    that the appellant must have stabbed Trineer, although the appellant stated
    that he had no idea how it happened.

[21]

Other
    witnesses, most of whom were friends with Trineer, contradicted the appellants
    version of events. Sauvé said that he placed himself between the appellant and
    Trineer to intervene, but Trineer said that he could handle it. Both
    adversaries stood with their fists clenched, when in a matter of seconds, the
    appellant drew a knife and stabbed Trineer. Sauvé testified that Trineer never
    connected with any of his punches. Dominic Séguin-Potvin, another bouncer, said
    that he saw the appellant with the knife, which he thought was a gun at first. He
    yelled, hes got a gun. A few seconds later, Séguin-Potvin said the appellant
    lunged at Trineer with the knife and stabbed him.

[22]

One
    of Trineers friends said she saw the appellant punch Trineer. She said that
    Trineer tried repeatedly to hit him back, but that it did not appear that any
    of his punches landed.

[23]

None
    of the witnesses described the appellant being held by a bouncer, or pummelled
    by Trineer, before the stabbing took place.

[24]

Sauvé
    intervened to break up the stabbing. He grabbed the appellant with one hand as
    Trineer was still struggling to try to hit him, and grabbed the knife with the
    other. Sauvé cut his hand doing so. He threw the appellant to the ground, where
    they rolled around. The appellant bit Sauvé on the arm and then fled the scene.
    Later that night, the appellant turned himself in to police.

C.

Issue #1  Use of The paramedics statement

[25]

A
    paramedic who attended at the scene, Daniel Lacelles, recounted to police a
    version of events that a bouncer, allegedly Sauvé, told him shortly after the
    stabbing. The paramedics recounted version of events contradicted Sauvés testimony
    at trial. And that recounted version of events was a more favourable one to the
    appellant than that given by other witnesses, including Sauvé.

[26]

Not
    surprisingly, the appellant wanted to put the paramedics statement before the
    jury. However, as an out-of-court statement adduced for the truth of its
    contents, that statement was hearsay, and presumptively inadmissible.

[27]

The
    trial judge dismissed the appellants application to admit the paramedics
    statement. He concluded that the paramedics recounting to police of what was
    said to him was so unreliable that it could not be safely proven that Sauvé
    did, in fact, make such a statement to him.

[28]

I
    would not interfere with that holding. Since it could not be proven that Sauvé
    made the alleged statement to the paramedic, it follows that the version of
    events described therein could not be admissible for the truth of its contents
    or used to impeach Sauvés credibility. I would therefore dismiss this ground
    of appeal.

(1)

Facts

[29]

The
    paramedic did not witness the stabbing first-hand. He arrived at the scene
    shortly after it happened. This was sometime around 1:00 a.m. There, he
    assisted two colleagues with Trineer and then rode in the ambulance with them
    to the hospital.

[30]

The
    stabbing took place on a Friday night. On Sunday morning at about 9 a.m.,
    roughly 32 hours later, the paramedic gave a statement to police. That
    statement included the following:

He told me that he worked at the Déjà Vu. And he told me that
    the story about  the event having started upstairs. They threw a girl out. And
    the guy lying on the ground would have helped escort the lady out because he
    had previously worked at the Déjà Vu with him. And then, when they went back
    out to the parking, with another girl that was involved in the incident
    upstairs, the other girl is still outside in the parking. And I could
    understand that her friend  her boyfriend  this is when the fight started.
    And then he told me
at some point more or less  not the victim, but the
    other guy, was getting beaten up. He was  he wasnt  he wasnt winning the
    fight. And since he was under, thats when he got his knife out and would have
    stabbed the other.
He said that himself didnt see the knife at first. And
    when he saw that the other guy fell, this is when he saw the knife in the hands
    of the other guy and he tried to remove it from him. And this is how he cut his
    hand. [Emphasis added.]

[31]

On
    the
voir dire
at trial, the paramedic testified that he remembered that
    he spoke to police after the stabbing, that the events were fresh in his mind
    at the time, and that he was being truthful.

[32]

However,
    he said that he had no independent memory of what he talked about in that
    statement. He testified that he had no memory of any conversations with Sauvé
    at all, and that he would not recognize him if he saw him with ten other people
    in the courtroom. Nor could he recall if the conversation was in English or in
    French. And he could not say where he would have spoken to Sauvé, whether at
    the hospital or at the scene.

[33]

The
    paramedic testified that maybe he could have become confused. He explained that
    the scene was very chaotic. He would have spoken to about 10 different people
    there. They were all providing him with information about what had happened. He
    said he received a lot of information while at the scene.

[34]

The
    paramedic did not take any notes of his conversation with the bouncer. He
    acknowledged that what he said to police was not a word for word account of
    what he heard. The statement was not given under oath, and the paramedic was
    not warned of the consequences for giving false information. His purpose for
    speaking to police was to help them make further inquiries.

[35]

Sauvé
    acknowledged that he spoke to a paramedic. But, when cross-examined about what
    he said, he denied giving the version of events recounted by the paramedic:

Q. Do you recall speaking to one of the ambulance attendants?

A. At Déjà Vu, not at the

Q.  At Déjà Vu?

A. Yeah.

Q.  Okay. And he looked at your hand, correct?

A.  Thats correct. And then he told me to go to the hospital
    and I said, No, just go worry about my friend right now.

Q. Okay. And he had asked you what happened to your hand?

A.  I dont recall that, no.

Q. Do you recall talking to him about what had happened in the
    fight?

A. Yes. That my friend was stabbed.

Q. Do you recall telling him that not the victim but the other
    guy had been punched?

A. I dont recall that, no.

Q. You dont recall telling him that Mr. Cesar had been
    punched?

A. Thats correct.

Q. Did you recall telling him that Mr. Cesar didnt have the
    upper hand in the fight?

A. No.

Q. Do you recall telling him that Mr. Cesar ended up underneath
    and thats when he took out the knife and stabbed the other guy?

A. I never said anything like that, no.

Q. I understand that this fight happened very quickly?

A. Thats correct.

Q. And you can disagree with me on what Im about to suggest to
    you, thats fine, I expect you might. Is it possible that Danny Trineer, one of
    his punches connected with Mr. Cesar?

A. I do not agree, no.

[36]

The
    recorded statement was the only evidence the appellant could rely on that such
    a conversation ever occurred. That is because the paramedic had no present
    recollection of his alleged conversation with Sauvé, and Sauvé denied that he
    ever said what was contained in that statement.

(2)

Discussion

[37]

Hearsay
    evidence is defined not by the nature of the evidence
per se
, but by
    the use to which the evidence is sought to be put: namely, to prove that what
    is asserted is true:
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R. 144, at
    para. 162.

[38]

Here,
    the appellant sought to put the paramedics out-of-court statement to two
    hearsay uses.

[39]

First,
    he wanted to prove that Sauvé actually gave the version of events to the
    paramedic that was recounted in the paramedics statement. In this way, he
    could argue to the jury that Sauvé was not a credible witness since he gave a
    different version of events at trial. This manner of impeachment is set out
    under s. 11 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5

[40]

Second,
    he wanted to prove that the version of events described in the paramedics
    statement was what actually happened. This would help his self-defence claim.
    That is because that version, unlike the one given at trial by Sauvé and
    others, indicated that the appellant was losing the fight and was under when
    he took out the knife and stabbed Trineer.

[41]

This
    second use, however, involved two levels of hearsay: the first being the paramedic
    recounting what Sauvé said to him; the second being Sauvé recounting to the
    paramedic what he witnessed during the fight. This is sometimes referred to as
    double hearsay. For this double hearsay use, each level of double hearsay
    must fall within an exception, or be admissible under the principled approach:
Starr
, at para. 172.

[42]

Thus,
    before the appellant could prove the second level of hearsay  that Sauvés
    version of events recounted in the paramedics statement was what actually
    happened  he had to be able to prove that Sauvé actually gave that version of
    events to the paramedic in the first place.

[43]

The
    trial judge refused to admit the recorded statement for either hearsay use.

[44]

On
    appeal, the parties fundamentally disagree about how the trial judge resolved
    the appellants application. The resolution of that disagreement plays a large
    role in the determination of this issue on appeal.

[45]

The
    appellant claims that the trial judge found that the first level of hearsay 
    the paramedics recounting of what he heard said  fell under the past
    recollection recorded exception to hearsay. Having done so, the appellant says
    that the trial judge erred by refusing to allow him to impeach based on the
    statement.

[46]

The
    appellant further argues that the trial judges principled approach analysis
    was flawed. For the most part that is because, having accepted that the first
    level of hearsay fell under the past recollection recorded exception, he
    treated the paramedic as the declarant of the statement, and not Sauvé. Had
    Sauvé been treated as the declarant, he says, the evidence would have been
    found to be sufficiently reliable.

[47]

The
    Crown, on the other hand, says that the trial judge never accepted that the
    first level of hearsay was admissible, and that he was entitled to so hold. On
    that basis, the trial judge properly dismissed the appellants application.

[48]

In
    my view, the Crowns interpretation of the trial judges resolution of this
    issue is the correct one. The trial judge never found that the relevant portion
    of the paramedics statement was admissible.

[49]

Reading
    the trial judges reasons as a whole, it is evident that he dismissed the
    application because he determined that the first level of hearsay was not
    admissible.

[50]

Contrary
    to the appellants contention, he did not accept that the paramedics
    recounting of Sauvés statement satisfied the past recollection recorded
    exception. His disposition under that ground makes this clear. He stated that
    the paramedics statement would only be admissible as a past recollection
    recorded for statements contained therein
other than the hearsay statements
    contained therein made to him by Christian Sauvé
 (emphasis added).

[51]

Without
    affirming the trial judges reasoning and analysis in arriving at that
    conclusion, we accept that his primary concern was about the reliability of Sauvés
    hearsay statement to the paramedic as recounted to the police by the
    paramedic.  This was a proper concern because [t]he past recollection recorded
    is grounded in a concern for reliability:
R v. Richardson
(2003), 174
    O.A.C. 390 (C.A.), at para. 34.

[52]

In
    the trial judges view, the conversation between Sauvé and [the paramedic]
    occurred in very unreliable circumstances and was not recorded in a reliable
    way. His reasons for arriving at this conclusion are repeated in several
    places, but are perhaps best summarized in the following excerpt:

However, [the paramedics] statement to the police on September
    the 5th of 2010 contains unreliable hearsay, which was not accurately recorded
    by [the paramedic], namely, his recollection of an oral statement made to him
    by Christian Sauvé, that he heard while administrating care to a critically ill
    victim, where he did not make notes of what was said, where he received information
    from ten other people at the scene and where the circumstances were chaotic,
    stressful and where his primary objective and concern was to provide care to
    the seriously injured victim and not to record exactly what had happened or
    what he was told.  His statement is also not a word for word account.  In
    addition, I note, [the paramedic] does not appear to have a very good memory.

[53]

In
    short, although the trial judge accepted that the video statement was an
    accurate statement of what the paramedic told the police, he was not persuaded
    that it contained an accurate and reliable record of what Sauvé told the
    paramedic. The issue was not whether what the paramedic told the police was
    reliably
recorded
. The issue was whether
    what Sauvé told the paramedic was reliably recounted.

[54]

To put it another way, the trial judges reasons demonstrate that
    the record did not satisfy him that the paramedics statement was made 
while the event was sufficiently fresh in the witness's mind to be
    vivid and likely accurate, a condition for past recollection recorded set out
    in

Richardson
, at para. 24
.

[55]

Arguably, it also did not satisfy the present
    voucher as to accuracy condition, given the paramedics acknowledgment that he
    may have been confused at the time, among other things.

[56]

The
    trial judges disposition on whether the statement qualified under the
    principled approach also came down to the unreliability of the paramedics
    account. He stated that I therefore find that [the paramedic]s hearsay
    evidence of what he was told by Christian Sauvé ... does not meet the threshold
    reliability required for admission under the principled exception to the
    Hearsay Rule. His reasons on that ground again focussed on the unreliable
    nature of the paramedics statement, as reviewed above.

[57]

In
    arriving at this determination, he also took into account the fact that,
    although the paramedic was available for cross-examination, cross-examination
    would not be useful or meaningful because the paramedic admitted he had no
    memory of either his statement to the police or of the oral statement made to
    him by Sauvé. The trial judge also considered the principle that a court has a
    residual discretion to relax a strict rule of evidence in favour of permitting
    an accused to call evidence where the justice of the case requires it: see
R.
    v. Folland
(1999), 132 C.C.C. (3d) 14 (Ont. C.A.).

[58]

However,
    in the end, as noted above, the trial judge declined to admit the unreliable
    hearsay evidence of Sauvés statement to the paramedic under the principled
    exception to the hearsay rule on trial fairness grounds. It did not meet the
    threshold reliability required under the principled approach. He also found
    that its probative value was very low and was outweighed by the prejudicial
    effect of presenting such unreliable, untested, and untestable evidence to the
    jury. This was his call, and I see no error in fact or law in the trial judges
    determination on this issue.

[59]

The
    trial judge also relied on the unreliability of the paramedics account when
    disposing of the spontaneous utterance exception to the hearsay rule and in
    determining whether the statement could be used to impeach Sauvés testimony
    under s. 11 of the
Canada Evidence Act
. His conclusions that the
    paramedics statement was not admissible as a spontaneous utterance given at
    the time, and that the statement could not be used to impeach Sauvés trial
    testimony, are supported by the same reasoning referred to above.

[60]

In
    short, the trial judge consistently found that the first level of hearsay  the
    paramedics account of Sauvés alleged statement  was not sufficiently
    reliable to be admissible. On appeal, deference is owed to a trial judges
    determination of threshold reliability for hearsay, unless his or her
    determination was tainted by an error in principle:
R. v. Youvarajah,
2013
    SCC 41, [2013] 2 S.C.R. 720, at para. 31. There was no such error here.

[61]

Accordingly,
    I would not interfere with the trial judges exclusion of the paramedics
    statement for either hearsay use.

D.

Issue #2  the defence of accident

[62]

The
    jury was charged on self-defence under s. 34(2) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which applied at the time of the altercation, and on the
    partial defence of provocation.

[63]

But
    the appellant argues that the trial judge erred by failing to charge the jury
    on the defence of accident as well. Despite not advancing this defence at
    trial, he claims that it had an air of reality. Thus, it ought to have been
    left with the jury.

[64]

In
    particular, he says that the jury should have been charged that the stabbing
    was an unintended act. While he concedes that he intentionally drew the knife,
    his testimony, he says, was essentially that the stabbing was an accident.

[65]

Of
    course, if he accidentally caused Trineers death while intentionally engaging
    in an unlawful and objectively dangerous act, he would still be guilty of
    manslaughter:
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para.
    108. The failure to charge on accident could be said to be harmless then.

[66]

The
    appellant counters by arguing that the act of pulling the knife could be
    justified as self-defence under s. 37 of the
Criminal Code
, rendering it
    a lawful act. If the jury found that the drawing of the knife was a lawful act
    and that the following stabbings were accidental, it would lead to an
    acquittal.

[67]

I
    would dismiss this ground of appeal. In my view, there was no air of reality to
    the defence of accident.

(1)

Facts

[68]

The
    basis for the defence of accident comes from the appellants testimony.

[69]

The
    appellant testified that he ran towards Trineer to punch him. He says that when
    he tried to punch Trineer, one of the bouncers jumped on his back and put him
    in a choke hold. Trineer then, according to the appellant, began punching him
    in the head like a punching bag. The appellant testified that he was afraid
    and having trouble breathing.

[70]

The
    knife came out, the appellant believes, at some point while he was being held,
    with Trineer moving towards him. He claimed to have no idea how Trineer came to
    be stabbed:

Q. Did you intend to strike Mr. Trineer with the knife?

A. No, I just wanted  the other one came out on me, I dont
    know how he got stabbed, I have no idea.

Q. Would you agree that ultimately youre the one who did stab
    Mr. Trineer?

A. I  I cant tell you because me I was struggling, maybe I
    took it out and  I was struggling, I have no idea.

[71]

The
    forensic evidence and other witness accounts provide some further context for
    this ground.

[72]

Five
    stab wounds were found in the deceaseds body. Two were less serious: a
    five-centimetre wound to the right side of the back, and another to the
    top-right upper arm. The other three were in the left side of the chest, and
    were each life-threatening.

[73]

The
    chest wounds caused Trineers death. Two pierced the left lung, one of which
    went twelve centimetres into the chest, causing the left lung to collapse. The
    third chest wound cut through the main blood vessel in the chest, the aorta.
    This wound was not survivable.

[74]

The
    close proximity of the three chest wounds suggested that the deceased did not
    move much between each wounding.

[75]

Of
    all the other witnesses at the trial, only two testified to seeing the physical
    stabbing take place: the bouncers Dominic Séguin-Potvin and Christian Sauvé.
    Séguin-Potvin said that the appellant lunged at Trineer with the knife and
    stabbed him. He said he heard the sounds of the knife going in and out three or
    four times. Sauvé said he saw the appellant make a stabbing motion. He then
    wrapped his arm around the appellant from behind, and grabbed the knife before
    the appellant could stab Trineer again. The other witnesses views were
    obstructed at that moment, or they were not watching the fight at the time.

(2)

Discussion

[76]

The
    air of reality test governs whether a defence should be put to the jury. That
    test provides that the determination of putting a defence to the jury is based
    on whether there is evidence on the record upon which a properly instructed
    jury acting reasonably could acquit:
R. v. Cinous
, 2002 SCC 29, [2002]
    2 S.C.R. 3, at para. 49.

[77]

The
    trial judge must put to the jury all defences that arise on the facts:
Cinous
,
    at para. 51. It does not matter whether an accused advanced such a defence:
Cinous
,
    at para. 51. Nor does it matter if the defence is incompatible with defences
    advanced by the accused: see
R. v. Gauthier
, 2013 SCC 32, [2013] 2
    S.C.R. 403, at paras. 31-34.

[78]

At
    the same time, the trial judge must not put to the jury any defences that lack
    an air of reality:
Cinous
, at para. 51. As Cory J. explained,
    [s]peculative defences that are unfounded should not be presented to the jury.
    To do so would be wrong, confusing, and unnecessarily lengthen jury trials:
R.
    v. Osolin
, [1993] 4 S.C.R. 595, at p. 683.

[79]

In
    this case, the trial judge was correct not to put the defence of accident to
    the jury. It lacked an air of reality.

[80]

As
    the Supreme Court has made clear, a mere assertion by the accused of the
    elements of a defence will not be sufficient to clear the air of reality
    hurdle:
Cinous
, at para. 98. Such is the case here. The defence of
    accident would have required a finding that the appellant stabbed the deceased
    multiple times by accident: see e.g.
R. v. Cornelius
, 2011 ONCA 551, 283
    O.A.C. 66, at para. 47. Yet the evidence at trial provided no such explanation
    as to how that could have happened. The appellants full answer to whether he intended
    to strike Trineer with the knife essentially claimed that he had no memory of
    the stabbing. He offered no evidence for how he accidentally stabbed Trineer
    five times, stating I dont know, I have no idea, and I cant tell you.

[81]

No
    other witness provided evidence that would support this defence. To the
    contrary, the two witnesses that testified about seeing the stabbing both
    described the appellant making stabbing motions towards the deceased.

[82]

In
    my view, a properly instructed jury, acting reasonably, could not accept that
    the stabbings were accidental based on the factual foundation before them.

[83]

Accordingly,
    I would dismiss this ground of appeal.

E.

Disposition

[84]

I
    would dismiss the appeal.

Released: RAB NOV 24 2016

M. Tulloch J.A.

I agree. R.A. Blair
    J.A.

I agree. G. Pardu
    J.A.


