



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louangrath, 2016 ONCA 550

DATE: 20160708

DOCKET: C59488

Cronk, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khamea Louangrath

Appellant

Samuel Walker, for the appellant

Andreea Baiasu, for the respondent

Heard: January 6, 2016

On appeal from the convictions entered by Justice
    Catherine D. Aiken of the Superior Court of Justice, sitting with a jury, on
    March 4, 2014, and from the sentence imposed on September 23, 2014, with
    reasons reported at 2014 ONSC 2120.

Tulloch J.A.:

A.

introduction

[1]

The main issue in this appeal is whether hearsay evidence that satisfied
    the past recollection recorded traditional exception to the hearsay rule was
    nonetheless so unreliable that it should have been excluded at trial.

[2]

The appellant was involved in an alleyway beating and parking lot assault
    outside The Drink nightclub in Ottawas ByWard Market.

[3]

The head of security for the nightclub, Tim McCarthy, witnessed the
    alleyway beating. He testified about it at trial, but had no present
    recollection of whether the appellant participated in punching and stomping on
    the victims, Mike Morrice and Brad Fradette.

[4]

The trial judge admitted a portion of an incident report McCarthy prepared
    within a few days after the assault under the past recollection recorded
    exception to hearsay. The admitted portion of that report stated that [t]
he Asian guy from Group A also started punching the other guy from
    Group B
. Evidence of McCarthys basis for identifying the appellant as
    the Asian guy was otherwise provided at trial.

[5]

A jury found the appellant guilty of assault causing bodily harm, and
    two counts of forcible seizure for the alleyway beating. The appellant also
    pleaded guilty to one count of simple assault for his participation in the
    parking lot assault. He was acquitted of two counts of robbery. He received a
    global sentence of three-and-a-half years imprisonment, less credit for
    pre-sentence custody.

[6]

The appellant appeals his convictions and sentence. In addition to his
    challenge of the trial judges admission and use of McCarthys recorded
    recollection, he argues that evidence of a phone call from a person identifying
    himself as the appellant and reporting damage to a white pick-up truck the day
    after the beating was mishandled. Finally, he submits that the sentence imposed
    was manifestly unfit and the result of two errors in principle.

[7]

For the reasons that follow, I would dismiss the conviction appeal. I
    would grant leave to appeal sentence, but dismiss the sentence appeal.

B.

background

[8]

The parking lot assault and alleyway beating took place on April 23,
    2011.

[9]

About an hour before the alleyway beating, Morrice was assaulted in the
    parking lot outside The Drink nightclub. Morrice, Fradette, and another friend
    were standing in a parking spot when a white pick-up truck pulled up. The
    driver asked them to move. They refused. The driver got out of the truck,
    punched Morrice in the face, got back in the truck, and parked nearby. Morrice
    and Fradette could not tell how many people were in the white truck, although
    they saw at least one passenger. The appellant pleaded guilty to participating
    in this assault, although he did not specifically admit that he was the driver
    of the truck or the person that punched Morrice in the face.

[10]

The parking lot assault was reported to police, and an officer attended
    the scene. Morrice led him to the white pick-up, where the officer noted that
    it was a white Ford F-150 truck. A vehicle check showed that it was registered
    to Phouthone Louangrath, the appellants brother.

[11]

Sometime after the officer left, the white truck was vandalized.

[12]

Morrice and Fredette went into The Drink nightclub. A short while later,
    they saw a man they identified as the driver of the white pick-up truck enter
    the nightclub with a group of people, some of whom, like the appellant, were
    Asian males.

[13]

The driver pointed out Morrice and Fradette, and the group started
    moving towards them. Morrice and Fradette were then grabbed and pushed towards
    a side exit and out into an alleyway, with their hands pinned behind their
    backs.

[14]

McCarthy, head of security at The Drink, noticed the appellants group
    when they entered, which he referred to as Group A. He recognized two
    individuals from that group as customers who would regularly come to The Drink
    together. One was a white male, and the other an Asian male. McCarthy would go
    on to identify the appellant as this Asian male, whom he referred to as the
    Asian guy, a few months after the assault in a photo line-up.

[15]

Group A also included several bouncers from a nearby nightclub called
    Industry who were wearing their security shirts, and some other individuals
    that McCarthy did not know or recognize. McCarthy also did not know or
    recognize Morrice or Fradette, whom he referred to collectively as Group B.

[16]

Morrice testified that outside in the alleyway the driver of the truck
    started punching him in the face as two other people pinned him against a brick
    wall. Fradette testified that Morrices head was being driven into the brick wall
    as he was repeatedly punched. Fradette was also punched and pushed, ending up
    on the ground in a turtle position, trying to protect his head while being
    stomped on.

[17]

McCarthy followed the groups into the alleyway. He testified that he saw
    the white guy from Group A sucker-punch one of the individuals from Group B.
    Although he had no present recollection at trial, in the statement he prepared
    days after the assault he recorded that the Asian guy then started punching
    the other guy from Group B. He testified that both individuals from Group B
    were then stomped on by five or six members of Group A. According to McCarthy,
    the Industry bouncers were just watching the beating without helping the
    situation.

[18]

McCarthy intervened, the alleyway beating ceased, and the appellants
    group ran down the alleyway towards the Industry nightclub. As they were
    leaving, the appellant apologized to McCarthy, saying something along the lines
    of sorry, but those guys did $3,000 or $4,000 worth of damage to my truck.

[19]

The next day, an individual who identified himself as the appellant
    called police reporting damage to his white pick-up truck, the same truck
    police observed after the parking lot assault, although the caller specified
    that the truck was registered to his brother.

C.

conviction appeal

(1)

The past recollection recorded grounds  McCarthys statement

[20]

As an out-of-court statement that was tendered for the truth of its
    contents, McCarthys statement was hearsay evidence.

[21]

The admission of hearsay evidence is governed by the following framework
    set out by McLachlin C.J.C. in
R. v. Mapara
, 2005 SCC 23, [2005] 1
    S.C.R. 358, at para. 15, and reaffirmed in
R. v. Khelawon
, 2006 SCC 57,
    [2006] 2 S.C.R. 787, at para. 42, and
R. v. Baldree
, 2013 SCC 35, [2013]
    2 S.C.R. 520, at para. 34:

(a) Hearsay evidence is presumptively inadmissible unless it
    falls under an exception to the hearsay rule. The traditional exceptions to the
    hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether
    it is supported by indicia of necessity and reliability, required by the
    principled approach. The exception can be modified as necessary to bring it
    into compliance.

(c) In rare cases, evidence falling within an existing
    exception may be excluded because the indicia of necessity and reliability are
    lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay
    exception, it may still be admitted if indicia of reliability and necessity are
    established on a
voir dire
.

[22]

In this appeal, the appellant concedes that McCarthys statement
    properly fell within the past recollection recorded traditional exception to
    the hearsay rule. And he does not challenge that traditional exception.

[23]

Rather, he argues that this is one of those rare cases in which the
    evidence should have been excluded because threshold reliability was lacking in
    the circumstances of this case. He also argues that there was a risk that the
    jury misused the portion of the admitted statement that was adduced to provide
    narrative context.

[24]

I do not agree, and would dismiss this ground of appeal.

(a)

Facts

[25]

The significance of McCarthys statement is that it was the only
    evidence from McCarthy that the appellant engaged in any of the punching or
    kicking during the alleyway beating, and McCarthy was the only witness that identified
    the Asian male as being the appellant. Unlike McCarthy, neither Morrice nor
    Fradette were shown a photo line-up. They were only able to identify the
    assailant as the driver of the white pick-up truck.

[26]

At trial, the following portion of McCarthys statement was read into
    the record:

I remember seeing the white guy from Group A all
    of a sudden sucker punch one kid from Group B.
The Asian guy from Group A
    also started punching the other guy from Group B.
So the two kids started
    getting stomped by about 5 or 6 guys from Group A. I believe the Industry guys
    were just watching, I don't recollect them actually fighting anybody but they
    weren't helping the situation. [Emphasis added.]

[27]

The underlined sentence was the portion that was admitted as past
    recollection recorded, while the remaining sentences were read to provide
    context for it.

[28]

Although Crown counsel at trial alerted the appellant and the trial
    judge that he may bring an application to admit this hearsay statement, the
    necessity of doing so did not unfold until McCarthys cross-examination and
    re-examination.

[29]

Initially, in examination-in-chief, McCarthy had testified that the
    appellant was punching and stomping one or both of the two individuals and
    was participating in that. But he said he could not remember more specific
    details, such as the angles or who was doing what.

[30]

When cross-examined, however, McCarthy acknowledged that although he
    could visualize the white guy sucker punching one of the individuals, he
    could not picture exactly what the Asian guy was doing. He did recall that
    both men were there for the punching and stomping that occurred. But, at trial
    three years after the incident, he could not remember the appellants specific involvement
    in the beating.

[31]

On re-examination, McCarthy confirmed that he did not have a present
    recollection of the details of the appellants specific participation in the
    beating and was relying on what he had written in his statement. He clarified
    that he could recall the appellant hovering over one of the individuals at the
    end of the assault, and the appellants comment that the assault was in
    retaliation for the damage done to his truck.

[32]

On a
voir dire
to determine the admissibility of the statement as
    past recollection recorded, the following evidence was provided:

·

McCarthy wrote the statement himself within a few days of the
    incident, probably April 24, 2011, which was the next day, but possibly as late
    as April 28, 2011. He testified the events were fresh in his mind at the time.

·

McCarthy had not spoken with his employer about the incident
    before preparing his statement, other than speaking to his manager the night of
    the incident, when he advised that he would prepare a statement.

·

McCarthy was not under the influence of alcohol when he wrote the
    statement or on the night of the incident.

·

As part of his duty as head of security, McCarthy was obliged to prepare
    such statements for his employer on any incident that occurred under his watch.

·

It was company policy to keep such statements so that they would
    be available for the police. McCarthy realized the police might be interested
    in the incident that evening.

·

The original statement that was being tendered, was typed, clear,
    printed on his home computer, and signed.

·

McCarthy testified that when he prepared the statement he was
    being truthful and the details of the events that he included in the statement
    were clear in his mind. He did not include anything in his statement about
    which he was not clear.

[33]

The trial judge found that McCarthys statement satisfied all four
    conditions for admission of past recollection recorded: it was a reliable
    record, it was prepared in a timely manner, McCarthy provided a present voucher
    as to its accuracy, and it was necessary because McCarthy had a current absence
    of memory.

[34]

Defence counsel also challenged the statements admission on the basis
    that its prejudicial effect outweighed its probative value.

[35]

The trial judge disagreed. She found the evidence was highly probative
    as it was from an independent, uninvolved observer, who had a close vantage
    point, and had use of his full faculties at the time of the incident. She held
    that any prejudice that arose from the appellants inability to fully
    cross-examine McCarthy on his observations at the time of the attack could be
    reduced by instructing the jury that this was a lower form of evidence that
    should be given extra scrutiny, an instruction she would later provide.

[36]

The trial judge noted that defence counsel would still be able to
    cross-examine McCarthy on his vantage point and on the composition of the
    appellants group, including how many of the men were of Asian descent, since
    he had a current memory of those aspects of events. Defence counsel was granted
    the right to cross-examine McCarthy again to explore issues of credibility and
    reliability relating to the content of the statement.

(b)

Discussion

[37]

First, I will address the appellants argument that this is a rare case
    in which threshold reliability was not established even though a traditional
    hearsay exception was satisfied. Then, I will explain why I am not persuaded
    that there was any realistic risk of misuse by the jury of the narrative
    portions of the adduced statement.

(i)

Is this a rare case in which threshold reliability was not met by a
    hearsay exception?

[38]

Four particular reliability concerns arise from the unavailability of
    contemporaneous cross-examination in court, namely the inability to test the
    declarants (i) perception, (ii) memory, (iii) narration, and (iv) sincerity:
Khelawon
,
    at para. 2;
Baldree
, at para. 31.

[39]

In
Baldree
, at para. 32, Fish J. briefly elaborated on these
    concerns as follows:

First, the declarant may have
misperceived
the facts to which the hearsay statement relates; second, even
    if correctly perceived, the relevant facts may have been
wrongly
    remembered
; third, the declarant may have narrated the
    relevant facts in an
unintentionally misleading manner
; and finally, the declarant may have
knowingly made
    a false assertion
. [Emphasis in original.]

[40]

The traditional exceptions to hearsay often address these concerns in
    two ways. The first way is to show that there is no real concern about whether
    the statement is true or not because of the circumstances in which it came
    about:
Khelawon
, at para. 62. The second way is to show that no real
    concern arises from the fact that the statement is presented in hearsay form
    because, in the circumstances, its truth and accuracy can nonetheless be
    sufficiently tested:
Khelawon
, at para. 63.

[41]

These two methods for establishing threshold reliability are not
    mutually exclusive, although when the declarant is available for
    cross-examination, the focus is on the second method, which is demonstrating
    that the truth and accuracy of the statement can be sufficiently tested:
R.
    v. Devine
, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22.

[42]

Meeting the requirements of the well-established past recollection
    recorded hearsay exception will generally be conclusive on the admissibility of
    the tendered evidence, without any further consideration of threshold reliability.
    That is because its essential conditions and the declarants availability for
    cross-examination address the hearsay concerns on reliability.

[43]

The essential conditions for the past recollection recorded exception
    were set out in
R. v. Richardson
(2004), 174 O.A.C. 390 (C.A.), by
    OConnor A.C.J.O., at para. 24, as follows:

1. Reliable record: The past recollection must have been
    recorded in a reliable way. This requirement can be broken down into two
    separate considerations: First, it requires the witness to have prepared the
    record personally, or to have reviewed it for accuracy if someone else prepared
    it. Second, the original record must be used if it is available.

2. Timeliness: The record must have been made or reviewed
    within a reasonable time, while the event was sufficiently fresh in the
    witness's mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or
    she must have no memory of the recorded events.

4. Present voucher as to accuracy: The witness, although having
    no memory of the recorded events, must vouch for the accuracy of the assertions
    in the record; in other words, the witness must be able to say that he or she
    was being truthful at the time the assertions were recorded.

[44]

Three of these conditions are grounded in establishing threshold
    reliability  namely, the reliable record, timeliness, and present voucher
    as to accuracy conditions  while the absence of memory condition addresses
    the necessity of using the hearsay evidence. Significantly, for the admission
    of this type of hearsay evidence, the declarant is able to be tested under oath
    through cross-examination about the circumstances under which the recorded statement
    was made, and on the basis upon which he or she vouches that the recording of
    events is accurate.

[45]

Though not equivalent to contemporaneous cross-examination of present
    recollections, meeting those conditions, together with the declarants ability
    to testify about them, assuage the hearsay reliability concerns such that, when
    necessary, this evidence should be admitted. The trial judge should then
    instruct the jury that this is a lower form of evidence that calls for extra
    scrutiny.

[46]

In this case, the past recollection recorded conditions were met, as
    found by the trial judge. The original record that was tendered, which McCarthy
    wrote himself and signed, was a reliable recording that was made while the
    events were fresh in his mind. And McCarthy vouched for its accuracy. He
    testified that he had no doubt that he recorded his statement accurately and
    that he did not include anything in it about which he was not clear at the
    time. The appellant was able to, and did, test McCarthy on these indicators of
    reliability and other aspects of his testimony.

[47]

A finding that the past recollection recorded conditions are met, as
    occurred here, should be determinative of admissibility in virtually all cases.
    As explained in
Mapara,
at para. 30, an approach that requires trial
    judges to scrutinize pieces of hearsay evidence falling under traditional
    exceptions for reliability concerns in every case would undermine the
    efficiency of those exceptions by allowing them to devolve into a case by case
    vetting more resembling the ultimate reliability inquiry that is for the jury,
    than the threshold reliability inquiry relevant to admissibility.

[48]

Here, the appellant argues that this is a rare case because of the
    following concerns that he says are extraneous to the
Richardson
formulation
    of past recollection recorded: (i) the statement was not made under oath; (ii) McCarthys
    statement may have been tainted by his discussions with other parties, since at
    trial McCarthy acknowledged that he spoke to his manager and possibly others
    before he prepared the statement; (iii) the contents of his statement were so
    vague on the identity of the assailant that it was possible he was filling in
    his memory by misidentifying the Asian guy who threw a punch among the other
    Asian males in the group; (iv) it was a chaotic scene in the alley and it was not
    certain McCarthy had a clear vantage point; and (v) the statement the Asian
    guy from Group A also started punching the other guy from Group B was vague in
    terms of who the other guy from Group B was and what started punching meant.

[49]

In my view, the trial judges finding that the evidence satisfied the
    traditional exception was determinative in this case. There were no special
    reliability concerns that called for a second analysis of the admissibility of
    this evidence under the principled approach.

[50]

The first two of the appellants concerns  no oath and possible
    tainting  are taken into consideration by the past recollection recorded
    exception. The reliability concerns emanating from the lack of an oath are
    mitigated by the declarants testimony under oath that he was being truthful
    and accurate at the time the statement was recorded, and by the trial judge
    instructing the jury that such evidence is a lower form of evidence because it
    was not given under oath. In this case, McCarthy did provide such testimony
    under oath and the trial judge did instruct the jury in that fashion. I note
    also that, in this case, the statement had an additional marker of reliability
    since it was prepared under a legal duty in the ordinary course of the
    declarant's employment.

[51]

Concerns about possible tainting are addressed under the timeliness
    condition. Although this condition was titled timeliness in
Richardson
,
    it is also described as the record made when declarants memory sufficiently
    fresh and vivid to be probably accurate:

see S. Casey Hill, David M.
    Tanovich, Louis P. Strezos,
McWilliams Canadian Criminal Evidence
, loose-leaf
    (2016-1), 5th ed. (Toronto: Canada Law Book, 2013) at para. 21:20.20.50.50.

[52]

Relevant factors for making this determination include whether the
    memory may have been tainted, the state of the declarants mental capacity,
    whether the event observed was routine or exceptional, and whether the
    declarant was under the influence of alcohol or drugs:
McWilliams Canadian
    Criminal Evidence
,
ibid
.

[53]

As OConnor A.C.J.O. emphasized in
Richardson
, at para. 27, The
    appropriate length of time will vary with the circumstances of the case. The
    key is whether the events were fresh in the declarants mind.

[54]

The trial judge acknowledged McCarthys evidence about speaking to
    others before preparing his statement, but did not consider it again in her
    analysis of timeliness. In my view, it was unnecessary for her to do so. There
    was no realistic possibility of tainting established by the evidence in this
    case. The trial judge summarized McCarthys evidence as follows:

He was clear that he had not spoken to his employer about the
    events prior to preparing the statement, aside from speaking to the manager of
    The Drink at The Drink on the night [in question, April 23, 2011], because the
    manager happened to be in his office at The Drink at the time. Mr. McCarthy had
    advised the manager that he would prepare a statement describing the events of
    that evening.

[55]

Of note, the appellant was not inhibited by the hearsay nature of the
    statement in this regard. McCarthy had a present recollection surrounding the
    circumstances of the making of the statement. The appellant had the opportunity
    to cross-examine him about any possible tainting. Yet, there was nothing in the
    evidence to suggest that there were any other parties who might have had an
    interest in falsely or unfairly implicating the appellant such that they spoke
    to McCarthy within a couple of days after the assault to influence his
    statement. Nor was there any evidence that suggested McCarthys memory had been
    tainted, or was not otherwise sufficiently fresh and vivid as to be probably
    accurate.

[56]

I am therefore satisfied that this concern was adequately dealt with
    within the
Richardson
framework for the past recollection recorded
    exception.

[57]

The remaining reliability concerns of vagueness and the witness vantage
    point raised by the appellant were all properly left to the jury as questions
    of ultimate reliability. At trial, McCarthy was cross-examined at length on his
    vantage point during the beating. He had a present recollection of where he was
    during this event, which allowed defence counsel to emphasize to the jury that
    he was right in the middle of the commotion and did not have a clear view.

[58]

And, while the statement [t]
he Asian guy from Group A
    also started punching the other guy from Group B, is vague on its own, it was not
    vague when viewed in the context of McCarthys testimony as a whole. Contrary
    to the appellants submissions, the past recollection recorded was not used as
    identification evidence. Rather, it was used to establish that the individual
    that McCarthy identified as the Asian guy physically participated in the
    assault. McCarthys recognition of the appellant was otherwise established.

[59]

McCarthy recognized the Asian guy as a regular
    customer who came in together with the white guy. And he was able to pick him
    out of a photo line-up. McCarthy did not know or recognize anyone else in the
    appellants group other than the Asian guy and the white male duo, as well
    as the Industry bouncers who wore distinctive shirts with the Industry logo.

[60]

On this point, McCarthy had a present recollection
    about his identification of the appellant in contrast to other Asian males in
    his group. This was the subject of cross-examination at trial. Any concern
    about McCarthys ability to distinguish the appellant from others was then
    properly left to the jury to resolve as a matter of ultimate reliability.

[61]

Along the same lines, I do not share the appellants
    concern about the vagueness of who the other guy was and what started
    punching meant. McCarthy had a present recollection of the white guy
    sucker-punching one of the two victims; there were two people in Group B, so the
    other guy was the one who had not been sucker-punched. In the context of the
    evidence as a whole, it was clear that this was Morrice.

[62]

In addition, given that the hearsay was limited to one
    sentence and that the witness had a present recollection about everything else
    surrounding that sentence, it is hard to imagine how the cross-examination
    would have been any different if McCarthy had testified directly about the
    contents of the sentence in question.

[63]

For these reasons, I am of the view that the nature of the admitted past
    recollection recorded evidence did not raise reliability concerns that needed
    to be addressed under the principled approach to hearsay evidence. It was
    properly admitted under the past recollection recorded exception. I would
    dismiss this ground of appeal.

(ii)

Were the narrative portions of McCarthys statement misused?

[64]

The appellant argues in the alternative that the manner in which the
    past recollection recorded statement was addressed at trial created a risk that
    the jury misused that evidence. He notes that portions of the statement that
    were entered were clearly inadmissible. Worse, in his view, these inadmissible
    portions were prior consistent statements that the Crown used to artificially
    enhance McCarthys credibility.

[65]

While the Crowns submissions on this point appear to have been based on
    a misunderstanding of what exactly was the admitted past recollection recorded,
    I would reject this ground because I do not believe that the appellant was
    prejudiced by the Crowns submissions.

[66]

As noted earlier, the admitted past recollection recorded was just the
    one sentence about the appellant punching one of the victims. The surrounding
    sentences were then read in as narrative to provide context for that sentence,
    without objection from defence counsel.

[67]

Since McCarthy had a present recollection of the events in those
    statements, and testified accordingly, the narrative sentences from his
    statement were not admissible for the truth of their contents. For ease of
    reference, I have reproduced the portion of the statement that was read in at
    trial, numbered the sentences and underlined the impugned portions:

(1)
I remember seeing the white guy
    from Group A all of a sudden sucker punch one kid from Group B.
(2)
The
    Asian guy from Group A also started punching the other guy from Group B.

(3) So the two kids started getting stomped by about 5 or 6
    guys from Group A.

(4) I believe the Industry
    guys were just watching, I don't recollect them actually fighting anybody but
    they weren't helping the situation.


[68]

In his submissions, Crown counsel drew it to the attention of the jury
    that because McCarthy did not remember the details of his statement anymore, this
    piece of evidence required extra scrutiny. He advised the jury that one way of
    giving evidence extra scrutiny is to look for corroboration from other
    evidence. He then went through each of the four statements that were read in,
    and pointed out any corroboration for them provided by other witnesses at trial.
    This was despite the fact that McCarthy actually did have a present
    recollection of the narrative sentences, and thus they did not require extra
    scrutiny. Defence counsel offered no objection to these submissions at trial.

[69]

For the first sentence, Crown counsel pointed out that there was no
    corroboration. He then highlighted, on the actual past recollection recorded
    sentence, that both Morrice and Fradette testified that the appellant punched
    Morrice, although they did so by identifying him as the driver of the white
    pick-up truck. Crown counsel explained to the jury how McCarthy was not just
    identifying any Asian guy, but rather had recognized him as the Asian guy who
    was part of a pair including the white male. On the third and fourth
    sentences, Crown counsel noted that Morrice and Fradette testified that there
    were a number of people involved and accepted defence counsels suggestion that
    some people were just standing at the sidelines.

[70]

While it was technically improper to treat those narrative statements as
    admissible for the truth of their contents, given that McCarthy actually
    testified accordingly, there was no prejudice to the appellant in that regard.

[71]

Importantly, the narrative statements were never compared to McCarthys
    testimony at trial. This was not a case in which the narrative statements were
    used as a prior consistent statement to bolster the credibility of the witness
    in-court testimony on the same evidence.

[72]

Nor did the Crown make any rising tide lifts all boats type of
    argument suggesting that the corroboration of the narrative sentences raised
    the reliability of the past recollection recorded sentence. Rather, the Crown
    sought to offer corroboration individually for all the specific details it
    appears to have mistakenly thought called for extra scrutiny. Based on my
    reading of Crown counsels submissions, I am satisfied that no such misuse
    would have occurred.

[73]

Of course, it would have been preferable for Crown counsel to identify
    the specific passage that required extra scrutiny and address any corroboration
    of the other passages separately. Arguably though, the effect of counsels
    submissions was to suggest that the jury ought to treat the evidence from the
    narrative statements with more caution than was actually due.

[74]

In my view, as a whole, the manner in which the past recollection
    recorded evidence was addressed at trial would not have led the jury to misuse
    it. I would dismiss this ground of appeal.

(2)

The phone call evidence ground

[75]

The appellant submits that the recorded phone call to police the day
    after the alleyway beating, which purported to connect the appellant to the
    white truck, was also mishandled by the trial judge.

[76]

He says that the jury was not properly instructed on the procedure set
    out in
R. v. Evans
, [1993] 3 S.C.R. 653, which calls for the trier of
    fact to first determine whether the statement was made by the accused before
    making any use of that evidence. Had the jury been properly instructed, he
    submits, it is not inevitable that they would have concluded that the appellant
    did in fact make that call. In turn, the phone call evidence would have been
    inadmissible hearsay, and the jury may well have come to a different verdict.

[77]

I disagree. The jury was properly instructed on this evidence and, in
    any event, the identity of the appellant was clear and effectively conceded by
    defence counsel.

(a)

Facts

[78]

The significance of the phone call evidence is that, as noted above,
    Morrice and Fradette identified Morrices assailant in the alleyway beating as
    the driver of the white pick-up truck from earlier that night. This provided an
    alternate route for the jury to identify the appellant, apart from McCarthys
    evidence.

[79]

That phone call took place the day after the assaults, when the Ottawa
    police service non-emergency line received a call from a person identifying
    himself as Khamea Louangrath, the appellant.

[80]

The person provided the same address, date of birth, as well as cell
    phone and home phone numbers as those of the appellant. The purpose of the call,
    he said, was to report the damage done to a white Ford F-150 pickup truck at
    St. Patrick and Cumberland, which is three blocks away from where the truck was
    parked after the parking lot assault.

[81]

The caller indicated that he had only noticed the damage the day after
    parking the vehicle downtown the night before. He also provided the licence
    plate number and added that he had been downtown the night before when he had
    had too much to drink. He explained that he had not wanted to drive home so he
    left the truck there overnight. Specifically, he said that he went to a bar at
    11:30 p.m. the night before and only got back to the truck to find it damaged
    at 12:30 p.m. the next day, just a few minutes before the call.

[82]

The caller then described the damage in some detail, stating that it
    looked like the truck had been scratched, kicked, and hit with a rock, but that
    he did not know who would want to damage his truck. He added that he needed a
    police report number, as requested by his insurance company.

[83]

Within a few minutes, the operator called back to seek clarification
    about the registered owner of the vehicle. The caller again identified himself
    as Khamea Louangrath and stated that the truck was registered under his brothers
    name, whose first name he correctly spelled as Phouthone. He said that he did
    not have his brothers date of birth. Ministry of Transportation records
    confirmed the information provided in the call, including the appellants date
    of birth and address, and the fact that the vehicle in question was a 2008 Ford
    pick-up truck registered to Phouthone Louangrath, who lived at the same address
    as the appellant.

[84]

At trial, in closing submissions before the jury, defence counsel stated
    that, while this was for the jury to determine, the evidence suggested that it
    was the appellant who made the call to Ottawa police reporting damage to the
    truck. Defence counsel argued that the fact that the appellant called the
    police pointed to his innocence, in the sense that someone anticipating
    criminal charges would not volunteer to call the police about a car that was
    not even registered to him, and give them all their correct information.

(b)

Discussion

[85]

The procedure in
Evans
is employed only in situations where there
    is some doubt as to the identity of the declarant who is purported to have made
    the out- of-court statement and some evidence to permit the issue to be put to
    the jury. For those cases, Sopinka J. in
Evans
, at pp. 668-69, set out a
    two-pronged analysis to be followed:

First, a preliminary determination must be made as to whether,
    on the basis of evidence admissible against the accused, the Crown has
    established on a balance of probabilities that the statement is that of the accused.

If this threshold is met, the trier of fact should then
    consider the contents of the statement along with other evidence to determine
    the issue of innocence or guilt.

While the contents of the statement may only be considered for
    the limited purpose to which I have referred above in the first stage, in the
    second stage the contents are evidence of the truth of the assertions contained
    therein.

[86]

In this case, I am satisfied that the trial judge correctly charged the
    jury on the phone call evidence. Although she did not set out both prongs of
    the
Evans
procedure when first discussing the phone call evidence, her
    charge as a whole  functionally instructed the jury on how they should approach
    this evidence.

[87]

First, under the heading videotape and audiotape recordings and
    transcripts, the trial judge instructed the jury that it was for them to
    decide whether or not the person who identified himself in the telephone
    conversation as Khamea Louangrath was one and the same person as the accused.

[88]

Shortly thereafter, under the heading out of court utterances and
    statements of Khamea Louangrath, the trial judge repeated that it was for the
    jury to determine whether the appellant had made any out-of-court statement.
    Then, she instructed the jury that unless you decide that Mr. Louangrath made
    a particular remark or statement, you must not consider it as evidence that
    supports a finding of guilt.

[89]

As noted above, defence counsel effectively conceded that the appellant
    made this phone call when he told the jury that the evidence suggested that he
    had. It is not surprising that he made no objection to the jury charge.

[90]

Nor is it surprising that he would agree that the evidence suggested the
    appellant made the call. The evidence was overwhelming on this point. The caller
    provided not only the appellants correct name, birth date, address, and
    telephone numbers, but also a specific and accurate description of the truck,
    which included the exact model, year and edition, as well as the correct
    spelling of the trucks registered owners name, who was the appellants
    brother. The caller also explained the circumstances that precipitated his call,
    which were that he had been out at a bar in the area the night before and was
    reporting the damages for insurance purposes.

[91]

I would not give effect to this ground.

D.

SENTENCE APPEAL

[92]

The appellant submits that the trial judge made two errors in principle
    when determining the appropriate sentence, and that, in any event, the
    three-and-a-half year sentence imposed was manifestly unfit. While I would
    grant leave to appeal sentence, I would reject the appellants three grounds of
    appeal on sentence, and dismiss the sentence appeal.

[93]

First, the appellant argues that the trial judge placed undue emphasis
    on Morrices traumatic brain injury that resulted from the appellants assault.
    This purported undue emphasis included noting that, because of the permanent
    brain damage, Morrice had reduced cognitive ability, diminished academic and
    work opportunities, and experienced anxiety and depression. Although the
    appellant conceded that he caused the traumatic brain injury, the trial judges
    emphasis on it and the injuries that derived from it was unfair, he says,
    because the injuries were neither an intended nor foreseeable result of the
    attack.

[94]

I disagree. The appellant repeatedly punched Morrice in the head while
    he was in a defenceless position, causing his head to snap back and hit a brick
    wall. He hit him hard enough that his jaw broke in two places, requiring two
    surgeries, and that the jaw be wired shut for six weeks. The appellant intended
    to assault Morrice, and the injuries caused by that assault were entirely
    within the scope of harm foreseeable at the time of the offence. In my view, it
    would have been unreasonable to conclude otherwise. The trial judge was acting
    well within the bounds of her discretion to emphasize the consequences of the
    assault to the extent that she did.

[95]

Second, the appellant argues that the trial judge erred in principle by failing
    to consider sentencing authorities when imposing sentence. That is because she
    merely listed the relevant jurisprudence submitted to her and stated that she
    had reviewed all of these authorities. The trial judges failure to
    meaningfully engage with analogous cases, he submits, violated the parity
    principle. In his view, the trial judges reasons ought to have demonstrated
    that she grappled with the parity principle in a meaningful way by comparing
    the cases that she had listed to the case at hand.

[96]

I am unable to agree with this submission.

[97]

Sentencing is a highly individualized exercise whose primary aim is to
    craft a punishment that is proportionate to the gravity of the particular offence
    and the degree of responsibility of the particular offender. While parity of
    sentences is an established principle of sentencing and a desirable objective, one
    that guides a sentencing judges exercise of her broad discretion, it is
    subordinate to the fundamental principle of proportionality:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 2, 54.

[98]

It follows that sentencing precedents alone  either individually or
    through the establishment of sentencing ranges  cannot conclusively determine
    the appropriate sentence in a given case. Rather, the sentences imposed on
    similar offenders for similar offences committed in similar circumstances, from
    which sentencing ranges are derived, provide historical portraits for the use
    of sentencing judges:
Lacasse
, at para. 57. To appreciate those
    portraits, however, does not demand an in-depth comparative analysis in every
    case.

[99]

Here, the trial judge heard the parties submissions on relevant
    authorities, acknowledged considering them, noted the importance of the parity
    principle, yet recognized that she needed to craft a sentence that was
    individualized to the gravity of the offences and degree of responsibility of
    this offender. She was not required to demonstrate further that she considered
    the parity principle by comparing those sentencing authorities to the case at
    hand in her reasons. There was no error in principle in this regard.

[100]

Third, the
    appellant submits that even if this court finds no error in principle, his
    sentence was manifestly unfit and should thus be overturned.

[101]

In my view, the
    three-and-a-half year global sentence imposed was not manifestly unfit. The
    appellant had a high degree of moral blameworthiness for committing these very
    serious offences of assault causing bodily harm, two forcible seizures, and common
    assault. Although the appellant was only 23 years old at the time of the
    offences, was a productive member of the community, had family support, and
    expressed remorse and assumed responsibility for his actions at the sentencing
    hearing, the following factors amply support the trial judges disposition:

 This was a vigilante crime of revenge;

 The appellant led a group of men in intimidating, seizing and
    attacking Morrice and Fradette;

 The forcible seizure and the attack were premeditated;

 The appellant punched Morrice when he could not defend
    himself as his arms were being held by the appellants accomplices;

 Despite Morrices head repeatedly hitting a brick wall, the
    appellant did not stop punching him in the head;

 Morrice suffered significant injuries, including permanent
    impairment of some of his brain functions; and

 The appellant was serving a conditional sentence when he committed
    the present offences.

[102]

The sentences
    recently affirmed by this court in
R. v. Brouillard
, 2016 ONCA 342, a case
    with circumstances similar to this one, support that the sentence imposed in
    this case was not manifestly unfit.

[103]

In that case,
    Brouillard and his co-accused Tang were convicted of aggravated assault after each
    struck a defenceless victim in the head once after escorting him outside of a
    bar, causing a traumatic brain injury. Brouillard was sentenced to
    three-and-a-half years imprisonment, and Tang to three years imprisonment.

[104]

Brouillard and
    Tang were convicted of aggravated assault, and I note that the appellant
    complains that the trial judge overly relied on sentencing precedents that
    featured convictions for aggravated assault, when the appellant was convicted
    of assault causing bodily harm, a lesser offence.

[105]

In my view, when
    an accused is convicted of assault causing bodily harm that results in serious
    injuries, the two offences are highly analogous. That is because aggravated
    assault and assault causing bodily harm have the same essential elements and
    differ only in the nature of the injury caused by the assault  namely, aggravated
    assault specifically requires a wounding, maiming, disfigurement or
    endangerment of life: see e.g.
R. v. Palombi
, 2007 ONCA 486, 222 C.C.C.
    (3d) 528, at para. 39.

[106]

Since I conclude
    that the trial judge did not err in principle or impose a manifestly unfit
    sentence, I would accordingly not interfere with the sentence imposed.

E.

DISPOSITION

[107]

For these
    reasons I would dismiss the conviction appeal. I would grant leave to appeal
    sentence, but dismiss the sentence appeal.

Released: July 8, 2016 (E.A.C.)

M. Tulloch J.A.

I agree. E.A. Cronk J.A.

I agree. R.G. Juriansz J.A.


