



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carty, 2017 ONCA 770

DATE: 20171005

DOCKET: C59233

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Shawn Carty

Appellant

Michael Dineen, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: September 27, 2017

On appeal from the conviction entered on November 22,
    2013 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with
    a jury.

REASONS FOR DECISION

INTRODUCTION

[1]

Eric Carty was convicted after a jury trial of the first degree murder
    of Kirk Vaughn Matthews. He appeals his conviction on two grounds. He asserts
    that the trial judge erred in admitting, under the principled hearsay
    exception, a statement made by the deceased after he had been shot and shortly
    before his death, in which the Crown contends he identified Mr. Carty, a.k.a.,
    Sniper, as the shooter.

[2]

The second ground of appeal pursued before us was that the trial judge
    erred in law by not giving the jury a no probative value direction regarding Mr.
    Cartys post-offence conduct. A no probative value direction would have cautioned
    the jury not to use Mr. Cartys post-offence conduct in fleeing after he
    learned he was wanted for the shooting of the deceased, to determine the category
    of homicide offence which Mr. Carty may be guilty of.

[3]

We decline to give effect to either ground of appeal.

DISCUSSION

(1)

Admission of Hearsay Statement

[4]

With respect to the hearsay statement, if we were persuaded that the
    trial judge had indeed admitted that statement solely on the footing that the
    jury had sufficient evidence to resolve whether the deceased had a motive to
    falsely accuse Mr. Carty of the shooting, we would have found there to be an
    error on this basis. This is not, however, how we read the admissibility
    ruling. The trial judge held that the statement bore the indicia of reliability
    that grounds the spontaneous statement fixed hearsay exception, but she chose
    not to rely directly on that exception because of evidence about the history of
    animus between Mr. Carty and the deceased. She made this decision
    notwithstanding her conclusion that the defence theory that the deceased could
    have been motivated to falsely implicate Mr. Carty as the shooter was questionable.
    She said specifically:

These issues viewed in the cold light of a courtroom may amount
    to a reason to fabricate. However, when viewed in the context of the rapidly
    unfolding and dramatic events, such a conclusion is not so simple. Here, the
    mind of the deceased must have been still dominated by the shooting. He had
    just been shot in the chest. He said he could not feel his legs. To say that
    under these circumstances he had the motive and opportunity to fabricate is
    questionable.

That said, I do not base my decision on the
res gestae
but rather the principled approach to the admission of hearsay.

[5]

Given that the sole consideration that prevented the trial judge from
    admitting the statement under the spontaneous statement exception was the
    contest about motive to mislead, and that the trial record gave the jury ample
    opportunity to assess the strength of the motive evidence, the trial judge determined
    that the jury had a satisfactory basis to assess the truth of the statement. In
    doing so, the trial judge, in effect, combined substantive reliability factors
    with the capacity of the jury to resolve the key outstanding hearsay issue that
    remained, to find that the threshold for admission had been achieved.

[6]

This reasoning is also problematic. The ability of a jury to explore, using
    other evidence, an issue that could be the subject of cross-examination of the
    declarant is not an adequate procedural safeguard that can substitute for that
    cross-examination.

[7]

That said, we do not rely on the trial judges theory of admissibility
    to determine this issue. Instead, we uphold the admission of the hearsay
    statement on a simpler footing. In our view, once the trial judge found that
    in the context of the rapidly unfolding and dramatic events the mind of the
    deceased must have been still dominated by the shooting, and that the defence fabrication
    theory was questionable, she should have admitted the hearsay statement as a spontaneous
    statement.

[8]

The theory underlying this exception to the hearsay rule was explained
    by this court in
R. v. Khan
(1988), 27 O.A.C. 142 (C.A.), at p. 148, affd
    [1990] 2 S.C.R. 531:

[A] spontaneous statement made under the stress or pressure of
    a dramatic or startling event and relating to such an occasion may be
    admissible as an exception to the hearsay rule. The stress or pressure of the
    act or event must be such that the possibility of concoction or deception can
    be safely discounted. The statement need not be made strictly contemporaneous
    to the occurrence so long as the stress or pressure created by it is ongoing
    and the statement is made before there has been time to contrive and
    misrepresent. The admissibility of such statements is dependent on the
    possibility of concoction or fabrication. Where the spontaneity of the
    statement is clear and the danger of fabrication is remote, the evidence should
    be received.

[9]

We agree that evidence of a sufficiently strong motive to mislead can
    influence whether to find that a statement was made in circumstances where the
    possibility of concoction or deception can safely be discounted. Where,
    however, a trial judge determines that a statement was made when the stress or
    pressure of the act or event is such that the possibility of concoction or
    deception can be safely discounted, or before there has been time to contrive
    and misrepresent, then the presence of a motive to mislead becomes unimportant
    to admissibility. If one is so caught up in the event that, realistically, they
    are not capable of contriving, evidence that they may have a motive to contrive
    against another is immaterial.

[10]

In
    this case, given her factual findings, the trial judge therefore erred in law
    in failing to admit the deceaseds statement under the spontaneous statement
    exception. Once it was determined that the defences motive to mislead theory
    was questionable, and that the mind of the deceased must have been still
    dominated by the shooting, the trial judge should have admitted the statement without
    resort to the principled exception.

[11]

In
    fairness to the trial judge, she may have approached the motive question differently
    had she relied on the
Khan
articulation of the test for the
    spontaneous statement exception, set out above, instead of using a three-part
    test in which the presence of ongoing stress of a dramatic or startling
    event, and the little possibility of fabrication factor are treated as
    distinct components.  In fact, these two components are cause and effect. If
    the presence of ongoing stress of a dramatic or startling event is intense
    enough to still the ability to reflect and contrive, there is little
    possibility of fabrication, since a declarant is too overwhelmed to act on a
    motive to mislead.

[12]

In
    upholding the admission of the hearsay statement on this basis we are mindful
    that there was evidence that, proximate to the time of his identification of
    Sniper as the shooter, the deceased directed that drugs be removed from his car.
    This can be seen as evidence that, contrary to the trial judges finding, the
    deceaseds ability to concoct was not in fact stilled. The question, however,
    is not whether we would have made the same factual finding as the trial judge.
    The trial judge was entitled on the evidence before her to make the finding
    that she did. Absent palpable and overriding error, her finding on this issue
    is entitled to deference from this court. No such error has been demonstrated
    here. We therefore decline to give effect to this ground of appeal.

(2)

Post-Offence Conduct Instruction

[13]

Nor
    did the trial judge err by failing to caution the jury that Mr. Cartys
    post-offence flight had no probative value in determining the category of
    homicide offence he may have committed.

[14]

It
    is true that flight has no relevance on that issue in the circumstances of this
    case. Each and every possible offence was serious enough to motivate flight. As
    the Supreme Court of Canada recognized in
R. v. White
,
2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 38 and 185, however, a no probative value instruction will not always be
    necessary.

[15]

In
    this case, the trial judge made clear to the jury that evidence of Mr. Cartys
    flight was relevant to the issue of his alleged identity as the shooter. Moreover,
    there was no defence objection to the absence of a no probative value direction
    in the jury charge. This is a fair indication that even defence counsel
    recognized that this caution was not required, a conclusion supported by the
    fact that the trial judge mentioned Mr. Cartys flight only when describing the
    identity issue, and did not include it when describing the evidence relating to
    his state of mind. In the circumstances, the prospect that the jury might rely
    on the evidence of Mr. Cartys flight to determine his level of culpability was
    sufficiently remote that a no probative value direction was unnecessary.

[16]

Accordingly,
    this ground of appeal also fails.

DISPOSITION

[17]

The
    appeal is therefore dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.


