



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Borel, 2021 ONCA 16

DATE: 20210112

DOCKET: C62693

Lauwers, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark
    Anthony Borel

Appellant

Philip Norton, for the appellant

Philippe G. Cowle, for the respondent

Heard: November 30, 2020 by video conference

On appeal from the conviction entered by
    Justice Linda M. Walters of the Superior Court of Justice, sitting with a jury,
    on May 22, 2014, and from the sentence imposed on August 15, 2014.

Nordheimer J.A.:

[1]

Mr. Borel appeals from his conviction for
    attempted murder. He also seeks leave to appeal the sentence of 19 ½ years imposed
    upon him. For the reasons that follow, I would allow the conviction appeal and
    order a new trial. As a consequence, I do not reach the sentence appeal.

Background

[2]

In September 2010, the appellant and the complainant
    began an affair. The complainant was married and lived with her husband and her
    teenaged children. The appellant was not married and lived with the mother of
    his children in a platonic relationship. In December 2010, the complainants
    husband found out about the affair. The complainant told her husband that it
    was over, but in fact she continued the affair. The complainant, who had a
    drinking problem, began to drink more heavily.

[3]

At trial, the evidence of the complainant and
    the appellant differed as to the state of their relationship in July 2011. Each
    claimed to be the one trying to end it. On July 23, 2011, sometime around 6:00
    pm, the complainant left her house telling her husband that she was going
    shopping and then to a friends house. The story was a lie. The complainant was
    actually going to meet the appellant.

[4]

The complainant and the appellant met in the
    parking lot of a community centre. The appellant arrived first. A little before
    6:45 pm, the appellant called 911. When the police and EMS arrived, the complainant
    was lying on the ground in the parking lot very badly burned. The appellant and
    some passersby were with her. The complainant smelled of gasoline.

[5]

The appellant initially told the paramedic that
    he was driving past the community centre and noticed his friend in the parking
    lot. In contrast, he told the police officer at the scene that he did not know who
    the complainant was. He later told the police officer that he did know the complainant
    and that they had arranged to meet that evening. Later that evening at the
    police station, the appellant gave a videotaped statement to the police. Four
    days later, the appellant was arrested and charged with attempted murder. He then
    gave another, more detailed, videotaped statement to the police. Throughout his
    interactions with the police and others, the appellant consistently denied
    having doused the complainant with gasoline and setting her on fire.

[6]

At trial, the complainant gave evidence about
    her relationship with the appellant. According to the complainant, there were a
    lot of trust and jealousy issues. She said that the appellant started getting
    physically and verbally aggressive. She described an incident in October or
    November of 2010 where the appellant grabbed her around the neck and strangled
    her to the point that she could not breathe. In response, she kicked him. He
    then let go but grabbed her by the arms leaving bruises.

[7]

The complainant told her husband that the affair
    was over in December 2010 but it continued into 2011, although the complainant
    testified that it was getting harder and harder to sneak around. According to
    the complainant, the appellant was getting more aggressive and wanted her to
    leave her husband.

[8]

The complainant testified about a second violent
    incident sometime in January or February 2011 when she and the appellant were
    at a motel. She testified that the appellant took her phone and saw that she
    had been talking to a male friend. The appellant became jealous and aggressive
    and proceeded to smother her head and face with a pillow.

[9]

The appellant gave evidence at trial and denied
    that either of these violent incidents had occurred. The appellant testified
    that he did see marks on the complainant, who told him a few times that she was
    fighting with her husband.

[10]

In early 2011, the complainant got pregnant with
    the appellants child. She terminated the pregnancy in April. Following the
    abortion, she and the appellant stayed together in a hotel for a number of days.
    The complainant did not think she told her husband at the time about the
    pregnancy. She and the appellant also got similar tattoos in memory of the
    baby. Each testified that it was the others idea.

[11]

Following her abortion, the complainant kept
    seeing the appellant. The complainant testified that she cared for the
    appellant and was scared to leave because she knew there would be consequences.
    In May 2011, she suggested that they should end it. She said that the appellant
    seemed upset but accepting. Afterwards, however, the complainant received
    several emails from the appellant stating, fuck you baby killer, you fucked
    with the wrong guy, wait till the real fireworks start, and I fucking hate
    you. The appellant testified that they argued a lot, but it was mostly over the
    complainants excessive drinking.

[12]

Sometime in March to June 2011, the complainant
    told her husband that she did not love him anymore and that she wanted to move
    out. During the time after her abortion, the complainant drank heavily. She was
    depressed. The complainant once told her husband that she was going to take all
    the sleeping pills. Her husband thought that this was a dramatic gesture to
    make him feel guilty.

[13]

On July 23, 2011, the day of the incident, the complainant
    testified that she met the appellant at Rockway Community Centre. She left home
    around 5:50 pm. She had been drinking and admitted that it was possible that
    had she had alcohol in the car with her. The appellant was already present in
    the parking lot when the complainant pulled up at the community centre. They
    both got out of their cars and were standing in the parking lot. According to
    the complainant, the appellant told her that he had a present in his car for
    her. He proceeded to walk to his car and then walked back to her location with a
    black jug full of gas. The appellant started swishing the gas at the complainant.
    He took a match out of his pocket and threw it at her, setting her on fire.
    According to the complainant, the appellant stood there with his arms crossed
    and said, fuck you bitch, you mess with the wrong peoples feelings and youll
    pay.

[14]

The appellant acknowledged arriving at the
    community centre. He arrived first. When the complainant arrived, the appellant
    said that he knew right away that she had been drinking. The appellant said
    that he immediately got upset and asked her why she was drinking again. He told
    her that he did not want her driving to her friends home, which is where the complainant
    was intending to go after meeting the appellant. The complainant told the
    appellant that she could drive to the friends home on her own. The complainant
    and the appellant continued to argue about her drinking and driving. The appellant
    told the complainant that, if she refused to take a ride from him or call
    someone else, he was going to call the police. The appellant said that he had
    done this before.

[15]

The appellant went back to his car to make a
    call. He then heard a scream. This was approximately 10 minutes from the time the
    complainant had arrived at the community centre. He thought the complainant was
    just trying to get his attention. The appellant glanced over his shoulder and
    saw the complainant enter a trail that leads from the parking lot. She was screaming
    loudly. The appellant then ran to the trail and found the complainant lying
    face down and kind of rolling around. She appeared to be burning. The complainant
    rolled over. The appellant saw that she was burnt. He asked her What happened?
    Who did this? She was screaming and replied nobody. The appellant testified
    that it was horrifying and that he did not know what to think. He helped the complainant
    up and back to the parking lot and then called 911.

[16]

While waiting for the police to arrive, the
    appellant says that the complainant kept getting up and wandering towards the
    road. While waiting for the police, the complainant pleaded with the appellant
    not to tell the police who she was. The appellant repeatedly asked her: Did someone
    do this to you? Did somebody attack you or something? The complainant answered
    nobody.

[17]

Prior to the arrival of the EMS and the police,
    several people driving by stopped to assist. One testified that the appellant
    said he did not know the woman or know what happened. Another testified that
    the appellant said he did not know what happened and that he had made
    arrangements with the complainant to go hiking and that he arrived to find her
    in that state. A third testified that the appellant said that he did not know
    who did this and was supposed to meet the complainant. The appellant was on the
    phone to 911 while the on-scene witnesses were present.

[18]

The police and EMS arrived. The appellant told
    EMS that he had been driving by and noticed his friend in the parking lot. He
    told them that he knew her and told them her name. However, the first officer
    on scene said that he asked the people present, including the appellant, if
    they knew the complainant. Everyone, including the appellant, stated that they
    did not know who the woman was. The appellant testified he did this because of the
    complainants request, prior to the police attending, not to say her name. Upon
    being questioned by the same officer, the complainant also refused to tell him
    her name. The appellant later told the officer and EMS personnel the complainants
    name and that she was a friend of his and that they were supposed to meet
    there. He handed the officer a set of keys, a lighter and matches  telling the
    officer that they were in the complainants hand and that they belonged to her.
    He also told the officer that the complainant was not his girlfriend but had
    met up with her because she was an alcoholic needing support.

[19]

A five-hour search of the immediate area at the
    community centre by a number of police officers did not reveal any evidence of
    an accelerant container. An expert in the behaviour of gasoline and ignition
    source testified that if one swished gas in a backward motion (as described by the
    complainant), one would expect a transfer of gasoline onto that persons clothes
    and shoes. One would also expect to find some gasoline on the ground. The appellants
    clothes (t-shirt and shorts) were tested for gasoline. They showed no traces of
    gasoline. There was no odour of gasoline around the appellants car. However,
    there was a strong odour of gasoline in the complainants car - gasoline was
    located on the drivers seat of the complainants car, in her purse, and in a
    cup holder.

[20]

The appellant denied throwing gasoline on the complainant
    and setting her on fire. He was unsure how the fire was caused. He denied that
    he went to the location with the intention of harming the complainant.

Issues

[21]

The appellant raises three issues on his conviction
    appeal:

1.

The trial judge erred in erred in
    admitting opinion and demeanor evidence of the 911 dispatcher and in failing to
    give a limiting instruction to the jury regarding that evidence;

2.

The trial judge erred in admitting opinion
    and demeanour evidence of the homicide detective, who conducted the second
    videotaped interview of the appellant, and in failing to give a limiting
    instruction to the jury regarding that evidence; and

3.

The trial judge erred in admitting
    statements that the complainant made to EMS personnel during the ambulance ride
    to the hospital and in failing to properly instruct the jury as to the proper
    use of those statements.

Law and analysis

(1)

The 911
    dispatcher

[22]

In terms of the
    first ground of appeal, the 911 dispatcher gave evidence at trial. The Crown
    played the 13-minute 911 call. Then, following a few brief introductory
    questions, the Crown began his examination-in-chief by asking the dispatcher,
    given her experience: was there anything unusual about this, about this particular
    [911] call. The dispatcher testified that, in her opinion, the call she
    received from the appellant was weird. The dispatcher noted that the appellant
    initially stated that the patient was assaulted and then later in the call said
    she had been burned. Further, the dispatcher found it odd that if the appellant
    had just come upon the patient, who was unable to communicate, why would he not
    have just told her that the patient was burned rather than assaulted.

[23]

The dispatcher
    also told the jury that, in her opinion, while the appellant stayed at the
    scene, he didnt really help or ask the patient any questions that the
    dispatcher needed answered.

[24]

The Crown then
    re-played the 911 call and asked the dispatcher to point out, in her opinion,
    the point that [she] found unusual or troublesome. Throughout the 13-minute
    recording, the dispatcher requested the tape be stopped several times. Each
    time she identified portions of it for the jury that she found unusual and
    troubling, including that the appellant gave answers to questions that he
    should not know without asking the patient and that it was weird that the appellant
    did not initially say the patient was burned.

[25]

Trial counsel
    did not object to the dispatchers evidence regarding her interpretation of the
    911 call or her opinion as to the appellants actions or inactions. Trial
    counsel did cross-examine the dispatcher.

[26]

It is a
    fundamental principle of our trial process that the ultimate conclusion as to
    the credibility or truthfulness of a particular witness is for the trier of
    fact. It was improper for the Crown to elicit what was, in essence, opinion
    evidence as to the appellants truthfulness from the dispatcher because it is
    not proper for a witness to give an opinion about the credibility of any other witness:
R. v. Marquard
, [1993] 4 S.C.R. 223.

[27]

Much of the
    dispatchers evidence might have been elicited by the Crown in a proper fashion,
    by questions that avoided having the dispatcher express her opinions about the
    appellant. In other words, the Crowns questions could have been restricted to
    asking the dispatcher factual questions as to what had occurred, leaving it to
    the jury to draw their own conclusions regarding the appellants actions.

[28]

The trial judge
    ought to have curtailed this line of questioning. She also should have
    instructed the jury on the use to which they could put the dispatchers
    evidence, including instructing them not to consider the dispatchers opinions.
    She should have reminded the jury that it was their job alone to consider and
    reach conclusions on the credibility of every witness. None of this was done.

[29]

That said, I
    do not view this error, by itself, as being serious enough to warrant a new
    trial, especially in light of trial counsels failure to object or request a
    jury instruction about it. The failure to object to inadmissible evidence or to
    request a jury instruction is not determinative, but it is relevant to the
    treatment of the objection on appeal:
R. v.
    L.K
.,
2020 ONCA 262, at para. 15.

(2)

The homicide
    detectives evidence

[30]

As one of his
    last witnesses, the Crown called the homicide detective, from the Niagara
    Regional Police, who had conducted a three-hour interview of the appellant. In
    introducing the homicide detective to the jury, the Crown elicited evidence
    from him that he had worked as a police officer for 27 years and was assigned
    to the major crimes/homicide unit as an investigator. In his evidence, the
    homicide detective highlighted his extensive training with respect to
    interviewing and interrogating people in custody. He made a point of telling
    the jury that he had interviewed approximately 500 accused persons during his
    17 years as a criminal investigator. Once again, the Crown did not seek to have
    the homicide detective qualified as an expert witness.

[31]

The homicide
    detective testified that, in preparation for the interview of the appellant, he
    had staged an area of the police station in which he set up a number of
    surveillance photographs on an investigation board in an office. Upon his
    arrival at the station, the appellant was placed in a seat adjacent to this
    staged room, where he could see the investigative photos for approximately 30
    seconds, before he was moved to another location. According to the detective, the
    purpose of this technique was to project to the appellant that an extensive
    investigation has taken place before his arrest.

[32]

The Crown played
    the three-hour interview for the jury. Thereafter, the Crowns very first
    question to the homicide detective was: what did [he] find unusual about the
    video [interview of the appellant]? The homicide detective responded that he
    found three major thingsunusual:

·

First, the appellants
    general demeanour and body language was inconsistent with someone in custody
    for attempt murder;

·

Second, the appellants
    version of events changed throughout the interview; and

·

Third, the appellants
    denials [about being involved in the crime] were relatively weak.

[33]

The Crown then asked the homicide
    detective to expand on his opinion that the appellants denials were relatively
    weak. In response, the homicide detective said:

From my experience
    and training, if

someones
    in custody for an offence, a serious offence that they, that they did not
    commit, they would, they would likely be denying it strongly and asking why
    theyre in custody.

[34]

The Crown then played several clips from
    the interview. The Crown asked the homicide detective to comment on whether he
    could identify: (1) any internal inconsistencies within the interview and (2)
    any other inconsistencies by comparing the interview with other information the
    homicide detective knew about prior to interviewing the appellant. During this
    portion of his evidence, the homicide detective offered his opinion about the
    differences he identified in the appellants versions as ones that were
    subtle, butimportant.

[35]

Trial counsel once
    again did not object to the homicide detectives evidence. Nor did trial
    counsel cross-examine the homicide detective. Also, the trial judge did not
    question the route of admissibility of the homicide detectives opinion
    evidence or provide the jury with directions as to its proper use, if any.

[36]

As was the case
    with the 911 dispatcher, this opinion evidence ought not to have been elicited
    by the Crown. However, unlike the evidence of the 911 dispatcher, this evidence
    could not have been properly elicited and it was highly prejudicial. As this
    court observed in
R. v. Quazi
, 2014 ONCA 94, at para. 7:

We also observe that
    the trial judge permitted the jury to hear the opinion of another police
    officer who characterized the appellant's demeanour during his police interview
    as indicative of guilt. Such an opinion was irrelevant and should not have been
    permitted. Its intrusion into the trial record was highly prejudicial and
    contributed to the overall unfairness of the appellant's trial.

[37]

Demeanour evidence is, itself, highly
    suspect:
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.),
    at para. 27. For a jury to hear, from what appeared to them to be a highly
    experienced police officer, evidence that the appellant was, in essence, acting
    like a person who was guilty of the offence, was highly prejudicial. It was
    only made worse by the failure of the trial judge to give any form of limiting
    instruction on its use. The trial judge ought to have told the jury to ignore
    the detectives opinions.

(3)

The EMS
    evidence

[38]

At trial, the Crown sought and received a
    pre-trial ruling permitting it to lead evidence of the complainants out of
    court statements to an EMS attendant, who was accompanied by two firefighters, in
    the ambulance that transported the complainant to hospital. The EMS attendant
    testified that the complainant had said that she did not want to die and that
    he had done this to her. The EMS attendant further testified that the complainant
    said it was unsafe to disclose the attackers name because she was worried he
    would hurt her family.

[39]

Notwithstanding
    the reluctance of the complainant to identify her attacker, the EMS attendant continued
    to press her on the subject. She did so by listing categories of people, such
    as aunt, uncle, husband, etc., who could have done this to the complainant. The
    EMS attendant said that the complainant nodded her head in agreement when the EMS
    attendant suggested boyfriend. She shook her head when asked about other
    people, including husband.

While both firefighters, who were present in the ambulance,
    recalled the complainant saying that he did this to her, neither of them
    recalled the EMS attendant listing possible perpetrators nor did they remember the
    complainants positive response when boyfriend was mentioned.

[40]

At trial, the complainant
    had no recollection of the events in the ambulance. The trial judge ruled that her
    statements were admissible.
[1]
However, the basis for the ruling is confused.
    The Crown had sought admission of the statements (including the head nodding) pursuant
    to the principled exception to the hearsay rule, encapsulated in
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, on two bases. One was that they
    formed part of the narrative. The other was to rebut a possible defence that
    the incident was the result of a suicide attempt or an accident. Towards the
    end of her reasons, the trial judge said:

It is also important
    to note that the Crown is not asking that the statements be admitted for the
    truth of their content, but simply as part of the narrative as it unfolds, and
    in order to rebut any presumption raised by the defendant that this burning was
    accidental or caused by [the complainant] herself.

[41]

The problem with the trial judges
    acceptance of the Crowns position is that it does not coincide with the actual
    purpose for admitting the evidence, at least on the second stated basis.
    Insofar as the evidence was being admitted to rebut accident or suicide, it
    could only achieve that purpose if the evidence was admitted for the truth of its
    contents, which would carry with it the risk that the jury would also use it as
    confirmation on the issue of identity.

[42]

There is
    another confusing aspect of the trial judges ruling. Early in her reasons, the
    trial judge held that the actions of the complainant, in shaking her head or
    nodding, were not statements, and thus were not hearsay. She said: However,
    any actions observed by someone else, in this case, the emergency care
    personnel, are not hearsay, and [the EMS attendant] is free to testify about
    what she says she observed [the complainant] do. Consequently, the trial judge
    held that those actions were admissible without any hearsay analysis. The respondent
    admits that this latter finding is clearly wrong. Hearsay typically consists
    of spoken words. It can, however, consist of conduct.:
R. v. Badgerow
, 2014 ONCA 272, 119 O.R. (3d) 399, at para. 106, leave to appeal refused,
    [2014] 3 S.C.R. v. The same point is made in
Khelawon
, at
    para. 34: hearsay evidence includes communications expressed by conduct.

[43]

Unfortunately,
    the issue became even more confused when it reached the stage of the
    instructions to the jury. The trial judge first told the jury that they had
    heard the evidence about the statements for the two purposes stated above but
    not to prove that what she said is true, but only to establish that the
    statements were made. However, only a short time later, the trial judge told
    the jury:

If you decide that
    [the complainant] did make these statements, you may consider that evidence in
    deciding whether or not [the complainant] would have made these statements if
    her injuries were self-inflicted or occurred as a result of an accident.

In determining how much or how little you will
    rely on this evidence, to help you decide this case, you may consider that it
    may be less reliable than other evidence that has been given. [The complainant]
    has no memory of this point in time. Accordingly, she was not subject to cross-examination
    on this issue. At the same time, you may consider whether there is any evidence
    to suggest a motive on the part of [the complainant] to lie to the emergency
    responders.

It is evident
    that, at this point in her charge, the trial judge is clearly indicating to the
    jury that the evidence can be used for the truth of its contents.

[44]

Further, the
    critical piece of evidence arising from this issue is the evidence of the complainant
    apparently nodding in the affirmative when she was asked whether the attacker
    was her boyfriend. The trial judge did not isolate this piece of evidence in
    her instructions to the jury and, consequently, she did not give any cautionary
    instruction to the jury about its use, presumably because she continued to view
    it as direct evidence and not as hearsay.

[45]

Yet, this
    evidence went to the central issue of the identity of the attacker and was the
    evidence that carried with it the highest danger of misuse. This fact is
    important because evidence is admitted for a purpose, and that purpose must be
    clearly identified. Here the Crown was tendering the evidence that the
    complainant nodded her head in response to questions in order to prove the
    identity of the appellant as her attacker even though the Crown had the direct
    evidence of the complainant on this point.

(a)

The principled
    exception

[46]

As I have
    already said, the complainants statements, including the head nodding, were
    hearsay. Their admissibility ought to have been reviewed under the principles
    that apply to the admission of hearsay evidence. In the circumstances of this
    case, none of this evidence was admissible for either of the purposes it was
    offered by the Crown. More specifically, it was not admissible under the
    principled exception to the hearsay rule for the truth of its contents as a
    positive identification of the appellant as the complainants attacker. For
    that purpose, the evidence does not fit within the principled exception because
    the evidence does not meet the twin requirements of necessity and reliability. I
    would reject trial counsels concession and the trial judges conclusion that all
    of this evidence, including the head nodding, met the necessity requirement. I
    note that the trial judge separately concluded that the necessity requirement
    was established for the utterances.

[47]

The only
    purpose for admitting the specific evidence of the head nodding was to prove,
    or help prove, that the appellant was the person who committed the attack. However,
    it was not necessary for this evidence to be admitted for that purpose. While
    the complainant may not have remembered the events in the ambulance, as
    recounted by the EMS attendant, the complainant was available to give evidence about
    the actual event and she identified the appellant as her attacker. Indeed, she
    did so at the very first opportunity after she awoke from a coma that resulted
    from her injuries. There was, therefore, no need for this evidence to fill any
    evidentiary gap on that central point. Because the necessity requirement could
    not be met, the only purpose for admitting this evidence was as a prior
    consistent statement by the complainant to buttress her evidence as to the
    identity of her attacker. Prior consistent statements are presumptively
    inadmissible because they lack probative value:
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

(b)

The narrative
    exception

[48]

My conclusion
    that this evidence, especially the nodding of the complainants head, was
    inadmissible hearsay is not altered by attempting to have it admitted as part
    of the narrative. The simple fact is that there was no need for this evidence
    to be admitted for that purpose. No part of outlining the narrative or chain of
    events for the jury required its admission. The only part of the narrative that
    was involved at this stage was the transportation of the complainant to the
    hospital. That part of the narrative could have been adequately conveyed
    without any reference to this evidence. On this point, narrative is too often
    used by counsel, supported by trial judges, as a vehicle for the admission of
    evidence that is otherwise inadmissible and prejudicial. The practice of using
    this route to admit prejudicial evidence must stop because this error will
    often lead to the requirement for a new trial, with the resulting hardships and
    expense that inevitably flow. Trial judges must be alert to the potential for
    such misuse and be on guard to bar this door.

(c)

Spontaneous
    utterance

[49]

On appeal, the
    respondent also attempts to justify the admission of this evidence as being
    part of the
res gestae
. This basis for admitting any of this
    evidence was not advanced at the trial. It is generally problematic to consider
    a basis for the admission of evidence that was not dealt with at trial,
    especially when the basis for admission rests on necessary factual findings
    that were not fully explored.

[50]

The modern expression
    for the 
res gestae
 exception to the hearsay rule is
    spontaneous utterance:
R. v. Nurse
, 2019 ONCA 260, 145 O.R. (3d) 241, n. 2. There
    is serious criticism of the use of the term 
res gestae

to describe this exception. Indeed, the
    authors of James H. Chadbourn, ed.,
Wigmore
    on Evidence
,
vol. 6

(Toronto: Little, Brown and
    Company, 1976), at §1767, p. 255., have this to say on the use of the term:

The phrase res
    gestae has long been not only entirely useless, but even positively harmful.
    Even if there were no accepted name for one or another doctrine, any name would
    be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty
    of decision.

[51]

That said, I do not accept that the
    evidence could be properly admitted on the basis of spontaneous utterance
    because, on the evidence before us, there was nothing apparently spontaneous
    about the complainants conduct regarding the list of categories of possible attackers.
    Rather, the nodding or shaking of her head was the result of repeated
    questioning by the EMS attendant  repeated questioning that neither of the
    firefighters recollects having occurred. As Catzman J.A. said in
R. v. Aguilar
(1992), 10 O.R. (3d) 266 (C.A.), at para. 34:

Assuming, without
    deciding, that Ms. Cooper's submission is correct, I do not consider the
    statements in the present case to fall within the spontaneous declaration
    exception to the hearsay rule, for they do not attain the level of spontaneity
    that is an essential element of that exception.
They were made in response to very particular
    questions
. [Emphasis
    added.]

(d)

Recent fabrication

[52]

Lastly, there is the exception of
    admitting the evidence to rebut suicide or accident, in other words, to rebut recent
    fabrication. But, in this case, there was no suggestion of recent fabrication.
    The defence clearly took issue with the complainants claim that she was
    attacked, along with her identification of the appellant as her attacker. Suicide
    or accident were other possible explanations for the incident. With respect to
    those explanations, however, it was never suggested that the complainants
    identification of the appellant as her attacker was triggered by a motive to
    fabricate that arose after the statements to EMS were made. To the contrary, the
    defence position was that the complainant had falsely claimed an attack by the
    appellant from the outset.

[53]

As Hourigan
    J.A. explained in
R. v. Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, at
    para. 28:

For example, where a
    prior consistent statement is admitted to rebut an allegation of recent
    fabrication, it is admitted solely to provide a direct response to the
    suggestion that the witness concocted allegations after a triggering event.

[54]

There was no such triggering event in this
    case. The complainant did not suddenly alter her position and accuse the
    appellant of being her attacker after being confronted with some other fact or
    event. The complainant identified the appellant as her attacker from the first
    moment that she was physically able to do so. The defence did not suggest that a
    discrete event occurred after her attack that caused her to change her story.

The
proviso

[55]

In the final
    analysis, the respondent seeks to avoid the impact of these evidentiary errors
    by asserting that the
proviso
(
Criminal
    Code
, s. 686(1)(b)(iii))
    can be used to alleviate against their effect.

[56]

The situations
    where the
proviso
is properly utilized to remedy errors made at a trial
    are set out in
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, where Moldaver
    J. said, at para. 53:

Flowing from this
    principle, this Court affirmed in Khan that there are two situations where the
    use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or
    trivial; or (2) where the evidence is so overwhelming that, notwithstanding
    that the error is not minor, the trier of fact would inevitably convict.

[57]

The errors here were not harmless nor
    trivial and the respondent does not suggest otherwise. Rather, the respondent relies
    on the fact that the case was so overwhelming that the result would have been
    the same regardless of the errors.

[58]

I do not agree.
    I do not dispute that the case against the appellant was a strong one, but it does
    not rise to the very high level of being overwhelming. There are questions that
    arise on the evidence, with which the jury would have had to contend, in
    arriving at their verdict beyond a reasonable doubt. Those questions include:

·

How gasoline
    came to be inside the complainants car including in the cup holder?

·

How the appellant, if he threw the gasoline as
    described by the complainant, managed to not get any of the gasoline on his
    clothes or on the ground?

·

What happened to the gasoline container?

·

If the complainant crawled towards the road
    after being lit on fire, as she described, how did her shoes, burned hair, and
    blood stains wind up on a pathway that led from the opposite side of the
    parking lot?

[59]

It cannot, in my view, be said that there is no
    possibility that these questions, taken in conjunction with the appellants
    evidence as to what he says happened, would not have led one or more jurors to
    have a reasonable doubt.

Conclusion

[60]

Unfortunately,
    the evidentiary errors I have discussed infected the fairness of the trial. A
    new trial is required. That result is never a desirable one, but it is
    especially concerning, in this case, given that the events occurred more than
    nine years ago. However, it is a consequence that cannot be avoided.

[61]

I would allow the
    appeal, set aside the conviction, and order a new trial.

Released: January 12, 2021 PL

I.V.B. Nordheimer J.A.

I agree. Peter Lauwers J.A.

I agree. B.W. Miller J.A.





[1]

R. v. Borel
,
    2014 ONSC 2605


