



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoffman, 2021 ONCA 781

DATE: 20211105

DOCKET: C67769

Hourigan, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Hoffman

Appellant

Delmar Doucette and Cara Barbisan, for the appellant

Alexander Alvaro and Daniel Guttman, for the respondent

Heard: June 22, 2021, by video conference

On appeal from the conviction entered on June 19, 2019 by
    Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a
    jury.

Paciocco J.A.:

OVERVIEW

[1]

Following a trial by jury, Gary Hoffman, the appellant, was convicted of
    manslaughter in the beating death of Madad Kenyi.

[2]

The appellant pursues three grounds of appeal before this court. First,
    he argues that the trial judge erred in failing to give a direction pursuant to
    the decision in
R. v. W.(D.)
, [1991] 1 S.C.R 742, relating to
    exculpatory evidence given by key witness Peter Ojha (the 
W.(D.)
direction). Second, he contends that the trial judge erred by misdirecting the
    jury on double hearsay that may have been contained in a 
K.G.B.
statement
    made by Peter Ojha that was admitted into evidence. Finally, he submits that
    the trial judge erred in rejecting his constitutional
ultra vires
challenge to the validity of s. 4(b) of the Ontario
Juries Act
, R.S.O.
    1990, c. J.3.

[3]

At the conclusion of the appellants oral submissions, we dismissed the
    latter ground of appeal, without calling on the Crown. We reserved judgment on
    the first two grounds of appeal.

[4]

The following reasons explain why I would allow the appeal based on the trial
    judges failure to give a
W.(D.)
direction relating to the testimony
    of Mr. Ojha, and on her failure to give a proper double hearsay direction. The
    reasons below also explain why we rejected the ground of appeal relating to the
    constitutionality of s. 4(b) of the
Juries Act
.

MATERIAL FACTS

(1)

The Background

[5]

On the evening of Thursday, September 24, 2015, several people,
    including Madad Kenyi, were in Elmcreek Park in Malton. Mr. Kenyi had been
    drinking heavily that night. He initiated a dispute with others in the park,
    which turned violent. Mr. Kenyi was knocked to the ground and swarmed by an
    undetermined number of people who punched, kicked, and stomped him. Many, if
    not all, of those people had also been drinking heavily. While Mr. Kenyi was on
    the ground, someone struck him with a tree branch (the branch). The beating
    was brutal; Mr. Kenyi sustained various injuries, including multiple blunt
    force injuries to his face and body.

[6]

Tragically, Mr. Kenyi died in the ensuing days from the extensive
    injuries he suffered in the attack, which included a fractured skull that led
    to a fatal subdural hematoma.

[7]

Five people were charged as a result of this horrid incident. After a
    joint preliminary inquiry, all five were committed to stand trial for
    manslaughter. Andrew Ramdass was subsequently discharged, after a successful
certiorari
application resulted in his committal being quashed. Nathan Bell (a.k.a.
    Bugz) pleaded guilty to manslaughter and was sentenced. Brian Nelson and
    Emmanuel Blowes-Serrata were jointly tried and both acquitted. The appellant,
    who was tried alone, elected to be tried by a jury. As indicated, he was
    convicted of manslaughter.

(2)

Empanelling the Jury

[8]

Prior to the jury being empanelled, the appellant brought a
    constitutional challenge to s. 4(b) of the Ontario
Juries Act
, which renders
    ineligible for jury service anyone who has been convicted of an offence that
    may be prosecuted by indictment and has not been pardoned. The appellant submitted
    before the trial judge that this provision is
ultra vires
because it
    is inconsistent with s. 638(1) of the
Criminal Code
, R.S.C. 1985, c.
    C-46. At the time the jury was empanelled, s. 638(1), which has since been
    amended, permitted prospective jurors to be challenged for cause if they had been
    convicted of an offence for which they could be sentenced to a term of
    imprisonment exceeding twelve months. The appellant contended that it is
    necessarily implicit in s. 638(1) that, pursuant to the
Criminal Code
,
    prospective jurors with criminal records are eligible for jury service unless
    challenged for cause. He argued that, as federal legislation, s. 638(1) must be
    given paramountcy.

[9]

The trial judge dismissed the challenge and the jury was empanelled with
    the juror disqualification in s. 4(b) in play.

(3)

Evidence Relating to the Appellants Role in Mr. Kenyis Death

[10]

At
    the appellants trial, it was common ground that Mr. Kenyi initiated the
    altercation and threatened the appellant with a knife. It was also agreed that
    the appellant threw a punch at Mr. Kenyi in self-defence.

[11]

The
    key issue was whether the Crown had proved beyond a reasonable doubt that the
    appellant participated in the subsequent assault in which unnecessary and
    excessive force claimed Mr. Kenyis life. Witness testimony was inconsistent relating
    to whether the appellant had further involvement in the assault, and the nature
    of that involvement. As a result of the inconsistent testimony, the Crown
    pursued alternative paths to conviction. It argued that the appellant was a
    participant in the fatal assault on Mr. Kenyi, either by striking him with a branch
    or by participating in the swarming in which an unknown number of people
    punched, kicked, and stomped him.

[12]

Rigoberto
    Membreno, who had been with Mr. Kenyi prior to the altercation, testified that
    the appellant did nothing to Mr. Kenyi after throwing the initial punch. He
    identified other participants in the assault, including Mr. Blowes-Serrata, who
    he said hit a prostrate and helpless Mr. Kenyi in the face with a branch after
    he had been knocked to the ground.

[13]

Testimony
    that Mr. Membreno gave at a prior trial was also admitted into evidence. The
    appellant and the Crown disagree about the meaning of that testimony. The Crown
    contends that in his testimony at the prior trial, Mr. Membreno said that
    the appellant punched Mr. Kenyi during the swarming. The appellant argues that
    this is a misreading, and that when that prior testimony is interpreted in
    context, Mr. Membreno was not referring to the appellant when he described the
    punch.

[14]

Aretha
    Taylor also testified that Mr. Blowes-Serrata struck Mr. Kenyi with a branch, but
    she said that Mr. Hoffman kicked Mr. Kenyi and joined in the assault with
    others when Mr. Kenyi was on the ground. In other words, her evidence
    incriminated the appellant in the swarming, but not the assault with a branch.

[15]

Mr.
    Blowes-Serrata testified that he saw Mr. Hoffman strike Mr. Kenyi with a branch
    after retrieving a log from a nearby grove of trees. He also testified that the
    appellant kicked, stomped, and jumped on Mr. Kenyis head.

[16]

Andrew
    Ramdass described a circle of approximately ten people forming around Mr.
    Kenyi. He saw a melee in which Mr. Kenyi was being kicked, and saw someone
    strike Mr. Kenyi with a branch, but he could not identify who was involved. He
    said that prior to the attack he saw Mr. Hoffman with a stick, but not the
    branch that he saw used in the assault.

(4)

Peter Ojhas Evidence

[17]

Mr.
    Ojhas evidence was presented both through his in-court testimony and an
    out-of-court police statement he had made which the trial judge admitted
    pursuant to the authority of
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740
    (the
K.G.B.
statement). As I will explain in more detail below, Mr.
    Ojhas in-court testimony was exculpatory, either in its entirety or on the
    material issue of whether the appellant struck Mr. Kenyi with a branch. However,
    Mr. Ojhas
K.G.B.
statement to police was inculpatory, describing the
    appellant as repeatedly striking Mr. Kenyi with a branch.

[18]

Mr.
    Ojha was an important witness. When the jury asked to have his
K.G.B.
statement
    replayed during their deliberations, the trial judge wisely ruled that since
    the Crowns case stands or falls, to a large degree, on Mr. Ojha, the jury
    should hear the pertinent parts of his in-court testimony as well.

[19]

Since
    the rulings relating to Mr. Ojhas evidence are central to the outcome of this
    appeal, I will describe his evidence and how it was secured in some detail.

(5)

The Police Obtain Mr. Ojhas
K.G.B
.
Statement

[20]

On
    the early afternoon of Friday, September 25, 2015, the day after the attack, while
    the police were canvassing for witnesses, they found Mr. Ojha, along with his
    friend Dave. Mr. Ojha, an alcoholic, was badly intoxicated. He smelled of
    alcohol and told the police he was under the influence of OxyContin. He
    admitted to having been present during the attack on Mr. Kenyi. When Officer
    Dawe asked Mr. Ojha about the appellant, Mr. Ojha said, Listen, I am no rat.
    But what happened last night was wrong. He told the police that the appellant
    and Bugz  known to be Mr. Bell  were present at the time of the incident
    and were involved in the assault. He described the appellant, who he referred
    to as G-Money, striking Mr. Kenyi, whom he called the African guy, numerous
    times on the head with a branch.

[21]

Mr.
    Ojha then accompanied officers to the police station where he gave a videotaped
    interview while clearly intoxicated. He was not sworn to tell the truth before
    doing so, nor was he cautioned about the consequences of not telling the truth.

[22]

During
    the interview, Mr. Ojha said that he saw the appellant come out of the bush and
    beat Mr. Kenyi with a large branch. Mr. Ojha illustrated the length of the branch
    by stretching out his arms. He said Mr. Kenyi was on the ground when he was
    struck. Mr. Ojha said that it wasnt pretty and, even though Mr. Kenyi had
    not yet died when the interview took place, Mr. Ojha suggested from the nature
    of the beating Mr. Kenyi had received he was probably dead. Mr. Ojha then picked
    the appellant out of a photo lineup.

(6)

Mr. Ojhas In-Court Testimony

[23]

In
    his in-court testimony, Mr. Ojha referred to the appellant as G. Although his
    out-of-court statement incriminated the appellant as having struck Mr. Kenyi
    with a branch, the testimony Mr. Ojha gave at trial was inconsistent with the appellant
    having done so.

[24]

Specifically,
    Mr. Ojha said that he was sitting in the park during the assault. He said that
    the appellant was sitting a couple [of people] distance from me at the time  about
    two guys down. He said that the deceased yelled out G, I have a knife, or
    something to that effect, which he could hear because the words were spoken to
    G who was nearby. Mr. Ojha was asked whether the appellant did anything in
    response. He said that G was sitting right there, like I said, a couple of
    people from me. Mr. Ojha then testified, I saw somebody pick up a log. I thought
    it was G, but when I looked over G was there  G was sitting down. Mr. Ojha
    said there were people in front of him, and he could not see exactly what was
    going on during the scuffle.

[25]

The
    Crown does not dispute that this trial testimony by Mr. Ojha was exculpatory
    relating to the assault with the branch.

[26]

The
    appellant takes the position that Mr. Ojhas testimony was not only exculpatory
    relating to the assault with a branch, but that it also exculpated the
    appellant from any involvement in the swarming, which was the Crowns
    alternative assault theory. In the appellants view, Mr. Ojha was testifying
    that the appellant was beside him during the entire assault and therefore could
    not have participated in the swarming.

[27]

There
    is support for this interpretation of Mr. Ojhas evidence in what he initially
    said. Mr. Ojha testified that he was sitting having a beer and stayed there
    until the ambulance came after the event. He described seeing a scuffle, with
    everyone running and fleeing in different directions. He was asked what G was
    doing. Mr. Ojha replied, He was sitting a couple distance from me at the time.
    He was then asked whether G got up at any point and leave that spot? He
    said, No.

[28]

The
    Crown disputes that Mr. Ojhas evidence exculpated the appellant from
    participating in the swarming. The Crown submits that, when his evidence is
    read in its totality, Mr. Ojha did not testify to seeing what the appellant was
    doing throughout the entire incident. In support of this position, the Crown
    relies on an answer that Mr. Ojha provided when asked, And when people started
    getting up, do you remember where G-Money went?. Mr. Ojha replied, No, like I
    said, everybody running all over.

[29]

This
    answer by Mr. Ojha is open to interpretation. The series of questions that led
    up to this exchange was directed at a scuffle and then people leaving. The
    appellant argues with some effect that, interpreted fairly, Mr. Ojhas evidence
    was that the appellant did not get up during the scuffle, but that he could not
    recall the appellant getting up after the scuffle when everyone fled.

(7)

Mr. Ojhas
K.G.B
.
Statement
    Gains Admission

[30]

After
    Mr. Ojha failed to replicate in his trial testimony what he had said in his
    videotaped police statement, the Crown brought a successful application
    pursuant to s. 9(2) of the
Canada Evidence Act
, R.S.C., 1985, c. C-5
    to cross-examine Mr. Ojha on that police statement. However, Mr. Ojha did
    not adopt his police statement. He said that he had only a vague memory of
    being approached by the police. He testified he could not remember the specifics
    of what was said and that he had given false witness in his police statement.

[31]

Mr.
    Ojha further testified that when he gave the statement, he was high like a
    kite, and that whatever he said about who did what during the statement was
    all hearsay for me. He denied seeing the appellant grab a branch and strike
    Mr. Kenyi. He testified that he told the police what he thought they
    wanted to hear because he was anxious to leave the police station. He said he
    based what he said on what he had heard from several others, including Dave,
    who had been present during the assault.

[32]

Mr.
    Ojhas disavowal of his prior inconsistent statement led to the Crowns
K.G.B.
application and the ultimate admission of the
K.G.B.
statement into
    evidence. The necessity requirement of the principled exception was met because
    Mr. Ojha recanted the
K.G.B.
statement in his testimony. The trial
    judge held that the procedural reliability leg of the threshold reliability
    requirement to the principled exception was also satisfied. Specifically, she held
    that there were adequate substitutes for testing the statements truth and
    accuracy.

[33]

Relying
    on this courts decision in
R. v. Trieu
(2005), 74 O.R. (3d) 481
    (C.A.), she concluded that the fact that the statement was videotaped, and that
    Mr. Ojha was available for cross-examination, went a long way towards enabling
    the jury to test the reliability of what Mr. Ojha told the police. She reasoned
    that, despite his claim that he had little memory of the event or the
    interview, Mr. Ojhas testimony during the s. 9(2)
voir dire
and
    during the trial showed that he had an adequate memory to enable effective
    cross-examination. Further, jurors could evaluate the impact of his
    intoxication on the reliability of what he was saying by viewing the videotape
    and considering his in-court testimony about his state of impairment. She also
    found that, although Mr. Ojha had not promised or sworn to tell the truth,
    there were clear indications based on comments he made to the police that he
    knew the importance of telling the truth.

ISSUES

[34]

In
    his factum, the appellant raises the trial judges decision to admit Mr. Ojhas
K.G.B.
statement as a ground of appeal. However, this ground of appeal
    was subsequently abandoned. Likewise, the appellants sentence appeal was
    abandoned on November 2, 2020.

[35]

The
    appellant thus pursues three issues on appeal from his conviction:

A.

Did the trial judge err in failing to give a
W.(D.)

direction
    relating to Mr. Ojhas testimony?

B.

Did the trial judge err in failing to give a proper double hearsay
    direction relating to Mr. Ojhas testimony?

C.

Did the trial judge err in denying the constitutional challenge to s.
    4(b) of the
Juries Act
?

ANALYSIS

A.

The
W.(D.)
Direction Error

(1)

The Relevant Principles

[36]

W.(D.)
directions are provided to ensure that jurors properly apply the criminal
    standard of proof when making credibility and reliability determinations
    relating to exculpatory evidence on vital issues, most commonly the essential
    elements of charged offences or applicable defences:
R. v. B.D.
, 2011
    ONCA 51, 266 C.C.C. (3d) 197, at paras. 96-97, 114;
R. v. Charlton
,
    2019 ONCA 400, 146 O.R. (3d) 353, at para. 45.

[37]

In
W.(D.)
, at pp. 757-58, Cory J. offered a standard jury charge for
    communicating the relevant principles:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

[38]

A
    trial judge need not use this standard charge when directing a jury on the
    relevant
W.(D.)
principles:
W.(D.)
, at p. 758;
R. v. J.H.S
.,
    2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. However, the jury direction that
    is used must equip the jury to deal with each of the three reasoning scenarios
    described. Typically, this will require a dedicated
W.(D.)
charge. As
    Binnie J. cautioned in
J.H.S.
, at para. 8, A general instruction on
    reasonable doubt without adverting to its relationship to the credibility (or
    lack of credibility) of the witnesses leaves open too great a possibility of
    confusion or misunderstanding.

[39]

Before
    addressing the application of the
W.(D.)
principles in this case, two
    further preliminary points should be made.

[40]

First,
    although
some
of the propositions articulated in
W.(D.)
refer
    only to the testimony
or
evidence of the
accused
,
    it is settled that the
W.(D.)
principles apply to the evaluation of
    the credibility of exculpatory evidence given by any witness, including Crown
    witnesses:
B.D.
, at paras. 105-14;
Charlton
, at para. 45.
    Therefore, the fact that Mr. Ojha was a Crown witness does not resolve whether
    the
W.(D.)
principles apply to his testimony.

[41]

Second, as this courts decision in
Charlton
verifies,
    if a witness gives exculpatory evidence, a
W.(D.)
direction will be
    required even if that same witness also gives an inculpatory version of events.
    In
Charlton
, a Crown witness, Mr. Clark, gave in-court testimony
    that exculpated the accused. The trial judge also admitted into evidence prior
    statements that Mr. Clark had provided in his preliminary inquiry testimony
    that incriminated the accused. Even though Mr. Clark had given both an
    exculpatory and an inculpatory version of events, this court held, at paras.
    44-49, that the trial judge erred in failing to provide a
W.(D.)
direction
    relating to the exculpatory testimony that Mr. Clark provided.

[42]

Similarly, in this case,
if

Mr. Ojha gave exculpatory evidence, the fact that he also gave
    incriminating evidence would not remove the need for a
W.(D.)
direction.

(2)

The Pre-Charge Conference and the Charge

[43]

During
    the pre-charge conference, both the appellants trial counsel and the trial
    Crown agreed that a
W.(D.)
direction was required relating to the
    testimony of both Mr. Membreno and Mr. Ojha. The trial judge said, You have to
    leave that with me and Ill do my best on the
W.D.
 She ultimately
    gave a
W.(D.)
direction with respect to Mr. Membrenos testimony, but
    not Mr. Ojhas. In my view, she erred in making that decision.


(3)

The Error Explained

[44]

It
    is convenient to explain the
W.(D.)
error by addressing, in turn, the
    three arguments the Crown has made in response to this ground of appeal.

The requirement to provide an express
W.(D.)
direction

[45]

First,
    the Crown submits that a
W.(D.)
direction is required only if the jury
    is faced with an either/or choice between competing narratives on vital
    issues  one inculpatory and the other exculpatory. The Crown argues that Mr.
    Ojhas testimony did not provide an exculpatory narrative since, at best, a
    jury could infer from his testimony only that the appellant was not the person
    who struck the deceased with a branch. The Crown argues that, since Mr. Ojhas
    evidence does nothing to rule out the appellants guilt as a participant in the
    swarming, his testimony is not exculpatory evidence, and therefore no
W.(D.)
direction was required.

[46]

I
    will begin, for the sake of analysis, by assuming that the Crowns
    interpretation of Mr. Ojhas testimony is correct. Even on the premise that Mr.
    Ojha offered exculpatory evidence only relating to the assault with the branch,
    but not the swarming, a
W.(D.)
direction would have been needed. Put
    simply, a
W.(D.)
direction is required even where evidence is
    exculpatory on only one of the Crowns theories of culpability, but not others.
    A simple hypothetical example derived from this case illustrates why.

[47]

Assume
    that because of credibility concerns relating to the Crown witnesses who
    claimed to see the appellant stomp and kick Mr. Kenyi, jurors were left with a reasonable
    doubt about whether the appellant joined in swarming him. Those jurors would
    then be left to consider the alternate Crown theory that the appellant is
    nonetheless guilty because he struck Mr. Kenyi with a branch. Without a
    functional understanding of the
W.(D.)
principles, those jurors would
    be unable to properly evaluate the impact of Mr. Ojhas exculpatory testimony
    on the remaining Crown allegation that the appellant struck Mr. Kenyi with a
    branch. Quite simply, if a version of events is vital enough to support a
    conviction if it is proved by incriminating evidence, it is vital enough to
    require a
W.(D.)
direction if challenged by exculpatory evidence.

[48]

There
    is also a second and more basic flaw in the Crowns argument. It is for jurors
    to interpret Mr. Ojhas in-court testimony. That testimony was open to the
    reasonable interpretation that the appellant remained beside Mr. Ojha
    throughout the entire assault, and that he was therefore not complicit in any
    aspect of the fatal assault against Mr. Kenyi. Where testimony is realistically
    open to an exculpatory interpretation, a
W.(D.)
direction should be
    provided.

The jury charge as a whole

[49]

Second,
    and in the alternative, the Crown argues that even without a
W.(D.)
direction
    relating to Mr. Ojha, the jury charge taken as a whole adequately communicated
    the
W.(D.)
principles that jurors had to consider in evaluating his
    testimony.

[50]

There
    are indeed some cases where the failure to give an express
W.(D.)
direction
    will not be an error because, given the issues and the evidence, jurors can
    derive a functional and contextual understanding of the requisite principles
    from the balance of the jury charge: see e.g.,
R. v. Ivall
, 2018 ONCA
    1026, 370 C.C.C. (3d) 179, at paras. 12630. Here, however, the jury was expressly
    told to apply the
W.(D.)
principles to the testimony of Mr. Membreno
.
Since that direction was given only with respect to Mr. Membrenos
    evidence, jurors may well have understood, incorrectly, that the
W.(D.)
direction
    applied to his evidence alone, and not to the testimony of Mr. Ojha.

[51]

Moreover,
    I see nothing in the jury charge that could adequately communicate to the jury
    that they could be left in doubt by Mr. Ojhas exculpatory evidence without
    affirmatively believing it, or that they should not treat the conflict in Mr.
    Ojhas evidence as requiring them to choose which version to accept. I would not
    accept the Crowns position that the jury charge was adequate when read as a
    whole. In my view, it was not.

The failure to object

[52]

Third,
    the Crown argues that the failure of trial counsel to object to the draft jury
    charge shows that counsel may have recognized that a
W.(D.)
direction relating
    to Mr. Ojhas evidence was unimportant, or that trial counsel made a tactical
    decision not to raise this issue at trial and should not be permitted to do so
    now on appeal.

[53]

I
    would reject these arguments as well. I agree with the appellant that this is
    not a case of a failure to object. Trial counsel and the Crown both requested a
W.(D.)
charge relating to Mr. Ojhas exculpatory testimony. The trial
    judge told counsel to leave the issue with her. She evidently ruled to the
    contrary. In my view, trial counsel cannot fairly be expected to protest a
    ruling the trial judge has already made by objecting.

[54]

In
    any event, Mr. Ojha was a key witness, and the principles of
W.(D.)
are of critical importance in the circumstances of this case. This was not the
    kind of error that should be disregarded because of a failure to object, even
    if such a failure had occurred.

(4)

Conclusion Regarding
W.(D.)

[55]

I
    am persuaded that the trial judge erred in failing to direct jurors to apply
    the principles in
W.(D.)
when evaluating the testimony of Mr. Ojha.
    Without such direction, there can be no confidence that the jury understood the
    legal principles they were to apply. In my view, this non-direction amounted to
    a misdirection.

[56]

Accordingly,
    I would give effect to this ground of appeal.

B.

The Double Hearsay Error

[57]

Mr.
    Ojhas
K.G.B.
statement was received into evidence as admissible
    hearsay. On its face, Mr. Ojhas statement appears to be based on his personal
    observations. However, according to Mr. Ojhas testimony, his statement, which
    was being offered by the Crown as admissible hearsay evidence, was itself based
    on hearsay from others. If this claim was true, the
K.G.B.
statement was
    double hearsay. As I will explain, reliance on double hearsay is
    impermissible unless both levels of hearsay are independently admissible. If
    Mr. Ojhas
K.G.B.

statement included hearsay information that
    Mr. Ojha learned from others, this second level hearsay would not be independently
    admissible hearsay because there is no available hearsay exception that would
    apply to what Mr. Ojha was told. Yet, the trial judge failed to direct the jury
    to disregard the
K.G.B.
statement if it accepted Mr. Ojhas claim that
    his
K.G.B.
statement was based on what others had said. She simply
    instructed them that this would be an issue of reliability. I am persuaded that
    this jury direction was an error.

(1)

The Relevant Principles

[58]

It
    is settled law that a prior inconsistent statement [such as Mr. Ojhas
K.G.B.
statement] can only be admitted for the truth of its contents under the
    principled approach if the evidence contained in the statement would be
    admissible through the witnesss testimony at trial:
R. v. Devine
,
    2008 SCC 36, [2008] 2 S.C.R. 283, at para. 13, citing
K.G.B.
, at p. 784.
    Further, it is trite law that a witness cannot offer hearsay evidence in their
    testimony unless that hearsay evidence qualifies for admission pursuant to a
    hearsay exception. It follows that hearsay that is itself embedded in an
    otherwise admissible
K.G.B.
statement will not be admissible unless
    that embedded double hearsay qualifies for admission pursuant to its own
    hearsay exception:
R. v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at
    para. 75;
R. v. Srun
,
2019 ONCA 453
, 146
    O.R. (3d) 307, at para. 135. Put simply, inadmissible double hearsay cannot
    ride into evidence on the coattails of admissible hearsay evidence.

[59]

The
    reason why this is so, and its implications, are made apparent by returning to
    first principles. As Fish J. said in
R. v. Baldree
, 2013 SCC 35, [2013]
    2 S.C.R. 520, at para. 31, hearsay evidence is presumptively inadmissible
    because of the difficulties inherent in testing the reliability of the
    declarants assertion. He went on, at paras. 31-32 to describe those
    difficulties. He explained that the demeanour with which the out-of-court
    declaration was made cannot ordinarily be evaluated. Moreover, the declarants
    basis for making the out-of-court factual claim contained in the hearsay
    statement cannot ordinarily be assessed. Specifically, there is often no way to
    test the accuracy of the declarants perception, or their memory, or the
    accuracy of their narration of what they observed, or their sincerity. It is
    arbitrary and therefore impermissible to rely upon evidence that cannot be
    assessed for its reliability or accuracy, hence the presumptive inadmissibility
    of hearsay evidence.

[60]

Of
    course, there are exceptional circumstances where the presumptive
    inadmissibility of hearsay evidence is overcome, such as the principled hearsay
    exception that was used to admit Mr. Ojhas
K.G.B.
statement. Those
    exceptions tend to apply where it is not possible to secure the hearsay
    information through direct, in-court testimony of witnesses who have personal
    knowledge, and there are alternative bases for assessing the reliability of that
    hearsay statement. Where this is so, it is reasonable, not arbitrary, for a
    trier of fact to choose to rely upon the hearsay information. Hence the hearsay
    exceptions.

[61]

The
    problem with double hearsay imbedded in an otherwise admissible hearsay
    statement is that the indicia of reliability that a trier of fact can use to
    assess the otherwise admissible hearsay statement tell us nothing about the
    reliability of the embedded hearsay. This case illustrates the point.

[62]

As
    I have explained, the trial judge admitted Mr. Ojhas out-of-court
K.G.B.
statement
    on the theory that his statement had indicia of procedural threshold
    reliability that would equip jurors to evaluate the credibility and reliability
    of what Mr. Ojha told the police. Most importantly, jurors could observe Mr.
    Ojhas demeanour and judge his degree of impairment by viewing the interview on
    the video recording, and they could assess the accuracy of what he told the
    police by considering the answers he provided when he was cross-examined before
    them. These mechanisms for assessment would be useful if the
K.G.B.
statement
    contains only the personal knowledge of the person being interviewed.

[63]

But
    if Mr. Ojha was communicating not what he knew but what he had been told, those
    procedural assessment mechanisms are useless in judging the accuracy of that
    information. Only information relating to the real witnesses  those who told
    Mr. Ojha what happened  could provide a reasoned basis for assessing the
    hearsay information that those witnesses shared with Ojha. Without hearing from
    them or having alternative indicia of reliability relating to what they said, any
    decision by the jury to rely on what Mr. Ojha heard these declarants say would
    be arbitrary.

(2)

The Error Explained

[64]

I
    do not fault the trial judge for admitting Mr. Ojhas
K.G.B.
statement
    into evidence, notwithstanding Mr. Ojhas testimony that the incriminating
    content of that prior statement was based only on what he had heard. On its
    face, there was nothing in the
K.G.B.
statement to indicate that it
    was based on anything other than Mr. Ojhas personal knowledge. The trial judge
    was not obliged to treat that statement as containing double hearsay based
    solely on Mr. Ojhas after-the-fact testimony that it was based on hearsay. However,
    the jury could not ignore the claim that his police statement was based on what
    others had told him. It was for the jury to determine whether to accept Mr. Ojhas
    testimony to this effect. The trial judge was therefore entitled to determine
    the admissibility of the
K.G.B.
statement in its own right, and to
    leave it to the jury to assess whether to credit Mr. Ojhas claim that his
    hearsay statement was itself based on hearsay from others.

[65]

The
    judge was nonetheless obliged to direct the jury accurately on how to proceed
    if they accepted Mr. Ojhas testimony in that regard. The jury should have been
    told that if they accepted Mr. Ojhas testimony that the
K.G.B.
statement
    was based on what he had been told, they should disregard his
K.G.B.
statement
    in its entirety, since they would have no available means to judge the
    reliability of what Mr. Ojha had been told. Reliance on the
K.G.B.
statement
    would therefore be arbitrary.

[66]

But
    this is not what the jury was told. Instead, the trial judge said:

First, you heard evidence of Mr. Ojha that what he told the
    police in this videotaped statement was simply things that he had heard on the
    street and things he heard in the park the morning after the incident before he
    went to the police statement.
If you accept that Mr. Ojha was just repeating
    what others told him and did not tell the police what he actually saw, that
    would affect the reliability of his evidence
. It is for you to determine
    whether he was or was not repeating what others told him in his videotaped
    statement. You will consider this evidence in making that determination,
    including what he said in his statement and how he said it.
All of his
    evidence must be considered in deciding whether his statement was the product
    of collusion and if there was collusion, how it affects the reliability of his
    statement.
(Emphasis added).

[67]

In
    my view, this direction was not sufficient. By telling the jury only that a
    double hearsay finding on their part would affect the reliability of his
    statement, the trial judge was leaving it open to the jury to act on that
    double hearsay evidence. As I say, without any basis for evaluating the
    reliability of the double hearsay information, it would be arbitrary for the
    jury to act upon it. The trial judge should have told the jury if they accepted
    that the
K.G.B.
statement was based on double hearsay, they must
    disregard it.

[68]

I
    note that the trial judge did give a general instruction to the jury that [i]f
    a witness testified about something another person who was there in the park
    said, this evidence could only be used to help you understand what the
    witness thought or believed as a result of that. In my view, this instruction cannot
    overcome the problem I have identified. First, the impugned instruction quoted
    above in para. 66 of this judgment is specific to the
K.G.B.
statement
    and instructs the jury to consider embedded hearsay as a reliability
    consideration in evaluating what was said in the statement. Second, elsewhere in
    the jury charge the trial judge instructed the jury specifically that in the
    case of Mr. Ojha they could use his previous statement as evidence of what
    happened.

[69]

I
    would therefore give effect to this ground of appeal.

[70]

I
    will make one final point before moving to the next issue. During his
    submissions, the appellant also took issue with the trial judge characterizing
    the hearsay question as one of collusion. He argued that there was no
    suggestion that Mr. Ojha engaged in collusion, such as that which occurred at a
    barbeque where other witnesses conspired about the story they would tell. Mr.
    Ojhas evidence was simply that he repeated what he had heard. I understand the
    appellants concern, but the trial judge gave this direction almost immediately
    after defining collusion benignly as including shared stories that may result
    in altered versions. To be sure, given the connotation that collusion carries
    as an intentional conspiracy it would be better to avoid using this term to
    describe the inadvertent tainting that can occur when exposed to other versions
    of events, but I see no prejudice in these circumstances.

C.

The
Juries Act

Challenge

[71]

At
    the close of the appellants oral submissions, we dismissed his appeal of the
    trial judges decision to reject the constitutional challenge he brought to s.
    4(b) of the Ontario
Juries Act
. I will now briefly explain our reasons
    for doing so.

(1)

The Constitutional Argument

[72]

Section
    4(b) provides as follows:

A person is ineligible to serve as a juror if the person,



(b) has been convicted of an offence that may be prosecuted by
    indictment, unless the person has subsequently been granted a record suspension
    under the
Criminal Records Act
(Canada) or a pardon.

[73]

The
    appellant argues that by enacting s. 638(1)(c) of the
Criminal Code
, Parliament
    intended for some jurors who would be caught by s. 4(b) of the
Juries Act
to be eligible for jury service, subject only to being challenged for cause. It
    is the appellants position that s. 4(b) of the
Juries Act
is therefore
ultra vires
because it conflicts with s. 638(1)(c) of the
Criminal
    Code
and frustrates its purpose.

[74]

At
    the time the jury that tried the appellant was selected, s. 638(1)(c) of the
Criminal
    Code
read as follows:

A prosecutor or an accused is entitled to any number of challenges
    on the ground that



(c) a juror has been convicted of an offence for which he was
    sentenced to death or to a term of imprisonment exceeding twelve months.

[75]

Section
    638(1)(c) was amended on June 21, 2019, after the appellants trial, to
    restrict challenges for cause to jurors based on criminal history to those who
    have been convicted of an offence for which they were sentenced to a term of imprisonment
    of two years or more and for which no pardon or record suspension is in effect.

[76]

The
    appellant argues that the June 2019 amendment to s. 638(1)(c) fortifies his position,
    because it is evident that this amendment was undertaken to increase the
    opportunity for overpoliced visible minority populations to be represented on
    juries.

(2)

Analysis

[77]

I reject the appellants submission that the trial judge
    erred in failing to find that s. 4(b) of the
Juries Act
is
ultra
    vires

because it conflicts
    with s. 638(1)(c) of the
Criminal Code
and frustrates its purpose.


[78]

The
    appellant has not discharged his onus of showing that there is an operational
    conflict based on an impossibility of complying with both provisions, or that
    the provincial law frustrates the purpose of the federal law:
Canadian
    Western Bank v. Alberta
, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 72-75.

Impossibility of compliance

[79]

The fact that the effective enforcement of s. 4(b) of the
Juries
    Act
would remove the need or opportunity to bring challenges for cause
    pursuant to s. 638(1)(c) does not constitute an operational conflict. As
    the trial judge pointed out, an operational conflict exists where the
    enactments at issue require inconsistent things, such that compliance with one
    is defiance of the other, because one enactment says yes and another says
    no:
Multiple Access Ltd. v. McCutcheon
, [1982] 2 S.C.R. 161, at p. 191;
Canadian Western Bank
, at para. 71.

[80]

There is no such operational conflict here. Instead, there
    is a mere duplication of norms between the provisions at issue on this appeal,
    each of which operates to exclude or remove from juries, persons with criminal
    histories. The fact that two rules may duplicate the same outcome does not
    trigger paramountcy, as the intent of Parliament would remain unaffected:
Desgagnés
    Transport Inc. v. Wärtsilä Canada Inc.
, 2019 SCC 58, 442 D.L.R. (4th) 600,
    at para. 101. Nor does an operational conflict arise from the fact that the
Juries
    Act
has broader impact. Provincial legislation can add requirements that
    supplement federal legislation:
114957 Canada Ltée (Spraytech, Société darrosage)
    v. Hudson (Town)
, 2001 SCC 40, [2001] S.C.R. 241, at paras. 34-35;
Canadian
    Western Bank
, at para. 74.

Frustration of purpose

[81]

Nor
    has the appellant satisfied us that s. 4(b) of the
Juries Act
frustrates
    the purpose of s. 638(1)(c) of the
Criminal Code
.

[82]

As
    the trial judge points out, the provincial and federal legislation govern
    different aspects of jury selection. Section 4(b) of the
Juries Act
addresses
    juror eligibility for those with criminal histories. Section 638(1) does not: it
    permits challenges for cause to be brought against eligible jurors who have
    criminal histories. The fact that Parliament has restricted the use of
    challenges for cause by elevating the sentence that will trigger a challenge
    does not mean that Parliament intended those who cannot be challenged for cause
    to be eligible as jurors. Indeed, it is presumed that Parliament intends its
    laws to co-exist with provincial laws:
Alberta (Attorney General) v.
    Moloney,
2015 SCC 51, [2015] 3 S.C.R. 327, at para. 27;
Orphan Well
    Association v. Grant Thornton Ltd.
, 2019 SCC 5, [2019] 1 S.C.R. 150, at
    para. 66. We see no basis for concluding that in enacting s. 638(1)(c) Parliament
    intended to occupy the field of juror eligibility for those with criminal
    histories. Indeed, s. 626(1) of the
Criminal Code
provides expressly
    that a person who is qualified as a juror according tothe laws of a province
    is qualified to serve as a juror in criminal proceedings in that province.

[83]

We
    therefore find that the trial judge was correct to deny the appellants
    constitutional challenge to s. 4(b) of the
Juries Act
.

CONCLUSION

[84]

For
    the reasons above, I would conclude that the trial judge erred in failing to
    give a
W.(D.)
direction relating to Mr. Ojhas testimony. In my view,
    the trial judge also erred by inviting jurors, if they found any double hearsay
    to exist in Mr. Ojhas
K.G.B.
statement, to act on that double hearsay
    after considering its reliability.

[85]

Accordingly,
    I would set aside the appellants manslaughter conviction and order a new
    trial.

Released: November 5, 2021 C.W.H.

David M. Paciocco
    J.A.

I agree. C. W.
    Hourigan J.A.

I agree. B. Zarnett J.A.


