



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

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(2) Subsection (1) does not apply

(a) in a case
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(b) in a case
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(c) in a case
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(3) A young
    person referred to in subsection (1) may, after he or she attains the age of
    eighteen years, publish or cause to be published information that would
    identify him or her as having been dealt with under this Act or the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,
    provided that he or she is not in custody pursuant to either Act at the time of
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111(1)          Subject to this
    section, no person shall publish the name of a child or young person, or any
    other information related to a child or a young person, if it would identify
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138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence
    punishable on summary conviction.




COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. S.K., 2019 ONCA 776

DATE: 20191001

DOCKET: C61420 & C61436

Simmons, Tulloch and Brown JJ.A.

BETWEEN

C61420

Her Majesty the Queen

Appellant

and

S.K.

Respondent

C61436

AND BETWEEN

Her Majesty the Queen

Respondent

and

S.K.

Appellant

Andreea
    Baiasu, for Her Majesty the Queen

James
    Lockyer, Philip Campbell, and Eva Taché-Green, for S.K.

Heard: March 12-13, 2019

On appeal from the conviction entered by
    Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury, on
    June 18, 2015 and the sentence imposed on November 16, 2015, with reasons
    reported at 2015 ONSC 7649.

Simmons J.A.:

A.

introduction

[1]

As he had done many
    times before, on June 28, 2011, 15-year-old S.K. (the appellant) took his father's
    Dodge Caravan minivan out at night without his parents consent and went joyriding
    with three friends.

[2]

At around 4:45 a.m., Constable
    Garrett Styles of York Regional Police stopped the appellant for speeding. Following
    a brief trip to his cruiser, Constables Styles told the appellant that the van
    would be impounded and ordered him to get out of the vehicle. The appellant
    refused and pleaded with the officer to let him go.

[3]

After some further verbal
    interaction with the appellant, Constable Styles opened the drivers door of
    the van, reached over the appellant and attempted to undo the appellant's seat
    belt. The van then started moving onto Highway 48 and accelerated with
    Constable Styles caught between the appellant and the steering wheel and the
    lower part of his body hanging out the open drivers door.

[4]

Approximately 267
    metres down the highway, Constable Styles jerked the steering wheel to the
    left. The van left the highway, went through a ditch and up an embankment,
    became airborne, and rolled 360 degrees. Constable Styles was ejected from the
    van, which ultimately came to rest on top of him. Although he was conscious
    when emergency personnel arrived, tragically, Constable Styles was pronounced
    dead shortly after reaching the hospital.

[5]

The appellant sustained
    a spinal fracture in the crash that rendered him a quadriplegic. He was charged
    with first degree murder at 6:15 a.m. on the morning of June 28, 2011.

[6]

On the evening of June
    28, S.K. underwent spinal surgery, following which he was intubated and unable
    to speak for three weeks. During that period, he could only use an alphabet
    board to communicate. On July 24, 2011, S.K. made a statement to his father,
    N.K., to the effect that he did not intentionally set the van in motion.

[7]

The appellant was tried
    and convicted of first degree murder contrary to s. 229(c)
[1]
and 231(4)(a)
[2]
of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[8]

The Crown alleged that
    the appellant committed a dangerous act (dangerous driving) for an unlawful
    object (obstructing a police officer, stealing his parents van, and possession
    of stolen property) knowing that his dangerous actions were likely to cause
    Constable Styless death. At trial, the Crown theorized that the appellant put
    the van in park when he was initially stopped but later, when Constable Styles
    attempted to remove him from the vehicle, intentionally shifted into drive and
    stepped on the accelerator.

[9]

The appellant testified
    at trial and claimed he kept his foot on the brake pedal throughout the traffic
    stop and never shifted into park. Constable Styles startled him when he
    suddenly opened the door and then lunged into the vehicle. The appellant said he
    was trying to push the brakes, he did not intentionally push the accelerator
    pedal, he could not breathe with Constable Styles on top of him, and he had no
    control over the vehicle as it accelerated onto the highway. To support the
    appellants claim, the defence called a biomechanical engineer to explain the
    phenomenon of pedal misapplication, a form of unintended acceleration.

[10]

However, a paramedic
    who attended to the appellant at the scene of the crash testified that, when he
    was asked what happened, the appellant said he could not specifically recall
    the accident and that the appellant never provided any information about events
    leading up to the accident. Although the Crown did not cross-examine the
    appellant about this statement, in closing submissions, the Crown questioned
    why the appellants first response to the paramedic had not been to the effect that
    he was trying to stop the van.

[11]

As part of the defence case, the appellant
    applied to admit evidence of his statement to his father both for the truth of
    its contents and for the fact that it had been made on several
bases: the
Edgar
[3]

exception to the
    prohibition against admitting prior consistent statements; the
principled exception to the hearsay rule; by analogy to s. 715.1 of
    the
Criminal

Code
; the recent fabrication exception; the
    narrative exception; and the trial judges residual discretion. The trial judge
    refused the appellants request. The trial judge also refused the appellants
    request for a mistrial arising from the Crowns closing address and instead provided
    a corrective instruction.

[12]

Following the jurys verdict, on November 16, 2015
    the appellant was sentenced to one day of custody in addition to time served (8
    months credit) and nine years of conditional supervision, to be served in the
    community, under s. 42(2)(q) of the
Youth Criminal Justice Act
,
S.C. 2002, c. 1
.

[13]

The appellant appeals
    from his conviction. The Crown seeks leave to appeal from the sentence imposed.

[14]

The appellant raises
    five grounds of appeal on his appeal from conviction:

1.

Was the first degree
    murder verdict unreasonable?

2.

Did the trial judge err in excluding the appellants account of the
    events to his father, given 26 days after the accident?

3.

Did the trial judge err in failing to declare a mistrial after the Crowns
    closing address and in failing to provide an adequate corrective instruction?

4.

Did the trial judge err in his charge by failing to identify factors
    personal to S.K. that were relevant to the issue of whether he was aware of the
    likelihood of death under s. 229(c) of the
Criminal Code
?

5.

Did the trial judge err in his charge by failing to alert the jury
    to the significance of lies under oath at trial by two key Crown witnesses?

[15]

For the reasons that
    follow, I conclude that the trial judge erred in failing to instruct the jury
    that the appellants age and level of maturity were important factors for them
    to consider in assessing whether he knew his dangerous driving was likely to
    cause Constable Styless death. I would allow the appeal on that basis alone.

[16]

I further conclude
    that the trial judge erred in failing to admit the appellants statement to his
    father to rebut the implicit allegation of recent fabrication arising from the Crowns
    cross-examination and the overall circumstances of the case. Finally, I
    conclude that the trial judge erred in failing to instruct the jury specifically
    that they must disregard the Crown closing submission that led the defence to
    request a mistrial. I reject the appellants submission that the verdict of
    first degree murder was unreasonable and would not give effect to the fifth ground
    of appeal.

[17]

In the result, I would
    allow the appeal, set aside the conviction, and order a new trial. In light of
    my conclusions, it is unnecessary that I address the Crowns arguments on its
    sentence appeal.

B.

Background

(1)

The appellants
    background

[18]

The appellant was born
    in Sri Lanka in November 1995 and immigrated to Canada with his parents when he
    was four years old. In June 2011, he was a 15-year-old high school student
    living with his parents and sister in Newmarket.

[19]

The appellant taught
    himself to drive in the parking lot of his parents restaurant. Beginning in
    November 2010, when he was 14 years old, he drove his fathers two vehicles
    around the parking lot without his parents knowledge while they were away from
    the restaurant. Later, he drove the vehicles around with his friends at night
    after his parents were asleep. Although in January 2011 he was caught by police
    and ticketed for driving without a licence, neither that experience nor his
    parents shock and disappointment over his conduct was sufficient to deter him
    for long. Within about six weeks of being caught, he had resumed his nocturnal
    joyriding. In all, he went out driving with friends about fifteen times between
    December 2010 and June 2011.

(2)

Events leading up to
    the traffic stop

[20]

Monday, June 27, 2011
    was the last day of high school in Newmarket. At 11:01 p.m., a friend, B.P.,
    who had driven with the appellant previously, texted the appellant to say he
    and his buddy, F.D., were taking out F.D.s fathers truck. B.P. invited the
    appellant to meet up with them. They eventually agreed to meet at a coffee shop
    near F.D.s house. In the meantime, the appellant arranged to pick up B.D., a
    young woman with whom he had been chatting on Facebook, at her parents Mount
    Albert home.

[21]

Surveillance footage at
    the coffee shop showed the two vehicles, both driven by unlicenced drivers,
    meeting up around 1:43 a.m. After driving around Newmarket for a couple of
    hours, at around 4 a.m., the group dropped F.D.s fathers truck off at his
    house and set out in the van driven by the appellant to take B.D. home. F.D.
    was in the front passenger seat, B.P. was on the rear drivers side behind the
    appellant, and B.D. was on the rear passenger side behind F.D.

(3)

The Crowns evidence
    concerning the traffic stop and ensuing events

[22]

The appellant sped as
    he drove toward Mount Albert on Highway 48. About 300 metres south of Herald
    Rd., Constable Styles signalled for the appellant to pull over, which he did,
    on the right side of the road. Constable Styles came to the drivers door,
    asked for the appellants licence and registration and told him he was doing
    147 km/h in an 80 km/h zone. The appellant tried to stall by pretending to look
    for his licence and asking the others if they had his wallet. Ultimately, the
    appellant gave the name, date of birth, and contact information of his cousin,
    who was old enough to be a licenced driver.

[23]

Constable Styles
    returned to his cruiser briefly before coming back and informing the appellant that
    the van would be impounded.

[24]

The passengers
    evidence all revealed the appellants concern at being stopped by the police
    but was inconsistent concerning whether he put the van in park, who first
    suggested leaving when Constable Styles returned to his cruiser, and the
    ensuing events when Constable Styles told the appellant the van would be
    impounded.

(a)

F.D.s evidence

[25]

F.D. was in the front
    passenger seat of the van and had a set of brass knuckles in his pocket. He testified
    that when the appellant saw the police lights, the appellant said, I cant
    have this happen. The appellant pulled onto the shoulder of the highway but
    left the engine running. F.D. said initially he saw the appellant put the van
    in park and later shift it into drive when the van drove off. However, in
    cross-examination he agreed that he did not recall clearly whether the
    appellant had done either.

[26]

According to F.D., when
    Constable Styles returned to his cruiser, the appellant asked the others
    several times, Should I dip? (meaning, Should I leave?), but the others
    said, No. In cross-examination, F.D. denied that he was the one who suggested
    leaving because he had the brass knuckles in his pocket.

[27]

When Constable Styles
    returned to the van and said it would be impounded, the appellant responded, No,
    I cant let you take the car, and No, please dont take the car. The officer
    eventually asked the appellant to take the key out of the ignition. When the
    appellant said, No sir, please dont, the officer reached through the window
    to try to take the key. However, the appellant placed his hand over the key and
    kept saying, No sir, dont.

[28]

F.D. testified that the
    officer then unexpectedly opened the van door. He agreed this was sudden and
    startling. The officer then reached over to unbuckle the appellants seatbelt
    and F.D. heard it click. As that happened, F.D. felt a jolt forward and the van
    began to accelerate. At that point, Constable Styles was in the appellants
    lap, with his chest on the appellant legs and his body pressed between the
    appellant and the steering wheel. The appellants right arm was under Constable
    Styles, holding onto the steering wheel; his left arm was on top of the officer,
    strongly holding him in place. As the van drove down the highway, the officer
    was screaming, I will arrest you.

[29]

F.D. saw Constable
    Styles use his left hand to turn the steering wheel to the left, causing the
    van to veer off the highway. When the van ultimately came to rest, F.D. threw
    his brass knuckles into the grass because he was afraid he would get in trouble
    if found in possession of them. Police later found the brass knuckles in the
    grass near the van.

(b)

B.P.s evidence

[30]

B.P. was sitting behind
    the appellant when Constable Styles pulled the van over. He heard the appellant
    say, Oh shit, theres cops behind us. He said the appellant sounded scared as
    he spoke to the officer. When Constable Styles went back to his cruiser, the
    appellant asked, Should I dip? B.P. said all the passengers said no. The
    appellant then agreed he would not do that because the passengers said, Well
    have a lot more cops on us.

[31]

Like F.D., B.P. denied
    that F.D. was the one who suggested fleeing because of the brass knuckles or
    that F.D. made any mention of them.

[32]

According to B.P.,
    Constable Styles jumped through the window when the appellant refused to hand
    over the keys. Although B.P. told police right after the accident that he saw
    the appellant put the van into drive, ultimately, he testified he was unsure if
    that happened. All he could then remember was feeling a jolt just before the
    van drove off. The jolt could have been the appellant putting the van into
    drive, or it could have been the appellant taking his foot off the brake.

[33]

B.P. described the
    three passengers as screaming at the appellant to stop as the van drove off. The
    appellant was silent and did not appear to be reacting to the situation. B.P.
    said Constable Styles threatened to shoot the appellant and also bit his arm in
    an effort to get the appellant to stop the van.

(c)

B.D.s evidence

[34]

B.D. was in the rear
    passenger seat of the van when it was pulled over. She described the appellant
    as freaking out; he told them he was only 15 and said his parents were going to
    kill him. He also asked if any of them were old enough to drive so they could
    get into the front seat and claim to be the driver.

[35]

B.D. testified that
    F.D. was also panicking and asking whether he should throw his brass knuckles
    out the window. Although she did not know why, she recalled F.D. telling the
    appellant to drive off and thought it may have been because of the brass
    knuckles.

[36]

B.D. described the
    appellant pleading with Constable Styles after the officer said he was going to
    impound the van. After a while, Constable Styles became irritated and raised
    his voice. He asked the appellant to get out of the car but the appellant
    refused. Within a couple of seconds, the officer opened the door and lunged into
    the van reaching for the appellants seatbelt. B.D. testified in-chief that the
    appellant shifted the car from park to drive and started driving and screaming,
    No, no, no. In cross-examination, she was confronted with her preliminary
    inquiry testimony in which she said the van remained in drive throughout the
    stop. Ultimately, she could not remember whether the appellant put the van in
    park or only kept his foot on the brake during the traffic stop.

[37]

B.D. recalled the
    officer threatening to shoot the appellant and F.D. repeatedly punching the
    appellant in the face and telling him to stop as the van proceeded out of
    control down the highway.

(4)

The Crowns collision reconstruction
    evidence

[38]

Constable Gordon Hebert
    was called as an expert in accident reconstruction by the Crown. He testified
    that the van travelled 267.11 metres north on Highway 48 until it began to go
    off road on the west side of the highway. Once off-road, it became airborne as
    it reached the top of an embankment and rolled over, ejecting Constable Styles
    and ultimately landing on top of him.

[39]

As the van left no
    physical evidence on the highway, Constable Hebert was unable to determine how
    hard it accelerated away from the traffic stop, how fast it was travelling on
    the highway, or whether there was any braking or acceleration on the highway.
    Once off-road, the van travelled across uneven terrain that would have made it
    difficult, if not impossible, for the driver to control the vehicle. Constable
    Hebert calculated that the van would have been travelling at 58.6 km/h, plus or
    minus 5 km/h, when it became airborne. He testified there was no physical
    evidence that could indicate whether the acceleration of the van was done
    intentionally. However, he agreed that the interaction between the appellant
    and Constable Styles was an important factor in determining whether the van
    could be controlled. He acknowledged that given Constable Styless height and
    weight and the appellants, the space between the steering wheel and the front
    seat of the van would be a tight squeeze.
[4]

(5)

The paramedics
    evidence

[40]

As part of its case,
    the Crown called paramedic Dustin Brown, who attended to the appellant
    following the crash. Brown testified that, when he arrived on the scene, the
    appellant was still in the drivers seat of the van. The appellant gave Brown
    his first and last name, his date of birth and his address. Brown testified:

[The appellant] was alert, his eyes were open.
    He seemed to have  a general awareness of what was going on  he seemed to
    understand my questions and answered them appropriately  he didnt remember
    the - the accident specifically  He said the police officer said he was
    driving too fast.

[41]

Brown confirmed that he
    asked the appellant what happened but that apart from saying he did not
    remember the accident specifically, the appellant never provided any
    information about what led up to the crash. The appellant told Brown that his
    parents were going to kill him, and that he was experiencing pain in his neck
    and arms but had no sensation below the waist. He was scared and asked if he
    would ever walk again.

(6)

The defence evidence

[42]

The appellant testified
    on his own behalf and also called Dr. Chris Van Ee, an expert in biomechanical
    engineering, to testify about the phenomenon of pedal misapplication.

(a)

The appellants
    evidence

[43]

The appellant testified
    that all four occupants of the van were freaking out when they realized they
    were being pulled over by the police. He said he pulled over and kept his right
    foot on the brake throughout the traffic stop. He explained it was his habit to
    leave a vehicle in drive if he was stopping without disembarking.

[44]

The appellant
    acknowledged providing Constable Styles with his cousins name and date of
    birth. He described a state of panic in the van as the officer went back to his
    cruiser, including F.D.s concern over possession of brass knuckles. He said it
    was F.D.s suggestion that he should drive away. Although the appellant
    initially entertained this idea, he abandoned it when the others said it was
    stupid and that they would get caught.

[45]

The appellant testified
    he just started begging when Constable Styles told him the van would be
    impounded. He said the officer was getting angry and all of a sudden swung the
    van door open really quickly. [I]t was unexpected. It startled [him]. The
    officer just launched himself into the vehicle and put his right arm across
    the appellant and shoved him toward the front seat passenger, F.D.

[46]

The appellant recalled that
    the officers entry into the vehicle constituted one continuous motion. The
    officer reached for the appellants seatbelt with his left hand, appeared to
    lose his balance, and fell onto the appellant at the same time as the seatbelt
    came undone and the van started to move.

[47]

The appellant denied
    that he intentionally set the van in motion. He said his foot was still pushing
    the brakes and he had no idea how the van started going. The officers body was
    in his lap, on his stomach and chest area. He said he could not breathe and
    could not see his foot. While he acknowledged that his foot must have been on
    the accelerator, he said he thought his foot was still on the brake and he
    could not figure out what was happening at that time.

[48]

The appellants hands
    were in his lap when Constable Styles fell on him. He tried to use his right
    hand to control the steering wheel, but it was hard, because of the weight on
    his arm. He thought he freed his left arm and was using it instinctively to
    hold onto Constable Styles.

[49]

The appellant claimed that,
    as the van moved down the highway, he was focused on stopping or steering the
    van. He did not know whether F.D. hit him and did not remember Constable Styles
    threatening to shoot him. He did remember the officer biting him, however. After
    the officer pulled the vehicle to the left, he closed his eyes. When the van
    stopped, he did not know that Constable Styles was under the van.

[50]

The appellant remembered
    a paramedic arriving and staying with him until he was taken to the ambulance.
    He did not recognize Dustin Brown in court and did not remember exactly what he
    told him.

[51]

In cross-examination,
    the appellant maintained that although Constable Styles asked him to get out of
    the van several times, it never crossed his mind that the officer would open
    the door to get him out. The appellant did not know why the officer fell on his
    lap and disagreed that it was because the van moved. He suggested the van may
    have started moving because the officer fell on his lap and pushed his foot
    onto the accelerator. The appellant testified that, during the course of the
    incident, it never crossed his mind that the officer might die; he was just
    focused on stopping the vehicle.

[52]

In addition, the Crown
    alleged the appellant had fabricated two aspects of his evidence: first, that
    he was surprised when Constable Styles opened the van door and reached into the
    van; and second, that he did not intentionally press on the accelerator.

Q. Why were you not expecting [the officer to
    open the door]? A police officer in full uniform carrying a gun is telling you
    Get out of the car. You keep saying No, what do you think he is going to do
    other than open the door, grab you by your shirt, and pull you out of the car.
    What do you think was going to happen?

A. I dont know. Ive never seen it happen before, so I didnt
    know what was going to happen.

Q. You see, sir, Im going to suggest to you
the
    only reason
you say I was startled. I was surprised that he opened the
    door is because
youre trying to provide some explanation
as to why, in
    this startle and surprise, you hit the gas pedal unintentionally, thats why
    youre saying you were startled and surprised, right?

A. Sorry, youre not me. I dont think its
    fair for you to say what I felt, or assume what I felt.

Q. Im suggesting youre lying to this jury,
    is what Im doing.

A. Thats wrong because Im telling them the
    truth.

Q. Okay.

A. I was surprised.



Q. Okay. So, when in time does the van start
    moving?

A. Like, right after he fell on top of me.

Q. Right after he fell?

A. Yeah.

Q. And you didnt 
your version of the
    events
is you didnt do that intentionally, right?

A. This is not my version, this is whats
    happened

Q. Okay, that you  that you didnt intentionally
    put your foot on the gas pedal

A. No.

Q. right? You agree that your foot was on the
    gas pedal though, right? Thats how this van went forward?

A. Yeah.
When I look back at it now that
    must have been my foot for sure
It wasnt intentionally my foot. At the
    time I wasnt trying to hit the gas. [Emphasis added.]

(b)

Dr. Van Ees evidence

[53]

Dr. Van Ee testified
    that unintentional acceleration incidents have been documented, investigated,
    and reviewed by private and government agencies for over 25 years. He explained
    that pedal misapplication is one form of unintentional acceleration with two
    phases. In the first phase, a person who intends to press on the brakes instead
    presses on the accelerator either because of initially hitting the wrong pedal
    or because the drivers foot slips off the brakes and unintentionally slides on
    to the accelerator. This phase tends to arise when the driver is distracted or
    startled.

[54]

In the second phase,
    the driver fails to detect or correct the error of having pressed on the wrong
    pedal. The driver may then enter a hypervigilant  or panicked  state and may
    not remove his or her foot from the accelerator because he or she erroneously
    believes it is on the brakes and is unable to conceptualize or implement any
    solutions to correct the error. Dr. Van Ee said that such hypervigilance, in
    combination with the atmosphere in the van and officers physical presence in
    the drivers space, could have affected the appellants ability to detect an
    error.

[55]

Dr. Van Ee could not
    opine on whether pedal misapplication actually occurred in this case. However,
    he said the following:

What I can say is that [the appellants]
    assertion that he did not intend to put the vehicle in motion has a remarkable
    similarity to these cases of unintended acceleration. They  they match up.
    They look alike. The circumstances surrounding them  have enough similarities
    and actually almost all similarities to indicate that  that may very well be
    the explanation for what occurred.

(7)

The appellants
    statement to his father

[56]

The Crown called the
    appellants father to testify at the preliminary inquiry held in 2012. The
    father had not given a statement or met with the Crown or defence counsel prior
    to testifying.

[57]

The father said he
    first spoke to the appellant about the accident sometime between July 23 and
    July 28, 2011, very soon after the breathing tubes were removed and the
    appellant regained the ability to speak. The father did not make notes of their
    discussion and could not provide a verbatim account. Moreover, he had some
    difficulty communicating in the English language. However, in general terms, he
    explained at the preliminary hearing that the appellant told him the police
    officer got mad, opened the door to the van, and pushed the appellant with one
    arm. That was when the vehicle started moving. Things were very tight. The
    appellant did not know exactly what happened. He was frozen or panicked and did
    not know if the officer was going to attack him:

Started to ask [the officer] please, you know,
    please dont do this  Then afterwards he say, like, he said its really
officer
    get mad and just come into the thing and push him with the one arm
And
    take the seatbelt time  he say, like  he trying, like body, like, you know,
its
    when the officer coming in this moving
or, you know,
the tight, very
    tight, and his body move and thats the time hes  if, you know, he sees the
    vehicle moving
and  moving and, you know, hes, he say, like, very quick
    everything happen  he doesnt know exactly what happened. He says its like
    very, very
freeze
and very, very  what do you call it,
panic
,
    when  when  you know, he was saying, like, maybe hes going to do something.
    He say that. He might, you know, going to attack me or something like that.
    [Emphasis added.]

[58]

When asked by his
    father if he drove, the appellant said he never had the intention to drive the
    vehicle after the stop. When asked by his father how the van moved, the
    appellant replied that he was pretty sure he did not do anything. He was
    panicked after the officer jumped into the car and could not say what happened:

I asked him did you drive.
He say he never
    have intention to drive this vehicle
when  after the officer stop  I ask,
    like, do you remember, like, how does it move?  Then he said 
he say, Im
    pretty sure I didnt  I didnt do anything
hes keep on telling me that
    hes, like,
panic and freeze
and he dont, like, after the officer jump
    in the car he doesnt remember, like, nothing until he wake up. Like, hes,
    sort of, can see, like a picture
but very quick
, he said, like, you
    know, he cannot do anything, things happen when and he  hes kind of  he say
    like, after the van going left  hes saying, like, hes  he doesnt know
    anything not until the point he wake up and trying to move. He say, like,
    panicking more and  and leg he couldnt move it. He doesnt know why hes not
    moving it because he trying to get out or something. [Emphasis added.]

(8)

The Crowns closing
    address

[59]

At trial, both the
    trial judge and defence counsel took issue with the following aspect of the
    Crowns closing address:

And as I had mentioned to you earlier today,
    when you look at this evidence and when you see that he was responsive and
    alert and able to carry on a conversation, dont just consider what [the
    appellant] said, but also consider what he didnt say. Thats important. This
    is less than ten minutes, presumably, after the crash, less than two minutes he
    is conscious, he is alert, he knows whats going on, right?
Dont just look
    at what he said; look at what he doesnt say. What doesnt he say?
What
    doesnt he say?
He doesnt say, man, the brakes in this van dont work. No,
    he doesnt say that. He doesnt say, I kept pushing on the brakes, but it
    wouldnt stop. Doesnt say that. He doesnt say I was trying to stop this van,
    what happened? Isnt that the very first thing he would say when somebody said
    to him what happened?
[Emphasis added.]

C.

The Structure of the trial judges charge to the
    jury, the trial judges instructions concerning the knowledge element under s.
    229(c), and the crowns closing ADDRESS

[60]

It was uncontested at
    trial that, at the time of the relevant events, Garrett Styles was a police
    officer in full uniform driving a marked police cruiser and that the appellant
    knew Constable Styles was a police officer acting in the course of his duties.
    If the jury found the appellant guilty of murder under s. 229(c) of the
Criminal
    Code
, these facts would elevate the offence to first degree murder.
    Accordingly, the trial judge appropriately structured his jury charge around
    four main questions, summarizing the elements of the offence of murder under s.
    229(c):

1.

Did the appellant cause the death of Constable Garrett Styles?

2.

Did the appellant intentionally commit a dangerous act which caused
    the death of Constable Styles?

3.

Did the appellant cause the death of Constable Styles while pursuing
    an unlawful object?

4.

Did the appellant know that by driving in a way that was dangerous
    to Constable Styles he was likely to cause death to Constable Styles?

[61]

The trial judge gave
    the jury essentially standard instructions on the knowledge element of s.
    229(c), including telling them:

·

the term likely referred to probability, and
    proof that the appellant was aware of the risk, possibility, danger, or chance
    of death as a consequence of his dangerous act was inadequate to establish that
    he knew Constable Styless death was likely;

·

to determine the appellants state of mind,
[5]
they should consider all the
    evidence;

·

they must not assume that just because Constable
    Styles died, the appellant knew his death was likely; and

·

subjective knowledge that death was likely can
    be found in one criminal act, as well as in a series of acts.
[6]

[62]

As part of his instruction on the knowledge
    element, the trial judge also instructed the jury on the common sense inference
    and reviewed for the jury the evidence relating to the appellants position
    that he did not know that Constable Styless death was likely. Concerning the
    common sense inference, the trial judge said:

You may conclude, as a matter of common sense,
    that if a sane and sober person does something that has predictable
    consequences, that person usually intends or means
[7]
to cause those consequences.
    But that is simply one way for you to determine a persons
actual
state
    of mind and what he actually meant to do. It is a conclusion that you may only
    reach, however, after considering all the evidence. It is not a conclusion that
    you must reach. It is for you to say whether you will reach that conclusion in
    this case. [Emphasis in original.]

[63]

At the conclusion of his review of the evidence
    concerning the knowledge element, the trial judge cautioned the jury about the
    impugned aspect of the Crowns closing address in the following terms:

In cross-examination. Crown counsel did not
    challenge SK's evidence that he had a limited recollection of his conversation
    and that at this trial he did not recognize Dustin Brown as being the EMS
    officer he spoke to.

Crown counsel elected not to cross-examine
    S.K. on those issues and any other issues surrounding his statements to Dustin
    Brown.

In order to use S.K.s nondisclosure of pedal
    misapplication and unintended acceleration to Dustin Brown, in order to impeach
    S.K.s credibility, it was incumbent on the Crown counsel in cross-examination
    to direct S.K. to the circumstances of the conversation so that S.K. would have
    an opportunity to explain the reasons for his nondisclosure to Dustin Brown and
    why he only stated he did not know what happened. Crown counsel did not do
    this.

The following evidence is not in dispute. S.K.
    was critically injured, his back was broken, he had experienced a traumatic
    event and had suffered catastrophic injuries.
It is for you to decide
,
    but to expect a critically injured 15-year-old moments after a violent crash to
    provide specific details as to how or why an accident happened, I suggest to
    you challenges common sense. To argue later that his failure to do so negates
    the reliability of his trial testimony, I suggest to you has little or no
    merit. [Emphasis added.]

D.

discussion

(1)

Did the trial judge err in his charge by failing
    to identify factors personal to the appellant that were relevant to the issue
    of whether he was aware of the likelihood of death under s. 229(c) of the
Criminal
    Code
?

[64]

This ground of appeal
    relates to the fourth question articulated by the trial judge, which required
    the jury to determine whether the appellant knew that the dangerous manner in
    which he drove would likely cause Constable Styless death. Given that the jury
    reached this question, they had already concluded that the appellant
    intentionally committed an objectively dangerous act that caused the death of
    Constable Styles.

[65]

The appellant submits
    that he was only 15 years old at the time of the accident and, on all the
    evidence, in a state of panic. He argues that the trial judge should have drawn
    these facts to the jurys attention specifically in relation to this fourth question,
    and, in particular, concerning whether the common sense inference should be
    drawn.

[66]

The appellant points
    out that, in the pre-charge conference, defence counsel requested a
Shand
instruction focusing the jurys attention on whether the appellant was in a
    state of panic when he set the van in motion and whether that affected his
    ability to foresee the consequences of his actions.
[8]


[67]

Further, at the
    conclusion of the jury charge, defence counsel objected to the instructions on
    the fourth question and asked the trial judge to instruct the jury that in
    considering this question, they were required to take account of the
    appellants age.

[68]

The trial judge did not
    accede to either of these requests. The Crown had objected to the proposed
Shand
instruction because, in this case, the dangerous act was not limited in time to
    when the van began to move. Rather, it continued until the van went off the
    road. The jury only had to find that the mental element existed at some point
    along this journey. As for the appellants age, in the trial judges view, in
    light of the evidence, the jury was well aware of the appellants age and level
    of maturity.

[69]

The Crown submits that
    the trial judges instructions on the mental element were accurate and
    complete. Moreover, the Crown contends that the trial judge properly qualified
    the application of the common sense inference by conducting a detailed review,
    immediately following the standard instructions, of the evidence relating to
    the appellants state of mind and the surrounding circumstances around the time
    the van was set in motion. This review included the corrective instruction
    concerning the Crowns closing address, which concluded with the statement that
    it challenges common sense to expect a critically injured 15-year-old to
    provide specific details of what happened moments after a violent crash.

[70]

In my view, the trial
    judge erred in failing to instruct the jury specifically that, before relying
    on the common sense inference to conclude that the appellant knew the manner of
    his driving was likely to cause Constable Styless death, they were required to
    consider his age and level of maturity. The trial judge also erred in failing
    to review the evidence relevant to that issue. While it would have preferable
    for the trial judge to have provided a similar caution in relation to the issue
    of panic, I am satisfied that the trial judge adequately directed the jurys
    attention to the question of panic through his review of the evidence
    concerning the appellants position on the knowledge element. I reach my
    conclusion concerning this error for several reasons.

[71]

First, this court has
    counselled that, in the context of a case tried under s. 229(c), where a
    finding of knowledge of the likelihood of death is required, a trier of fact
    must be cautious before inferring actual knowledge based entirely or
    substantially on the common sense inference. At para. 137 of
R. v. Roks
,
    2011 ONCA 526, 274 C.C.C. (3d) 1, Watt J.A. said the following:

Knowledge and foresight are states of mind. It
    seems reasonable to conclude that if intention can be inferred from the natural
    and probable consequences of conduct, by parity of reasoning, so should an
    inference of knowledge or foresight of those consequences be available.
That
    said, in cases governed by s. 229(c), a trier of fact must be cautious about
    inferring actual knowledge based entirely or substantially on the common sense
    inference
. To do so
risks substituting a constitutionally impermissible
    mental or fault element for subjective foresight. Further, to do so may
    compromise the likelihood component in s. 229(c)
:
Shand
, at para.
    209. [Emphasis added.]

[72]

In the same case, at
    para. 132, Watt J.A. noted that

[a]n assessment of the
actual
knowledge of an
    accused is an
intensely fact-specific inquiry
that requires and involves
    a careful analysis of all the circumstances in which the dangerous act occurred
    (italics in original, underlining added).

[73]

In the face of these requirements
    for caution and a fact-specific assessment, it only makes sense that factors
    that may point against relying on the common sense inference to draw an
    inference of actual knowledge of consequences should be drawn specifically to
    the jurys attention.

[74]

The specimen
    instructions relating to the knowledge element of s. 229(c) confirm as much. They
    include in the standard common sense inference instruction a specific caution
    not to draw the inference without considering whether a knowledge impairing
    influence creates a reasonable doubt about the availability of the inference in
    the particular case.

[75]

For example, writing extra-judicially in his
    specimen instructions regarding unlawful object second degree murder under s.
    229(c), Watt J.A. suggests the following wording for the common sense inference
    in relation to the knowledge element:

You may take into account, as a matter of
    common sense, that
a person usually knows the predictable consequences
of his/her actions (conduct). You may, but are not required to draw that
    inference (make that finding or, draw that conclusion) about
(NOA)
.
However,
    you must not do so if, on the whole of the evidence, including evidence of (
specify
,
    for example, intoxication, mental disorder or other knowledge impairing
    influence), you have a reasonable doubt whether
(NOA)
knew that
(NOC)
would likely (probably) [die]
from his/her
(NOA)
s dangerous
    act. It is for you to decide.

(Review and relate relevant evidence to issue)

Watts Manual of Criminal Jury Instructions
, 2d ed. (Toronto: Carswell, 2015), at p. 682. [Underlining added,
    footnote omitted.]

[76]

Second, in the context
    of a murder charge under s. 229(a)(ii) of the
Criminal Code
,
[9]
the British Columbia Court of
    Appeal has recognized that age and level of maturity are relevant
    considerations for a trier of fact in considering whether it is appropriate to
    draw the common sense inference with respect to subjective foresight of the
    consequences of ones actions:

Just as it is common knowledge that
    intoxication can affect the ability of persons to foresee the consequences of
    their actions,
it is common knowledge that lack of life experience affects
    the level of maturity and can affect the ability of youths to foresee the
    consequences of their actions
. This is not to say, however, that youths by
    virtue of their age alone have diminished capacity.
Rather, their age and
    level of maturity are relevant considerations for the trial judge in determining
    whether or not it is appropriate to draw the common sense inference that they
    actually intended the natural consequences of their actions in the
    circumstances of a given case.
Whether or not the inference is ultimately
    drawn will depend on the evidence before the trial judge:
R. v. F.M.
,
    2008 BCCA 111, 231 C.C.C. (3d) 57, at para. 24. [Emphasis added.]

[77]

In
F.M.
, the British
    Columbia Court of Appeal upheld the trial judges decision to acquit a
    15-year-old and a 13-year-old of second degree murder but convict them of
    manslaughter in a case where the two perpetrators had struck an elderly victim
    in the head with bats.

[78]

In
Shand
, at
    para. 152, Rouleau J.A., held that panic could be a factor to consider when
    assessing whether a perpetrator knew a dangerous act was likely to cause death.
    It only makes sense that age and level of maturity could be a similar factor.

[79]

It is true that on the
    facts of this case, the jury could not have overlooked the fact that the
    appellant was only 15 at the time of the incident. Nevertheless, there were
    factors that made it important and necessary that the trial judge caution the
    jury to consider the evidence relating to the appellants age and maturity
    level before relying on the common sense inference to conclude that he actually
    knew his dangerous driving was likely to cause Constable Styless death.

[80]

As a starting point,
    this was a tragic case in which a police officer was killed as a result of the irresponsible
    acts of a headstrong 15-year-old. It was important that, once the jury
    concluded that the appellants actions were intentional, they be cautioned not
    to rely on the common sense inference to find that the appellant knew his actions
    were likely to cause the officers death without carefully considering all
    relevant evidence capable of pointing away from it.

[81]

Further, in his closing
    address to the jury, Crown counsel linked Constable Styless perception  that
    is, an adult police officers perception  of the danger he was in to the
    perception of the appellant. After noting that Constables Styles threatened to
    shoot the appellant, bit him, and steered a van full of people off the road,
    the trial Crown said:

[C]learly those are the acts of someone who
    believed if he did not do something drastic, something dramatic, someone would
    be dead, likely him. So it seems clear he was certainly aware he was likely to
    die, but apparently [the appellant] was oblivious to that possibility, and at
    trial and as [defence counsel] reminded you, [the appellant] was asked this
    question and gave this answer: Question: And you knew as you drove up Highway
    48 that if Constable Styles fell out of the van he was likely going to end up
    dead, you knew that, right? His answer: That never crossed my mind. And I
    say to you dont believe that. Not only did it cross his mind, but he knew when
    he drove up Highway 48 that he would likely cause the death of Garrett Styles.

[82]

Although the Crown later
    acknowledged that 15-year-olds do not necessarily think through their actions,
    he qualified that by saying the same can be said about mature adults who
    commit unplanned murders, once again linking 15-year-olds with adults.

[83]

Finally, in reading the
    Crowns summary of its position for the jury (the last instruction the jury
    heard before retiring), the trial judge linked the issue of the appellants
    knowledge to both Constable Styles knowledge and that which anyone would
    know:

Just like Constable Styles knew that this was
    a life and death situation, so did [the appellant] knew [sic] that his
    dangerous driving would likely kill Constable Styles.



Knowledge and the likely consequence of the
    appellants conduct can be inferred from the natural and probable consequences
    of that conduct.

It would have been obvious to anyone,
    including [the appellant] that in driving as he did that Constable Styles would
    likely be killed, whether hit by an oncoming car, or thrown from the van, or to
    crash, as happened.

[84]

These comments came
    perilously close to inviting the jury to apply an objective standard to the mental
    element of the offence, the very danger Watt J.A. cautioned against in
Roks
.
In these circumstances, it was necessary for the trial
    judge to caution the jury that 15-year-olds do not have the same life
    experience as adults and that, as a result, a 15-year-old may not have the
    level of maturity to foresee the consequences of a particular course of action.

[85]

Finally, I would note
    that whereas the appellant was 15 when the accident occurred, he was 19 in May 2015
    when he testified before the jury. It was important that the jury be reminded
    that in assessing whether the appellant knew his driving was likely to cause
    Constable Styless death, it was necessary that they assess the age and
    maturity level of the 15-year-old who caused the accident and not the
    19-year-old that testified in front of them.

[86]

In this regard, the
    comments of the British Columbia Court of Appeal in
F.M.
are noteworthy.
While upholding the trial judges decision
    not to apply the common sense inference, the court stated it might have been
    preferable had the trial judge pointed to some of the evidence that
    demonstrated the immaturity of the youthful appellants:
F.M.
, at para.
    27. At para. 26, the court reviewed that evidence, which tended to support
    that:

·

the appellants were part of a group of youths
    who spent their time idly, hanging out at the park and playing with their
    cell phones and, in the case of some of them, drinking alcoholic beverages;

·

the attack on the first victim, who survived, had
    its genesis in the suggestion of an older boy that he would show one of the
    appellants how to fight and how to jump people and steal their money;

·

when the appellants emerged from the washroom
    where the first attack took place, one of the appellants told the older boy
    that his idea worked;

·

after the attack on the first victim, the group,
    including the appellants, took the Skytrain to a mall and spent all night
    walking around Vancouver and back to the park; and

·

within minutes after the attack on the second
    victim, who later died, one of the appellants began to cry and called his
    father on his cell phone.

[87]

Similarly, in this case, in addition to
    cautioning the jury to consider the age and maturity level of the appellant, it
    would have been important for the trial judge to review various statements and
    actions of the appellant before, during, and after the incident as evidence
    from which one might conclude that he lacked mature judgment:

·

the appellant was not old enough to get a
    drivers licence so he taught himself to drive in the parking lot of his
    parents restaurant without their knowledge;

·

the appellant liked to take his fathers vehicles
    without his parents permission and go joy-riding in the middle of the night,
    and he continued to do so even after being caught by police;

·

on the night in question, the appellant took his
    fathers vehicle at the encouragement of a friend;

·

the appellant and his friends drove around
    relatively aimlessly for approximately three hours in the middle of the night
    before the incident occurred;

·

the appellant repeatedly pleaded with Constable
    Styles to let him go because his parents were going to be really angry (conduct
    which the trial judge observed was not in keeping with that of an older, more
    mature person); and

·

the appellant told the paramedic at the scene of
    the crash that his parents were going to kill him and be really mad at him.

[88]

In sum, I am of the view that the trial judge
    erred in his charge by failing to identify factors personal to the appellant 
    specifically, his age and level of maturity  that were relevant to the issue
    of whether he knew that death was likely under s. 229(c) of the
Criminal
    Code
.

(2)

Did the trial judge err in excluding the
    appellants account of the events to his father given 26 days after the
    accident?

(3)

Did the trial judge err in failing to declare a
    mistrial after the Crowns closing address and in failing to provide an
    adequate corrective instruction?

(i)

Introduction

[89]

I will address these two grounds together
    because they are somewhat interrelated.

(ii)

The prohibition against admission of prior
    consistent statements

[90]

As noted by
this court in
R. v. Khan
,
    2017 ONCA 114,
136 O.R. (3d) 520,
at
    para. 25,
leave to appeal refused, [2017]
    S.C.C.A. No. 139,
prior consistent statements are presumptively
    inadmissible because they lack probative value: see also
R. v. Stirling
,
    2008 SCC 10,
[2008] 1 S.C.R. 272
,
    at paras. 5-7. This is because repetition of a statement does not prove its
    truth. Expressed otherwise, a falsehood does not become true through
    repetition. Further, it would be self-serving to allow a witness to buttress
    his or her own testimony with his or her own prior statements:
Khan
, at
    para. 25.

[91]

As Watt J.A. explained in
R. v. M.C.
, 2014 ONCA 611, 314 C.C.C.
    (3d) 336, at para. 59, prior consistent statements are an amalgam of two
    elements  a hearsay element (
i.e.
, the contents of the statement) and a
    declaration element (
i.e
., the fact that the statement was made): see
    also David M. Paciocco, The Perils and Potential of Prior Consistent
    Statements: Let's Get it Right (2013) 17 Can. Crim. L. Rev. 181, at p. 184. The
    hearsay rule takes care of the hearsay element. The prior consistent statement
    rule generally excludes the declaration element. The rationale for excluding
    the declaration element is that prior consistent statements lack probative
    value:
Stirling
, at para. 5.

[92]

However, the common law has recognized a number of exceptions to
    the general prohibition against prior consistent statements. Where a prior
    consistent statement is admissible under an exception, it is generally admitted
    for a limited purpose:
Khan
, at para. 27. Sometimes the hearsay part
    comes in and at other times only the declaration part is admitted:
M.C.
,
    at para. 61.

[93]

The exceptions to the prior consistent statement rule tend to
    exist where the purposes that underpin the general exclusionary rule would not
    be served by excluding the evidence:
M.C.
, at para. 60; Paciocco, at p.
    187. Typically, the exceptions permit introduction of the prior consistent
    statement where proof of it is relevant without an inference of credibility
    enhancement because the witness said the same thing previously:
M.C.
, at
    para. 60;
R. v. Toten
(1993), 14 O.R. (3d) 225, at pp. 255-56.

[94]

In a jury trial, where a prior consistent statement is admitted,
    the trial judge is required to instruct the jury on the purposes for which a
    statement can and cannot be used:
R. v. D.C.
, 2019 ONCA 442, at para.
    21.

(iii)

Chronology of events at trial

[95]

The defence applied at trial to introduce the
    appellants statement to his father on the ground, initially, that the
    statement was a spontaneous utterance made when the appellant was first taxed
    with the facts and was therefore admissible under the
Edgar
exception.
    By agreement of counsel, the issue was addressed after the Crown had completed
    his cross-examination of the appellant on the understanding that examination-in-chief
    and cross-examination would be re-opened if the statement was ruled admissible.

[96]

Following
voir dires
at which the
    appellants father, mother, and Dr. Van Ee testified, the appellant advanced
    several more grounds for the admission of the statement both for the truth of
    its content and for the fact that the statement was made. The appellant alleged
    that the Crown had at least implicitly suggested that he had recently
    fabricated his evidence to closely parallel Dr. Van Ees. A focus of the new
    arguments advanced by the appellant for admission of his prior statement to his
    father was to respond to this suggestion. Ultimately, the trial judge ruled the
    statement inadmissible for reasons to follow.

[97]

The defence then sought to have the appellant
    testify that he had disclosed his version of events to his father without
    revealing the content of his statement so the jury would know, simply, that he
    had given an early account of the events. The trial judge dismissed this
    application. He noted that the statement had been ruled inadmissible and he did
    not want the jury to speculate about what was said or whether it was important.

[98]

The next day, the defence renewed its
    application to admit the fact of a statement having been made as a narrative
    exception to the rule against hearsay. The trial judge again dismissed the
    application. The defence then asked to be permitted to refresh the appellants
    memory of the events by showing him what he had told his father. Again, the
    purpose of the request was to make the jury aware the appellant had given a
    prior account of the events.

[99]

The issue arose again after the Crowns closing address
    in which the Crown asked the jury to think about what the appellant did not say
    to the paramedic who attended to the appellant at the scene. The Crown suggested
    the first thing the appellant would have said, when asked what happened, was that
    he tried to stop the van, if this was indeed the truth.

[100]

Both the trial judge and the defence were
    concerned about the propriety of these comments. The defence initially
    requested that the case be re-opened and evidence of the appellants statement to
    his father be admitted as a response. However, the defence did not pursue that
    request and instead brought an application for a mistrial.

[101]

As a remedy, the trial judge offered counsel the
    opportunity to re-elect to a trial by judge alone, but the Crown refused. The
    trial judge then ruled that he would instruct the jury not to use the Crowns
    submissions to assess the appellants reliability or credibility with respect
    to the defence of pedal misapplication.
While the trial
    judge did not mention the case of
Browne v. Dunn
(1893), 6 R. 67 (H.L.),
    he did find that the trial Crown should have given the appellant an opportunity
    during cross-examination to explain why he had not given a fuller account to
    the paramedic.
However, as outlined in para. 63 above,
    rather than prohibit the jury from relying on the Crowns submissions relating
    to the appellants statement to the paramedic, the trial judge left it for the
    jury to determine whether the appellants failure to give particulars of what
    happened to the paramedic should affect his credibility.

(iv)

The trial judges reasons for ruling the
    appellants statement to his father inadmissible

[102]

In reasons delivered following the trial, the
    trial judge addressed each of the appellants arguments for the admission of
    his prior consistent statement to his father.

[103]

In response to the appellants argument that the
    statement was admissible under
R. v. Edgar
,
[10]
the trial judge noted that
    there was no independent medical evidence to support the appellants fathers
    evidence concerning the frailty of the appellants health and inability to
    communicate in the 26-day period between the accident and the appellants
    statement. In any event the trial judge concluded that whether one is
    recovering from serious injury or not, [the 26-day period] may well have
    provided [the appellant] opportunity  to think things out. Because of this
    delay, the statement did not qualify as spontaneous.

[104]

The trial judge also held that multiple
    frailties surrounding the circumstances under which the statement was made
    negated the necessary circumstantial guarantees of trustworthiness to make the
    statement admissible either as a spontaneous statement or under the principled
    approach outlined in
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.
    These frailties included the fact that the statement was not recorded in any
    fashion, his father had no notes of the conversation, his father acknowledged
    that he recalled only 70 to 80 per cent of the conversation, and while the
    appellants father claimed he was the only person present when the statement
    was made, the appellants mother testified that she, too, was present when the
    appellant provided details about the incident.

[105]

Further, in the trial judges view, the absence
    of the necessary circumstantial guarantees of trustworthiness would mean
    admitting the statement would violate the rule against oath helping, citing
R.
    v. Ruck
, 2013 ONCJ 527, at para. 24.

[106]

The trial judge also rejected the appellants
    submission that the Crowns cross-examination alleged recent fabrication,
    whether implicitly or explicitly. He relied on
R. v. Kailayapillai
, 2013
    ONCA 248, 115 O.R. (3d) 363, at paras. 42-44, leave to appeal refused, [2014]
    S.C.C.A. No. 35, for the principle that cross-examination directed merely at
    showing the accused is lying to avoid conviction does not open the door to admission
    of prior inconsistent statements.

[107]

Similarly, because he had found there was no
    basis on which to infer recent fabrication, the trial judge rejected the
    appellants argument that admitting the statement was necessary to negative any
    conclusions or inferences of recent fabrication that may be drawn by the jury.
    However, he said, [i]f required, a clear and focused direction to the jury not
    to find recent fabrication will be given.

[108]

The trial judge rejected the appellants
    argument that his statement should be admitted by analogy to s. 715.1 of the
Criminal
    Code
, which permits admission of a videotaped statement of a witness under
    18 years old. The trial judge relied on his findings that the statement had not
    been recorded and lacked reliability in reaching this decision.

[109]

Finally, the trial judge rejected the
    appellants argument that the statement should be admitted under the residual
    discretion that exists to admit defence evidence in line with
R. v. Finta
,
    [1994] 1 S.C.R. 701, and
R. v. Williams
, (1985), 50 O.R. (2d) 321, leave
    to appeal refused, [1985] S.C.C.A. No. 168. He concluded there was no basis on
    which to exercise the residual discretion given the absence of the necessary
    circumstantial guarantees of trustworthiness.

(v)

The appellants position regarding admission of
    the appellants statement to his father

[110]

On appeal, the appellant repeats the arguments
    he made in the court below. He also argues that the trial judge gave no reasons
    for not applying the narrative exception to the rule against admission of prior
    consistent statements under
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, and
Khan
. The appellant also asserts that the trial judges ruling
    was dependent on a significant factual error.

[111]

Concerning the latter issue, the appellant
    submits the trial judges finding that there was no independent medical
    evidence to support the frailty of the appellants medical condition and
    inability to speak is contradicted by the fact that photographs of the
    appellant in hospital, police notes depicting his state, and the hospital
    Discharge Summary were included in the material filed on the
Edgar
application at trial. In particular, the Discharge Summary noted his
    conditions, operations, and prognosis as well as the date the tracheotomy tubes
    were removed (July 23, 2011).

(vi)

Discussion regarding admission of the
    appellants statement to his father

[112]

I would not accede to most of the appellants
    arguments that the trial judge erred in failing to admit the appellants
    statement to his father. However, I conclude that trial judge erred in failing
    to admit the appellants statement to his father to rebut implicit allegations
    of recent fabrication arising from the overall circumstances of the case.

[113]

Contrary to the appellants submissions, I agree
    with the trial judge that the appellants statement was incapable of meeting
    the spontaneity requirement to fall within the
Edgar
exception to the rule excluding prior consistent statements
. As explained at para. 72 of
Edgar
, under that exception,

the statement is admitted not strictly as evidence of the
    truth of what was said (subject to being admissible under the principled
    approach to hearsay evidence). Rather, it is admitted as evidence of the
    reaction of an accused upon first being subject to the accusation because an
    accuseds reaction may be circumstantial evidence relevant to credibility and
    consistency, provided the accused takes the stand and exposes himself or
    herself to cross-examination.


[114]

While there is some elasticity in the case law
    concerning how proximate in time to an accusation an accuseds reaction must be
    to qualify as spontaneous, the approximately 26 days involved in this case
    simply cannot meet that requirement. The appellant was initially charged with
    first degree murder at 6:15 a.m. on the morning of July 28, 2011. There was
    evidence that he had some communication with his parents by alphabet board in
    the ensuing 26 days and that he was visited on two occasions by a lawyer hired
    by his father. In my view, the trial judges finding that he had had time to think
    things out is unassailable.

[115]

Similarly, I see no error in the trial judges
    finding that the appellants statement lacked the necessary circumstantial
    guarantees of trustworthiness to support its admission under the principled
    exception to the hearsay rule. As the trial judge noted, the statement was not
    recorded in any fashion. The appellants father had no contemporaneous notes,
    he gave his first account of the statement at the preliminary inquiry held in June
    2012, the circumstances under which the statement was made were not entirely
    clear, and the appellants father did not claim a complete recall of the
    statement.

[116]

I also agree with the trial judge that the lack
    of contemporaneous recording precluded admission by analogy to s. 715.1 of the
Criminal
    Code
.

[117]

Further, the statement did not possess
    circumstantial indicia of truthfulness that would allow its admission under the
    narrative as circumstantial evidence exception to the prohibition against
    admission of prior consistent statements. Moreover, the statement was not being
    tendered as true narrative  that is, as background information to assist the
    witness in recounting events in a comprehensible manner.

[118]

In my view, however, one aspect of the Crowns
    cross-examination was at least on the periphery of raising recent fabrication. As
    noted at para. 52 above, at one stage of the appellants cross-examination, the
    Crown made the following suggestion:

Q. You see, sir, Im going to suggest to you the
only reason
you say I was startled. I was surprised that he opened the
    door is because
youre trying to provide some explanation
as to why, in
    this startle and surprise, you hit the gas pedal unintentionally, thats why
    youre saying you were startled and surprised, right? [Emphasis added.]

[119]

The Crown asserts that this suggestion was
    entirely consistent with the Crowns overall theory that the appellant was
    fabricating his evidence from the outset as a means of escaping liability. That
    may be one interpretation of this suggestion. In that regard, I note that, in
    his post-verdict reasons for excluding the appellants statement, the trial
    judge gave no explanation for finding the Crown had not alleged recent
    fabrication, either expressly or implicitly.

[120]

However, the Crowns suggestion should be viewed
    in the context of the entire trial, at which the appellants expert proposed to
    explain that phase one of the phenomenon of pedal misapplication tends to arise
    in circumstances where the driver is distracted or startled. As a result, the
    Crowns suggestion can also be viewed as at least an implicit suggestion that
    the appellant was tailoring his evidence to correspond with his experts
    proposed evidence  a classic example of an allegation of recent fabrication.

[121]

This interpretation of the Crowns suggestion
    becomes even stronger when viewed in the context of the Crowns closing address
    in which the Crown invited the jury to consider what the appellant had not said
    when asked by the paramedic about what had happened. The Crown explained the
    appellant had not said he was trying to hit the brakes. In other words, the
    Crown invited the jury to disbelieve the appellant because he had not made a
    statement at the earliest opportunity in response to a question about what had
    happened that was consistent with his evidence at trial. Put another way, the
    appellant had not made a prior consistent statement  or proclaimed his
    innocence  at the earliest opportunity. This carried with it at least the
    implicit suggestion that the appellant had fabricated his evidence at some time
    after the events  and, in the context of the experts evidence, that he had
    done so in a way that would correspond with the experts evidence.

[122]

To be admissible under the recent fabrication
    exception to the rule against admission of prior consistent statements, the
    statement sought to be adduced must not only respond to an allegation of recent
    fabrication, whether express or implied, and be made after the event being
    testified about (and before the alleged recent fabrication), but it must also
    be consistent with the testimony it is offered to support: David M. Paciocco
    & Lee Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law,
    2015), at p. 531.

[123]

Here there could be issues about consistency,
    both because the appellant did not claim in his statement to his father that he
    was startled and because he did not claim that he was trying to hit the
    brakes.

[124]

However, the appellants father said the
    appellant spoke of panic and freeze. Although the terms may not be identical,
    in my view, the feelings they describe are sufficiently similar to be capable
    of rebutting the implicit allegation that the appellants evidence of feeling
    startled and surprised was recently fabricated so as to support the theory of
    pedal misapplication. To conclude otherwise would, in all the circumstances, be
    splitting hairs.

[125]

Further, although the appellant did not
    specifically tell his father that he was pushing the brakes, he did tell his
    father that he never intended to drive and did not think he did anything to
    make the vehicle move. In my view, these concepts 
i.e.
,

not intentionally
    making the vehicle move and pushing the brakes  are sufficiently connected
    to be capable of rebutting the Crowns implicit allegation that the appellants
    evidence about pedal misapplication was recently fabricated. Again, to conclude
    otherwise would be to consider the Crowns comments too narrowly.

[126]

Considered in the context of the overall
    circumstances of the trial, in my view, the appellants statement to his father
    should have been admitted to respond to an implicit allegation of recent
    fabrication and to provide overall context for the jury about what the
    appellant had said close in time to the incident  and prior to obtaining an
    experts report on pedal misapplication. Moreover, neither the evidence nor the
    jury instructions would have unduly lengthened or complicated the trial. Jury
    instructions cautioning against misuse of prior consistent statements are
    simple and easy to understand. With the assistance of counsel, it would not
    have been difficult to craft an instruction concerning the permissible use of
    the appellants statement to his father.

(vii)

Discussion regarding failure to declare a
    mistrial and adequacy of jury instruction concerning the Crowns closing address

[127]

In my view, the trial judges jury instructions
    concerning the Crowns closing address was inadequate. However, I reject the
    appellants submission that the trial judge erred in failing to declare a
    mistrial following the Crowns comments in his closing address questioning the
    appellants failure to tell the paramedic who attended to him that he tried to
    stop the van. A mistrial is a discretionary remedy of last resort:
R. v. A.G.
,
    2015 ONCA 159, 124 O.R. (3d) 758, at paras. 50-52. Had the trial judge
    instructed the jury not to use the Crowns closing submissions in assessing the
    appellants credibility on pedal misapplication as he originally proposed, in
    my view, that would have been adequate to remedy the prejudice flowing from the
    comments in the Crowns closing address.

[128]

On appeal, the Crown argues there was no
    violation of the rule in
Browne v. Dunn
because the appellant testified
    in examination-in-chief that he did not recognize the paramedic and did not
    really recall their conversation. This was because he was in a lot of pain and
    terrified as he could not move his legs or his arms following the crash. There
    was nothing contradictory to put to the appellant in the circumstances. In any
    event, even if there was a
Browne v. Dunn
violation, the Crown submits
    the trial judges instruction went further than required, by effectively
    instructing the jury not to factor in Crown counsels point in his closing address
    in assessing the appellants credibility.

[129]

I do not accept the Crowns submission. Whether or
    not there was a violation of the rule in
Browne v. Dunn
, the real
    problem with the Crowns closing address is that, at least implicitly, it
    invited the jury to infer that the appellant fabricated his evidence
after
the accident and
in order to
correspond with his experts evidence about
    pedal misapplication.

[130]

Particularly given that he declined to admit the
    appellants statement to his father, the trial judge should not have left it to
    the jury to decide whether to use [the appellants] nondisclosure of pedal
    misapplication and unintended acceleration to [the paramedic], in order to
    impeach [the appellant]s credibility. Rather, he should have instructed them in
    strong terms that it would be prejudicial and unfair to the appellant for them
    to do so.

(4)

Did the trial judge err in his charge by failing
    to alert the jury to the significance of lies under oath at trial by two key
    Crown witnesses?

[131]

In his charge to the jury, the trial judge
    reviewed the use the jury could make of the appellants out-of-court statements,
    including those made immediately before, during, and after the traffic stop. In
    doing so, the trial judge alerted the jury to the factual questions of who first
    raised the subject of fleeing when Constable Styles returned briefly to his
    cruiser and how B.D. knew about the brass knuckles.

[132]

In their trial testimony, F.D. and B.P. both
    denied that F.D. said anything about the brass knuckles or that he encouraged
    the appellant to leave the scene. However, B.D. had advised police about the
    brass knuckles in her statement to the police.

[133]

The trial judge told the jury it was for them to
    determine how B.D. knew about the brass knuckles and that they may conclude
    that both F.D. and B.P. were untruthful and lied about this issue. He also told
    the jury that a deliberate lie under oath is always serious and may taint a
    witnesss entire testimony. However, he left it to the jury to decide whether
    the two had deliberately lied and, if they had, to what extent, if any, the
    remainder of their evidence [was] tainted.

[134]

After the jury charge was completed, defence
    counsel objected that the trial judge failed to remind the jury that in his
    closing address, Crown counsel had acknowledged that F.D. and B.P. could not
    explain how B.D. knew about the brass knuckles. On appeal, the appellant
    submits that the trial judge should have told the jury that there was no doubt that
    F.D. and B.P. had lied. Further, he should have told them to consider the fact
    of their lying not only in the context of the remainder of their evidence but
    also specifically in the context of their claims that it was the appellant who
    first raised the idea of fleeing and their evidence that the appellant asked
    repeatedly, Should I dip?

[135]

I reject the appellants argument that the trial
    judge made any error in this aspect of his instructions. The jury was the trier
    of fact; the trial judge accurately reviewed the evidence concerning the issue
    of whether F.D. and B.P. had lied and gave the jury proper instructions on how
    to assess the significance of a lie. As I have said, the trial judge gave these
    instructions in the context of explaining to the jury the use they could make
    of the appellants out-of-court statements and alerting them to the factual
    questions of who first raised the subject of fleeing and how B.D. knew about
    the brass knuckles. It could not have been lost on the jury that if they were
    satisfied F.D. and B.P. had lied, they should consider the impact of the lies
    on the question of who first raised the subject of fleeing.

(5)

Was the first degree murder verdict
    unreasonable?

[136]

Following the preliminary inquiry, the
    preliminary inquiry judge discharged the appellant on the first degree murder
    charge, but committed him for trial on the lesser offence of manslaughter. On a
certiorari
application, a Superior Court judge quashed the discharge on
    first degree murder and committal for manslaughter. She remitted the matter to
    the preliminary inquiry judge with a direction that the appellant be committed
    for trial for first degree murder under ss. 229(a)(ii) and 229(c) of the
Criminal
    Code
. This court subsequently upheld that ruling:
R. v. S.K.
, 2014
    ONCA 138.

[137]

At the close of the Crowns case, the defence
    applied for a directed verdict, arguing that a properly instructed jury could
    not reasonably return a murder verdict under either subsection. The trial judge
    dismissed the defence application. At a pre-charge conference, the Crown
    requested that the trial judge leave only s. 229(c), explaining that s. 229(a)(ii)
    was a weaker basis for liability: if the Crown could not prove murder under s.
    229(c), it would not succeed under s. 229(a)(ii) either.

[138]

In his factum on appeal, the appellant argues
    that the first degree murder verdict was unreasonable because there was no
    evidence from which a properly instructed jury could reasonably infer that,
    during the relevant time, the appellant knew that his actions were likely to
    cause Constable Styless death. The appellant testified that he did not turn
    his mind to that possibility. The three passengers evidence was consistent
    with what Dr. Van Ee called a hypervigilant state: the appellant was focused on
    controlling the steering wheel and oblivious to much of what was going on in
    the vehicle.

[139]

Further, the appellant submits that circumstantial
    evidence could not support a finding that the appellant knew that his actions
    were likely to cause death. That evidence indicated the appellant was holding
    onto Constables Styles firmly with his left hand and that the officer was
    gripping the interior of the vehicle with all his strength. Further, the
    evidence concerning the relatively large size of the appellant and the officer
    and the fact that the officer did not fall out even as the van traversed rough
    terrain demonstrated that the officer was firmly wedged in the space between
    the appellant and the steering wheel and not at risk of falling out in the
    ordinary course of driving down the road.

[140]

Ultimately, Constable Styless death was caused
    by the rollover of the van after it was turned off the road, travelled through
    a ditch and up an embankment, and became airborne. These events were not
    predictable. The appellant submits that, applying the lens of judicial
    experience, the evidence did not establish that death was, in fact, likely 
    much less that the appellant subjectively knew it.

[141]

In oral argument on appeal, the defence also
    submitted that, applying the lens of judicial experience, any inference that
    the appellant purposely left the scene and thereby intentionally committed a
    dangerous act was also speculative and unreasonable. This would make not only
    the guilty verdict on first degree murder, but also a guilty verdict on the
    included offence of manslaughter unreasonable.

[142]

In support of this argument, the appellant notes
    that he testified that he did not intentionally press the gas pedal. The
    credibility of his evidence was supported on a scientific basis by the evidence
    of Dr. Van Ee. The passengers evidence concerning whether the appellant
    activated the gear shift was entirely inconsistent and therefore unreliable 
    as was their evidence as to who first suggested the idea that the appellant
    dip or leave. No physical evidence was available to support a conclusion that
    the acceleration was intentional.

[143]

I would not accept the appellants submissions. I
    will turn first to the impugned inference that the appellant intentionally
    committed a dangerous act. The appellants position on this issue at trial
    rested wholly on the appellants credibility. Although it is true that Dr. Van
    Ees evidence provided a scientific basis for the appellants explanation of
    what happened, Dr. Van Ee acknowledged that he was not in a position to opine
    on what actually happened. Despite his evidence, it remained open for the jury
    to reject the appellants claim that he did not intentionally set the van in
    motion. There were many reasons why the jury might do so. Among others, the
    appellant gave a false name to Constable Styles, which was the second time he
    had given a false name to a police officer after being stopped while driving;
    he deceived his parents by teaching himself to drive; he deceived his parents
    by repeatedly taking a car out at night without their permission as an unlicenced
    driver and persisted in doing so even after being caught; and he expressed
    significant concern over what his parents reaction might be if they found out
    he had resumed driving. Particularly having regard to these factors and their
    potential impact on credibility, it was clearly open to the jury to reject the
    appellants evidence and conclude that he had intentionally set the van in
    motion. The fact that there was another available inference did not preclude
    the jury from determining based on the whole of the evidence that it was not a
    reasonable inference. In the result, finding that the appellant intentionally
    set the van in motion was not unreasonable.

[144]

I now turn to the reasonableness of the finding
    that the appellant knew his dangerous act was likely to cause officer Styless
    death. Essentially the same evidence that justified the dismissal of the
    directed verdict application, which was substantially the same evidence that
    justified committal on a charge of first degree murder, supports the
    reasonableness of that finding. That evidence includes:

·

the testimony of the
    passengers that with the officer reaching across the appellant into the van,
    the van accelerated quickly from the right shoulder of the road and up the
    highway;

·

the evidence that it was
    dark out and the road was wet;

·

the description of the
    manner in which Constable Styles was trying to hold on inside the van as it
    moved;

·

the distance that the van
    travelled with the officer half in and half out of the van, unbelted;

·

the testimony of B.D. that
    the van was swerving across the highway ;

·

the evidence of B.D. that
    not only were the passengers telling the appellant to stop, but F.D. was
    punching the appellant;

·

the testimony of B.D. that
    the appellant was continuously saying no;

·

the testimony of B.P. that
    Constable Styles bit the appellant, and of B.P. and B.D. that the officer
    threatened to shoot him if he did not stop;

·

the testimony of B.P. that
    the van did not slow down at any time before it hit the ditch;

·

the evidence that the appellant
    had one or both hands on the steering wheel throughout the driving, which is
    some evidence from which an inference can reasonably be drawn that he was steering
    the van while it was in motion on the highway;

·

the evidence that although
    the appellant and Constables Styles were somewhat of a tight fit between the
    steering wheel and the drivers seat, Constable Styles was able to manoeuvre
    sufficiently to put himself in a position to turn the steering wheel to the
    left; and

·

the evidence of the movement
    of the van once it hit the ditch, from which it can reasonably be inferred that
    the van travelled off the road with some speed.

[145]

Unlike the situation on the
certiorari
application and the directed verdict application, when considering the
    reasonableness of the murder verdict, this evidence must now be viewed in the
    context of knowing that the jury concluded that the appellant intentionally put
    the van in motion. Thus, we have the driver of a van intentionally accelerating
    down a highway in an erratic fashion with an unbelted passenger hanging partly
    out of the drivers side of the vehicle.

[146]

Even taking account of the evidence that the
    appellant was attempting to hold onto the officer and the fact that the trial
    judge erred in failing to instruct the jury to consider the appellants age and
    the evidence relating to his level of maturity before applying the common sense
    inference, I would not conclude that the murder verdict was unreasonable. The
    appellant intentionally created a life-threatening situation and was persisting
    in that course of conduct despite the threats and admonitions of others in the
    van. To hold the murder verdict unreasonable would be to effectively conclude
    that 15-year-olds are incapable of appreciating the likely consequences of
    their actions. The question here was whether this 15-year-old did so. That was
    a question for the jury to decide taking account of the whole of the evidence.

E.

The Crowns request to apply the Curative proviso

[147]

I would decline the Crowns request to apply the
    curative proviso. None of the errors I have identified are minor. The failure
    to instruct the jury to consider the appellants age and level of maturity
    before relying on the common sense inference directly impacts one of the
    elements of the offence. The second and third errors affect trial fairness. The
    Crowns case that the appellant committed a dangerous act knowing it was likely
    to cause the officers death cannot be characterized as overwhelming as it
    hinged on whether the appellant intentionally set the van in motion. This
    involved an issue of credibility. Further, I cannot say that the result would
    necessarily have been the same had the second and third errors not been made.

F.

Disposition

[148]

Based on the foregoing reasons, I would allow
    the appeal, set aside the appellants conviction and order a new trial. In
    light of this proposed disposition, it is unnecessary that I address the
    Crowns arguments on its sentence appeal.

Janet
    Simmons J.A.


Tulloch J.A.
    (Concurring):

I. OVERVIEW

[149]

I agree with my colleagues careful reasons
    explaining why the trial judge erred in his charge by failing to identify
    factors personal to the appellant, such as his age and level of maturity, that
    were relevant to the issue of whether he knew that death was likely under s.
    229(c) of the
Criminal Code
R.S.C. 1985, c. C-46. This error is
    sufficient to allow the appeal since, as my colleague explains, it directly
    impacts one of the elements of the offence. I also agree with my colleagues
    holding that the trial judge should have given the corrective instruction that
    he originally said he would give in response to the Crowns closing address. I
    similarly share my colleagues conclusion that the trial judges treatment of
    the evidence of F.D. and B.P. was adequate and my colleagues rejection of the
    appellants unreasonable verdict argument. Likewise, I agree with her
    conclusion that the appellants statement did not meet the requirements for
    admissibility under the exception recognized in
R. v. Edgar
, 2010 ONCA 529,
    101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466, the
    principled exception to the hearsay rule, by analogy to s. 715.1 of the
Criminal
    Code
, or under the narrative as circumstantial evidence exception to the
    prohibition against the admission of prior consistent statements.

[150]

However, I disagree with my colleagues
    conclusion that Crown counsel implicitly alleged recent fabrication in a single
    passage of his cross-examination of the appellant. That passage must be
    understood in the context of the Crowns entire cross-examination of the
    appellant. This context makes clear that the jury would not have understood
    Crown counsel to have alleged recent fabrication but instead that Crown
    counsels position was that the appellant was simply lying to avoid conviction.
    Nor can Crown counsels allegation of recent fabrication in the closing address
    be used to hold that the trial judge erred in failing to admit the statement.
    The trial judge had to make his ruling on recent fabrication prior to the Crowns
    closing. Following the Crowns closing, the defence no longer sought the
    admission of the statement and argued that reopening the case to admit the
    statement would prejudice the defence. Accordingly, it is inappropriate to rely
    on the Crowns closing to hold that the trial judge erred in failing to admit
    the statement. The real issue following the Crowns closing was not the
    admissibility of the statement but the adequacy of the trial judges corrective
    instruction. As I have explained, I agree with my colleague that this
    corrective instruction was inadequate.

[151]

I also disagree with my colleagues conclusion
    that the trial judge should have admitted the statement to provide the jury
    with overall context about what the appellant had said close in time to the
    incident and prior to obtaining an expert report on pedal misapplication. In my
    view, the overall context basis of admission adds nothing to the recent
    fabrication basis of admission and only risks confusing the jury.

II. ANALYSIS

A.

rECENT FABRICATION

(1)

The Law

[152]

As my colleague states at para. 122 of her
    reasons, there are three requirements to trigger the recent fabrication
    exception. First, the statement must be consistent with the testimony it is
    offered to support. Second, the witness must have made the statement after the
    event the witness is testifying about. Third, the statement must predate the
    point in time when the opposing party claims the witness first adopted the
    version of events the witness is testifying to at trial. See David M. Paciocco &
    Lee Stuesser,
The Law of Evidence
, 7th ed. (Toronto: Irwin Law, 2015),
    at p. 531.

[153]

As is apparent from the third element of this
    definition, what is critical to triggering the recent fabrication exception is
    the identification by the opposing party of a point in time that gives rise to
    a motive to fabricate. As the Supreme Court held in
R. v. Stirling
, 2008
    SCC 10, [2008] 1 S.C.R. 272,

at para. 5, a prior consistent statement
    admitted to rebut recent fabrication has probative value because it can show
    that the witness story was the same even before a motivation to fabricate
    arose. Accordingly, as Watt J.A. held in
R. v. Vassel
, 2018 ONCA 721,
    365 C.C.C. (3d) 45, at para. 124, it is essential to every allegation of
    recent fabrication that the opposing party assert that
at some identifiable
    point in time
the witness began to make the claim being challenged
    (emphasis added).

[154]

To trigger the recent fabrication exception, the
    opposing partys express or apparent position must be that a witness has made
    up the false story at some point after the event the witness testified about
    occurred. An allegation of recent fabrication may be implicit as well as
    express. However, it is not enough that an implicit allegation of recent
    fabrication is simply one possible interpretation of a question asked in
    cross-examination. Instead, as the Supreme Court held in
Stirling
, at
    para. 5, what is required is that the apparent position of the opposing party
    is that a witness has recently fabricated evidence. The court must determine
    the opposing partys apparent position by analyzing the circumstances of the
    case, the evidence of the witnesses called, and the conduct of the trial:
R.
    v. Evans
, [1993] 2 S.C.R. 629, at p. 643;
R. v. Campbell
(1977), 17
    O.R. (2d) 673 (C.A.), at p. 686. In particular, the court should consider
    whether the opposing party ever suggested to the witness a point in time when
    the witness would have decided to lie to avoid conviction:
Vassel
, at
    para. 130.

[155]

An opposing party can thus attack a witness
    credibility or reliability without triggering the recent fabrication exception
    as long as the opposing party does not allege that the witness made up the
    false story at some point after the event the witness testified about occurred.
    As the Supreme Court held in
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R.
    19, at para. 33, a mere contradiction in the evidence will not constitute an
    allegation of recent fabrication. Similarly, as Doherty J.A. held in
R. v.
    Kailayapillai
, 2013 ONCA 248, 115 O.R. (3d) 363, at para. 42, leave to
    appeal refused, [2014] S.C.C.A. No. 35, counsel may pursue cross-examination
    intended to show that the accuseds testimony is false without alleging recent
    fabrication. In particular, if the allegation is merely that the accused is
    lying to avoid conviction, there is no allegation of recent fabrication because
    there is no suggestion that an event other than the accuseds perpetration of
    the crime gave rise to a motive to fabricate:
Kailayapillai
, at para.
    44.

(2)

Application

(a)

Deference to the Trial Judge

[156]

The starting point of my analysis is that the
    trial judges finding that the Crown did not allege recent fabrication in
    cross-examination is entitled to some deference. The trial judge had a front
    row seat during the entire three-day examination-in-chief and cross-examination
    of the appellant. He listened to the evidence on the
voir dire
and the
    detailed submissions on admissibility of both defence and Crown counsel. He was
    best placed to determine whether an implicit allegation of recent fabrication
    arose from the Crowns cross-examination of the appellant.

[157]

I disagree with my colleagues suggestion, at
    para. 119 of her reasons, that the trial judges failure to give an explanation
    in his post-trial reasons for his ruling that the Crown had not alleged recent
    fabrication removes the need for deference. It would have been preferable if
    the trial judge had given such reasons. However, his reasons for finding the
    Crown had not alleged recent fabrication are apparent from his comments during
    the submissions at the
voir dire
and are responsive to the arguments the
    defence made at the
voir dire
.

[158]

At the
voir dire
, the principal
    submission of the defence was that the circumstances of the case made it likely
    that the jury would consider the appellants evidence as recent fabrication.
    The defence stressed the fact that the appellant was testifying four years
    following the event and had called expert evidence to support his explanation.
    Defence counsel submitted that these circumstances call for recent fabrication
    thinking on the part of the trier of fact. The Crown had suggested that the
    appellant made up his evidence to avoid getting into trouble. The defence
    argued that this suggestion would lead the jury to infer that the appellant
    made up his evidence in response to the expert evidence on pedal
    misapplication. The defence further submitted that this danger was so strong
    that the statement should still be admitted even if the Crown did not expressly
    or implicitly allege recent fabrication. The prospect that the circumstances of
    the case would enable the jury to infer recent fabrication thus necessitated
    the s admission of the statement.

[159]

Notably, defence counsel did not specifically
    point to the passage that the appellant now alleges constituted an allegation
    of recent fabrication. Instead, defence counsel focused on the final question
    the Crown asked the appellant in cross-examination. In that question, Crown
    counsel stated that your explanation for this all happening unexpectedly,
    surprisingly to you, is simply made up so that you cannot get in trouble,
    right?

[160]

The trial judge expressed considerable
    difficulty with the defence submissions on recent fabrication. In response to
    defence counsels submissions, he stated:

But by simply
    saying to any witness, in any trial, youve made this up, this story is
    concocted, does that open the doorwhere there is some evidence that the
    accusedhad said something exculpatory earlier. Thats the issue I think we
    have to grapple with because every time the Crown makes that kind of suggestion
    doesnt kick open the door.

[161]

This statement by the trial judge explains his
    ruling. The trial judge did not accept that Crown counsels questions designed
    to show that the appellant had made up his story, particularly the Crowns
    final question to the appellant, constituted an allegation of recent
    fabrication, whether express or implied. Instead, the trial judge concluded
    that Crown counsel had simply alleged that the appellant was lying to avoid
    conviction. This conclusion is responsive to the arguments on recent
    fabrication that defence counsel put to the trial judge at the
voir dire
,
    namely that the Crowns bare allegation that the appellant had made up his
    evidence was sufficient to trigger the recent fabrication exception given the
    circumstances of the case.

(b)

The Crown Did Not Allege Recent Fabrication in Cross-Examination

[162]

My colleague focuses on one question from the
    Crowns lengthy cross-examination of the appellant to ground her finding that
    the Crown alleged recent fabrication. I will refer to this question as the
    impugned passage. My colleague acknowledges that one possible interpretation of
    the Crowns suggestion in this passage is that the Crown was alleging that the
    appellant was fabricating his evidence from the outset to escape liability.
    However, she concludes that, considered in the context of the entire trial,
    especially the proposed evidence of the appellants expert, Dr. Van Ee, the
    Crowns suggestion can also be viewed as containing an implicit suggestion that
    the appellant was tailoring his evidence to correspond with his experts
    proposed evidence.

[163]

In my view, my colleague effectively analyzes
    the impugned passage in isolation from the rest of Crown counsels
    cross-examination of the appellant. When the impugned passage is considered in
    the context of the Crowns entire cross-examination of the appellant, it
    follows that the jury would not have understood the Crowns apparent position
    to be that the appellant had recently fabricated his evidence. The Crowns
    entire cross-examination of the appellant, including the passages that directly
    preceded and followed the impugned passage, make clear that the Crowns
    position was that the only reason the appellant stated he was startled was that
    he was lying to avoid conviction.

[164]

For ease of reference, I reproduce the impugned
    passage below:

Q. You see, sir,
    Im going to suggest to you the only reason you say I was startled. I was
    surprised that he opened the door is because youre trying to provide some
    explanation as to why, in this startle and surprise, you hit the gas pedal
    unintentionally, thats why youre saying you were startled and surprised,
    right?

A. Sorry, youre
    not me. I dont think its fair for you to say what I felt, or assume what I
    felt.

[165]

If the impugned passage is seen in isolation
    from the rest of the cross-examination, an implied allegation of recent
    fabrication is one possible interpretation. The appellant stresses that Crown
    counsel emphasized the word startled, a word contained in Dr. Van Ees expert
    report and that Dr. Van Ee used in his trial testimony that followed the
    appellants testimony and the
voir dire
ruling. This emphasis, coupled
    with the statement that the only reason the appellant stated he was startled
    was to provide some explanation for unintentional acceleration, in the
    appellants eyes demonstrates that Crown counsel was alleging that the
    appellant tailored his evidence to match the anticipated expert evidence about
    pedal misapplication. If the appellants interpretation of this question is
    accepted, the question would constitute an implicit allegation of recent
    fabrication. The appellants reception of Dr. Van Ees expert report would be
    an intermediate event between the crash and the appellants trial testimony that
    gave the appellant a new reason to fabricate.

[166]

However, the following six factors make clear
    that, when considered in context, the jury would not have understood Crown
    counsels apparent position to be that the appellant had recently fabricated
    his evidence. Instead, the jury would have understood the Crowns reference to
    the only reason in the impugned passage as an argument supporting the Crowns
    explicit position that the only reason the appellant stated he was startled was
    that he was lying to avoid conviction.

[167]

First, the dominant theme of Crown counsels
    cross-examination of the appellant was to demonstrate that the appellant lies
    to avoid getting into trouble and that the appellants assertions about
    unintentional acceleration were implausible in light of the evidence of the
    other witnesses. For instance, Crown counsel elicited from the appellant in
    cross-examination that he had planned to lie to the police if stopped while
    driving and had concluded on one occasion that it was better to lie [to his
    father] to avoid getting into more trouble than to tell the truth. Crown
    counsels questioning challenged the appellants testimony and attempted to
    show that it was implausible and inconsistent with the evidence of the other
    witnesses. Crown counsels final question to the appellant shows that this was
    the dominant theme. As the Crown put to the appellant, your explanation for
    this all happening unexpectedly, surprisingly to you, is simply made up so that
    you cannot get in trouble, right?

[168]

Second, the questioning that led up to and
    followed the impugned passage was focused on demonstrating that the appellants
    assertions were inconsistent with the evidence of the other witnesses and
    inherently implausible. For instance, prior to the impugned passage, Crown
    counsel put to the appellant that his testimony that he thought or hoped
    Constable Styles would just walk away when the appellant refused to get out of
    the vehicle was implausible. In the question directly preceding the impugned
    passage, Crown counsels question suggested to the appellant that it made no
    sense for him to be startled because he must have expected the officer to pull
    him out of the vehicle when he refused to exit. Immediately following the
    impugned passage, Crown counsel continued this line of questioning, suggesting
    that it was improbable that the appellant thought as long as you kept begging
    [Constable Styles] would somehow disappear and go back to his cruiser and go
    home.

[169]

Third, I would note that Crown counsel did not
    use any language referring to the timing of the appellants testimony in the
    impugned passage. This is significant because, as this court held in
Vassel
,
    at para. 124, an allegation of recent fabrication must incorporate an
    assertion that
at some identifiable point in time
the witness began to
    make the claim being challenged (emphasis added). The absence of language such
    as you now say in this passage, which would have directed the jurys
    attention to the timing of the appellants testimony, weighs against the appellants
    submission that implicit in the question was the allegation that the appellant
    only adopted his story after learning of Dr. Van Ees expert evidence.

[170]

Fourth, the appellant himself testified in his
    evidence-in-chief that Constable Styles startled him by reaching into the
    car. Crown counsels reference to the word startled in the impugned passage
    and elsewhere in cross-examination must be understood in this context. Thus, I
    do not accept that Crown counsels reference to the appellants statement that
    he was startled tends to show that Crown counsel was implicitly alleging
    recent fabrication. Crown counsel was entitled to put the appellants own words
    back to him and allege that it was implausible that he would be startled.

[171]

Fifth, Dr. Van Ees evidence would have helped
    dispel any suggestion that the appellant was tailoring his claim of
    unintentional acceleration to match the evidence of Dr. Van Ee. In
    examination-in-chief, Dr. Van Ee testified that the appellants counsel had
    asked him to evaluate whether the appellants assertion that he did not
    intentionally set the vehicle in motion or accelerate accorded with the
    principles of biomechanics. Likewise, Crown counsel began his cross-examination
    of Dr. Van Ee by emphasizing that the appellants counsel had retained Dr. Van
    Ee to evaluate the appellants assertion that he did not intentionally set the
    vehicle in motion. The jury would thus have understood that the appellant
    asserted that he did not intentionally set the vehicle in motion prior to retaining
    Dr. Van Ee.

[172]

Sixth, as I have explained, defence counsel did
    not mention the impugned passage during his submissions at the
voir dire
on recent fabrication and did not focus his argument on the Crowns apparent
    position being an allegation of recent fabrication. Defence counsel instead
    stressed the final question in the Crowns cross-examination, which, as I have
    explained, merely alleges that the appellant was lying to avoid conviction. The
    fact that defence counsel did not focus on the impugned passage despite giving
    fulsome submissions on the
voir dire
suggests that the interpretation of
    this passage as containing an allegation of recent fabrication is not as strong
    as my colleague considers it to be. Moreover, defence counsel did not focus his
    submissions on the argument that the Crowns apparent position was that the
    appellant had recently fabricated his evidence. Instead, defence counsels
    submissions focused on the risk that the jury would infer recent fabrication
    from the circumstances of the case regardless of Crown counsels express or
    apparent position on recent fabrication. Defence counsels seeming lack of
    confidence in the argument that the Crowns apparent position alleged recent
    fabrication weighs against the interpretation of the impugned passage that the
    appellant now advances.

[173]

These six factors lead me to conclude that the
    jury would not have understood the impugned passage as suggesting that Crown
    counsels apparent position was that the appellant was tailoring his evidence
    to match that of Dr. Van Ee. The jury would have instead understood Crown
    counsels position to be that the appellant was lying because he had committed
    the crime and wanted to avoid conviction, and that his testimony was inherently
    implausible and at odds with the other evidence. I would adopt the reasons of
    Watt J.A. in
Vassel
, at para. 130, as applicable to the case at bar:

The
    allegation or implication was thatthe appellant was simply lying to avoid
    conviction. In other words, his motive to fabricate was his invol
vement in the [crime]. No point in time when he would have
    decided to lie to avoid conviction was suggested to him. Any alleged prior
    consistent statement would therefore have nothing to rebut.

(c)

Crowns Closing Not a Basis to Attack Admissibility Ruling

[174]

The principal factor that my colleague appears
    to rely on to find that the trial judge should have admitted the statement was
    the Crowns closing address. My colleague appears to rely on the closing
    address to prefer the interpretation of the impugned passage as an allegation
    of recent fabrication over the contrary interpretation that the Crown was
    simply alleging that the appellant was lying to avoid conviction.

[175]

I disagree with my colleague that it is
    appropriate to use the Crowns closing as a basis to impugn the trial judges
    ruling that the statement was inadmissible. The trial judge had to decide
    whether the Crown had alleged recent fabrication and thus whether the statement
    was admissible before the Crowns closing. Following the Crowns closing, the
    issue was no longer the admissibility of the statement but the adequacy of the
    corrective instruction.

[176]

I agree with my colleague that Crown counsel
    alleged a form of recent fabrication in the closing. Crown counsel stressed
    that the appellant did not mention unintentional setting in motion to the
    paramedic. He then asked the jury, [i]snt that the very first thing [the
    appellant] would say when somebody said to him what happened? In other words,
    Crown counsel alleged that if the appellant was truthful, he would have raised
    unintentional setting in motion in his conversation with the paramedic. The
    implication is that the appellant invented the unintentional setting in motion
    account following his conversation with the paramedic. As this court held in
Campbell
,
    at p. 687, to allege that a witness failure to mention a circumstance on an
    earlier occasion shows that the witness invented the story since that occasion
    will constitute an allegation of recent fabrication. Likewise, as Sidney N.
    Lederman, Alan W. Bryant & Michelle K. Fuerst explain in
The Law of
    Evidence in Canada
, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at
    para. 7.20, the recent fabrication exception is triggered where the opposing
    party alleges that a witness who is truthful would have raised an issue at an
    early opportunity.

[177]

However, reliance on the Crowns closing address
    to ground the conclusion that the trial judge erred in failing to admit the
    statement improperly places the trial judge in a Catch-22. On my colleagues
    approach, the trial judges error was failing to appreciate that the context of
    the Crowns closing meant that the Crown had alleged recent fabrication in
    cross-examination, which in turn meant that the trial judge should have
    admitted the statement. Yet the trial judge had to make his ruling on the
    admissibility of the statement prior to the Crowns closing. As I have
    explained, at the time he made his ruling, the context of the Crowns entire
    cross-examination of the appellant would have made clear to the trial judge and
    the jury that the Crown was simply alleging that the appellant was lying to
    avoid conviction. At this point, the trial judge had no way of foreseeing that
    the Crown would allege recent fabrication in the closing address.

[178]

Furthermore, following the Crowns closing,
    defence counsel no longer sought to admit the statement. Instead, the defence
    sought a mistrial. Defence counsel submitted that it would be impossible to
    reopen the case to admit the statement. in a way that did not prejudice the
    defence. Both the trial judge and Crown counsel stated that they understood
    defence counsel to argue that reopening the case to admit the statement was not
    an available remedy as a result. Defence counsel did nothing to dispel this
    perception of the defence position. Thus, if the finding of recent fabrication
    only crystallized during the closing address, the trial judge did not err in
    failing to admit the statement when the defence no longer sought that admission
    of the statement.

[179]

In addition, reopening the case and admitting
    the statement following the Crowns closing would have unduly complicated the
    trial. My colleagues conclusion that adducing the statement would not have
    unduly complicated the trial is likely true at the time of the
voir dire
.
    However, this conclusion clearly would not apply to reopening the case
    following the Crowns closing. As defence counsel submitted, at that stage it
    would be impossible to reopen the case in a way that did not prejudice the
    defence. Defence counsel told the trial judge that reopening the case would
    risk causing the defence to incu[r] the jurys wrath for causing further
    delay and would send the case into turmoil. The defence would need time to
    consider which additional evidence to call, this additional evidence could be
    considerable, and new closing addresses would be required.

[180]

The allegation of recent fabrication in Crowns
    closing is properly treated under the mistrial issue, rather than used to
    impugn the trial judges earlier decision not to admit the statement. I agree
    with my colleague that the trial judges corrective instruction in response to
    the Crowns closing was inadequate. Yet I do not accept that the Crowns
    closing provides a basis to hold that the trial judge erred in declining to
    admit the statement when the admission of the statement following the Crowns
    closing was neither sought by the defence nor feasible at this stage of the
    trial.

B.

OVERALL CONTEXT

[181]

I also disagree with my colleagues conclusion, at para. 126 of her
    reasons, that the statement should have been admitted not only to respond to an
    allegation of recent fabrication, but also to provide overall context for the
    jury about what the appellant had said close in time to the incident  and
    prior to obtaining an experts report on pedal misapplication. In my view,
    overall context is not an appropriate basis for admission. It adds nothing of
    value that admission under the recent fabrication exception does not provide
    and only risks confusing the jury.

(1)

Overall Context
    Basis of Admission Is Unnecessary

[182]

Since my colleague concludes that the recent
    fabrication exception applies, the overall context ground for admission is
    unnecessary and redundant. The recent fabrication exception exists to allow the
    jury to assess an allegation of recent fabrication in its proper context. For
    instance, assuming that the Crown had alleged that the appellant recently
    fabricated his evidence after learning of Dr. Van Ees evidence on pedal
    misapplication, the jury would lack the proper context to evaluate this argument
    without the admission of the appellants statement. The admission of the
    statement would give the jury the proper context to evaluate the argument by
    making clear to the jury that the appellant had stated that he accelerated
    unintentionally prior to learning of Dr. Van Ees evidence.

[183]

Thus it is unclear to me what additional value
    the overall context basis of admission adds to the recent fabrication basis of
    admission. If admitted to rebut recent fabrication, the appellants statement
    to his father would lack any probative value beyond showing that the
    [appellants] story did not change as a result of a new motive to fabricate,
    namely learning of Dr. Van Ees proposed expert evidence:
Stirling
, at
    para. 7. My colleagues reasons do not identify any additional probative value
    that overall context provides. In fact, my colleagues reasons suggest that the
    appellants statement is admissible to provide overall context because he made
    it prior to obtaining Dr. Van Ees report. This confirms that the probative
    value flowing from the overall context basis of admission is precisely the same
    as that flowing from the recent fabrication basis of admission, namely to show
    that the appellant did not change his story as a result of learning of Dr. Van
    Ees expert evidence.

[184]

In my view, the fact that my colleague concludes
    that the statement was inadmissible pursuant to the narrative exception
    confirms that the overall context basis of admission adds no additional value.

[185]

The narrative exception is the usual mechanism to
    admit otherwise inadmissible evidence in order to provide overall context to
    the jury. As my colleague explains, the narrative exception takes two forms:
    true or pure narrative, and narrative as circumstantial evidence: see
R. v.
    Khan
, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 29-31, leave to appeal
    refused, [2017] S.C.C.A. No. 139. Prior consistent statements adduced as pure
    narrative carry no weight. They are admitted so that the jury can understand
    the unfolding of events:
Khan
, at para. 30. Statements admitted as pure
    narrative provide background information that would provide chronological
    cohesion and eliminate gaps which would divert the mind of the listener from
    the central issue:
R. v. Fair
(1993), 16 O.R. (3d) 1 (C.A.), at p. 18.
    In contrast, under the narrative as circumstantial evidence category, the
    circumstances surrounding the statement allow the statement to assist the trier
    of fact to assess the credibility and reliability of the witness in-court
    testimony:
Khan
, at para. 31.

[186]

Yet my colleague concludes, at para. 117 of her
    reasons, that the statement was inadmissible under either form of the narrative
    exception. As she states, the statement did not possess the circumstantial
    indicia of truthfulness required to justify its admission under the narrative
    as circumstantial evidence exception. Moreover, she notes that the defence did
    not tender the statement as pure narrative. My colleagues conclusion that the
    statement was inadmissible under either form of the narrative exception thus is
    in tension with her conclusion that the trial judge should have admitted the
    statement to provide overall context.

[187]

Furthermore, if the statement is admissible
    under the recent fabrication exception as my colleague concludes it is, then
    there would be no basis for the trial judge to exercise his residual discretion
    to admit it for the additional basis of overall context. Since my colleague
    does not justify the admission of the statement to provide overall context
    under the narrative exception, I understand her to hold that the trial judge
    should have exercised his residual discretion to admit the statement to provide
    overall context. Residual discretion permits the trial judge to admit probative
    defence evidence that would otherwise be inadmissible by virtue of an
    exclusionary rule of evidence:
R. v. Finta
, [1994] 1 S.C.R. 701, at p.
    854, quoting
R. v. Williams
(1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at
    p. 378, leave to appeal refused, [1985] S.C.C.A. No. 168. It has no role to
    play where the exclusionary rule does not apply because a recognized exception
    to that rule is triggered, such as the recent fabrication exception that my
    colleague concludes was triggered in this case.

(2)

Overall Context
    Basis of Admission Risks Confusing the Jury

[188]

In addition, admitting the statement to provide
    overall context, even coupled with a limiting instruction, would be not only
    unhelpful but also potentially dangerous. The overall context additional basis
    of admission would risk confusing the jury and deflecting its attention away from
    the central issues and toward collateral issues, concerns that are significant
    in the context of prior consistent statements:
R. v. Béland
, [1987] 2
    S.C.R. 398, at pp. 410-411. The Supreme Courts recent decision in
R. v.
    Goldfinch
, 2019 SCC 38, provides a useful illustration of why this is so.

[189]

In
Goldfinch
, the defence in a sexual
    assault trial sought the admission of evidence that the relationship between
    the accused and the complainant had a sexual component at the time of the
    events giving rise to the charge. During the
voir dire
, the only
    relevant use of the sexual history evidence that the defence identified was to
    provide context on the relationship between the accused and the complainant.
    The trial judge admitted this sexual history evidence. She gave a limiting
    instruction that told the jury that they could not use the evidence that the
    relationship had a sexual component to support either of the twin myths, namely
    that women with sexual experience are more likely to consent to sexual activity
    or are less worthy of belief. However, the trial judge stated that the only
    positive use of this evidence was to provide the jury with some context for
    the relationship between the complainant and the accused. The jury acquitted
    the accused. The Supreme Court ordered a new trial on the basis that the trial
    judge erred in admitting the sexual history evidence.

[190]

In his concurring opinion, Moldaver J. held that
    the trial judges limiting instruction was flawed. The mere reference to some
    context failed to identify any permissible use of the sexual history evidence
    and did not explain how the jury could use that evidence to resolve specific
    facts and issues relating to the defence: at paras. 136, 147. Accordingly,
    Moldaver J. concluded that the instruction meant that the jury was left in the
    dark about how they could use the evidence: at para. 137.

[191]

Admitting the statement to provide overall
    context, even accompanied by a limiting instruction, risks creating a similar
    problem to the one that Moldaver J. identified in
Goldfinch
. While the
    jury would understand the impermissible uses of the statement, it is unclear
    how the trial judge could identify any specific facts or issues relevant to the
    defence that the overall context basis of admission would assist the jury to
    resolve. As I have explained, the admission of the statement to rebut recent
    fabrication would show that the appellants story was the same or similar even
    before he learned of Dr. Van Ees proposed expert evidence, and it is unclear
    what additional value overall context would add. An instruction telling the
    jury that they could use the statement as overall context about what the
    appellant had said close in time to the crash would thus risk confusing the
    jury by outlining only impermissible inferences without explaining how the jury
    could legitimately use the overall context basis of admission to resolve
    specific issues.

M.
    Tulloch J.A.


Brown J.A.
    (Concurring):

[192]

I agree with the disposition of the appeal
    proposed by my colleague Simmons J.A. I also agree with her analysis of the
    specific grounds raised on appeal, save for one: the trial judges decision to
    exclude the appellants account of the events to his father given 26 days after
    the accident.

[193]

I concur with my colleagues rejection of most of the appellants
    arguments for admission of the account, as set out in paras. 113 to 117 of her
    reasons. However, I respectfully disagree with her conclusion that the trial
    judge erred in failing to admit the appellants statement to his father to
    rebut implicit allegations of recent fabrication arising from the overall
    circumstances of the case: at para. 112.

[194]

Instead, I agree with the analysis of my
    colleague Tulloch J.A. on this ground of appeal.

[195]

I would make three additional comments on the
    issue.

[196]

First, during the cross-examination of S.K., the
    Crown made no allusion to the pedal misapplication expert evidence that the
    defence intended to call. The Crowns cross-examination focused on the inherent
    implausibilities contained in S.K.s narrative of the material events.

[197]

Second, before the conclusion of S.K.s
    examination-in-chief, defence counsel sought direction from the trial judge on
    two areas of questioning he wanted to pursue with S.K., specifically that: (i)
    the police officers at the scene and the hospital had not asked S.K. what had
    happened; and (ii) S.K. told his father what had happened when he became able
    to speak. Defence counsel did not intend to elicit, at that stage of the trial,
    the contents of what S.K. told his father because thats something that were
    going to argue at another time. The Crown objected to the questions. The trial
    judge ruled them irrelevant at that point of the trial.

[198]

Consequently, before the Crown had ever started
    its cross-examination of S.K., the defence already had signaled its intention
    to adduce S.K.s statement to his father. Obviously, at that stage of the
    trial, the admission of such a prior consistent statement could not have been
    in response to a Crown allegation of recent fabrication, either express or
    implied, as the Crown had not yet embarked on its cross-examination of S.K.

[199]

Finally, the defence pedal misapplication
    expert, Dr. Van Ee, had not testified before S.K. was cross-examined by the
    Crown. There was no evidence that S.K. was aware of what Dr. Van Ee would say.
    In those circumstances, the mere fact that the defence retains an expert to
    testify on an element of the offence charged is not a sufficient evidentiary
    basis to open the door to the admission of prior consistent statements where,
    in its cross-examination of the accused, the Crown simply asserts that the
    accused has lied, without suggesting, expressly or impliedly, that something
    has occurred between the event giving rise to the charge and the accuseds
    testimony that has provided the accused with a motive to testify falsely:
Kailayapillai
,
    at para. 43.

[200]

For these reasons, I respectfully disagree with my
    colleagues conclusion that the trial judge erred in failing to admit the
    appellants statement to his father to rebut implicit allegations of recent
    fabrication arising from the overall circumstances of the case: at para. 112.

[201]

However, I agree with my colleagues conclusion,
    at para. 15 of her reasons, that the trial judges failure to instruct the jury
    that the appellants age and level of maturity were important factors for them
    to consider in assessing whether he knew his dangerous driving was likely to
    cause Constable Styless death is a sufficient basis alone on which to allow
    the appeal.

Released: M.T. October 1, 2019

David
    Brown J.A.





[1]

Section 229(c) provides that culpable
    homicide is murder where a person, for an unlawful object, does anything that
    he knows or ought to know is likely to cause death, and thereby causes death to
    a human being, notwithstanding that he desires to effect his object without
    causing death or bodily harm to any human being. The words ought to know in
    s. 229(c) are unconstitutional and therefore inoperative, as subjective
    foresight of death must be proven to sustain a conviction for murder and
    objective foreseeability of death is not sufficient:
R. v. Martineau
,
    [1990] 2 S.C.R. 633, at p. 648;
R. v. Shand
, 2011 ONCA 5, 104 OR (3d)
    491, at para. 122, leave to appeal refused, [2011] S.C.A. No. 270.



[2]
Subsection 231(4)(a) provides, in relevant part, that,
    [i]rrespective of whether a murder is planned and deliberate on the part of a
    person, murder is first degree murder when the victim is  a police officer 
    acting in the course of his duties.



[3]

R. v. Edgar
, 2010 ONCA 529, 101 OR (3d) 161, leave to appeal
    refused, [2010] S.C.C.A. No. 466.



[4]
Constable Styles was 511, weighed 230 pounds, and carried at
    least five to ten pounds of gear. The appellant was also 511 and weighed
    175-200 pounds.



[5]
In this part of the instruction, the trial judge erroneously
    referred to what [the appellant] meant to do as opposed to referring to the
    appellants knowledge of the likelihood of death. No issue was raised on appeal
    concerning this misdirection.



[6]
The reference to one or more criminal acts appears to be
    erroneous. However, no issue was raised on appeal concerning this matter.



[7]
Again, the trial judge erroneously referred to what a person
    intends or means as opposed to a persons knowledge. No issue was raised on
    appeal concerning this misdirection.



[8]

R. v. Shand
,
2011 ONCA 5, 104 OR (3d) 491, at paras. 150-52, leave to appeal refused,
    [2011] S.C.A. No. 270.



[9]

Subsection 229(a)(ii) provides that [c]ulpable homicide is
    murder where the person who causes the death of a human being means to cause
    him bodily harm that he knows is likely to cause his death, and is reckless
    whether death ensues or not.



[10]

The appellant also relied on
R. v. Ye
,
2013 ONSC 7251.


