WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(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 the publication.

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 the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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 driver’s 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 driver’s 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 parent’s van, and possession of stolen property) knowing that his dangerous actions were likely to cause Constable Styles’s 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 appellant’s 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 appellant’s 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 judge’s residual discretion. The trial judge refused the appellant’s request. The trial judge also refused the appellant’s request for a mistrial arising from the Crown’s closing address and instead provided a corrective instruction.

[12]        Following the jury’s 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 appellant’s 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 Crown’s 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 appellant’s 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 Styles’s death. I would allow the appeal on that basis alone.

[16]         I further conclude that the trial judge erred in failing to admit the appellant’s statement to his father to rebut the implicit allegation of recent fabrication arising from the Crown’s 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 appellant’s 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 Crown’s arguments on its sentence appeal.

B.           Background

(1)         The appellant’s 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 father’s two vehicles around the parking lot without his parent’s 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 father’s 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 father’s 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 driver’s side behind the appellant, and B.D. was on the rear passenger side behind F.D.

(3)         The Crown’s 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 driver’s door, asked for the appellant’s 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 appellant’s 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 can’t 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 can’t let you take the car,” and “No, please don’t take the car.” The officer eventually asked the appellant to take the key out of the ignition. When the appellant said, “No sir, please don’t”, 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, don’t.”

[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 appellant’s 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 appellant’s lap, with his chest on the appellant’ legs and his body pressed between the appellant and the steering wheel. The appellant’s 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, there’s 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, “We’ll 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 appellant’s 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 Crown’s 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 Styles’s height and weight and the appellant’s, the space between the steering wheel and the front seat of the van would be a tight squeeze.[4]

(5)         The paramedic’s 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 driver’s 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 didn’t 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 appellant’s 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 cousin’s 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 officer’s entry into the vehicle constituted “one continuous motion”. The officer reached for the appellant’s 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 officer’s 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 appellant’s 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 don’t know. I’ve never seen it happen before, so I didn’t know what was going to happen.

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

A. Sorry, you’re not me. I don’t think it’s fair for you to say what I felt, or assume what I felt.

Q. I’m suggesting you’re lying to this jury, is what I’m doing.

A. That’s wrong because I’m 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 didn’t – your version of the events is you didn’t do that intentionally, right?

A. This is not my version, this is what’s happened…  

Q. Okay, that you – that you didn’t intentionally put your foot on the gas pedal…

A. No.

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

A. Yeah. When I look back at it now that must have been my foot for sure… It wasn’t intentionally my foot. At the time I wasn’t trying to hit the gas. [Emphasis added.]

(b)         Dr. Van Ee’s 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 driver’s 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 officer’s physical presence in the driver’s space, could have affected the appellant’s 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 appellant’s] 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 appellant’s statement to his father

[56]        The Crown called the appellant’s 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 don’t do this … Then afterwards he say, like, he said it’s 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, it’s when the officer coming in this moving or, you know, the tight, very tight, and his body move and that’s the time he’s – if, you know, he sees the vehicle moving and – moving and, you know, he’s, he say, like, very quick everything happen…  he doesn’t’ know exactly what happened. He says it’s like very, very freeze and very, very – what do you call it, panic, when – when – you know, he was saying, like, maybe he’s 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, I’m pretty sure I didn’t – I didn’t do anything … he’s keep on telling me that he’s, like, panic and freeze and he don’t, like, after the officer jump in the car he doesn’t remember, like, nothing until he wake up. Like, he’s, sort of, can see, like a picture but very quick, he said, like, you know, he cannot do anything, things happen when and he – he’s kind of – he say like, after the van going left – he’s saying, like, he’s – he doesn’t know anything not until the point he wake up and trying to move. He say, like, panicking more and – and leg he couldn’t move it. He doesn’t know why he’s not moving it because he trying to get out or something. [Emphasis added.]

(8)         The Crown’s closing address

[59]        At trial, both the trial judge and defence counsel took issue with the following aspect of the Crown’s 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, don’t just consider what [the appellant] said, but also consider what he didn’t say. That’s important. This is less than ten minutes, presumably, after the crash, less than two minutes he is conscious, he is alert, he knows what’s going on, right? Don’t just look at what he said; look at what he doesn’t say. What doesn’t he say? What doesn’t he say? He doesn’t say, man, the brakes in this van don’t work. No, he doesn’t say that. He doesn’t say, I kept pushing on the brakes, but it wouldn’t stop. Doesn’t say that. He doesn’t say I was trying to stop this van, what happened? Isn’t that the very first thing he would say when somebody said to him what happened? [Emphasis added.]

C.           The Structure of the trial judge’s charge to the jury, the trial judge’s instructions concerning the knowledge element under s. 229(c), and the crown’s 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 Styles’s death was “likely”;

·        to determine the appellant’s 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 appellant’s position that he did not know that Constable Styles’s 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 person’s 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 Crown’s 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 Styles’s 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 jury’s 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 jury’s 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 appellant’s 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 appellant’s age, in the trial judge’s view, in light of the evidence, the jury was well aware of the appellant’s age and level of maturity.

[69]        The Crown submits that the trial judge’s 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 appellant’s state of mind and the surrounding circumstances around the time the van was set in motion. This review included the corrective instruction concerning the Crown’s 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 Styles’s 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 jury’s attention to the question of panic through his review of the evidence concerning the appellant’s 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 jury’s 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)

Watt’s 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 one’s 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 judge’s 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 appellant’s 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 Styles’s 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 appellant’s 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 officer’s 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 Styles’s perception – that is, an adult police officer’s 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 don’t 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 Crown’s summary of its position for the jury (the last instruction the jury heard before retiring), the trial judge linked the issue of the appellant’s 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 appellant’s 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 Styles’s 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 judge’s 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 driver’s licence so he taught himself to drive in the parking lot of his parents’ restaurant without their knowledge;

·        the appellant liked to take his father’s vehicles without his parent’s 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 father’s 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 appellant’s 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 Crown’s 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 appellant’s 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 appellant’s 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 Ee’s. 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 appellant’s 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 Crown’s 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 appellant’s 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 Crown’s submissions to assess the appellant’s 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 Crown’s submissions relating to the appellant’s statement to the paramedic, the trial judge left it for the jury to determine whether the appellant’s failure to give particulars of what happened to the paramedic should affect his credibility.

(iv)        The trial judge’s reasons for ruling the appellant’s statement to his father inadmissible

[102]     In reasons delivered following the trial, the trial judge addressed each of the appellant’s arguments for the admission of his prior consistent statement to his father.

[103]     In response to the appellant’s 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 appellant’s father’s evidence concerning the frailty of the appellant’s health and inability to communicate in the 26-day period between the accident and the appellant’s 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 appellant’s father claimed he was the only person present when the statement was made, the appellant’s mother testified that she, too, was present when the appellant provided details about the incident.

[105]     Further, in the trial judge’s 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 appellant’s submission that the Crown’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s position regarding admission of the appellant’s 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 judge’s ruling was dependent on a significant factual error.

[111]     Concerning the latter issue, the appellant submits the trial judge’s finding that there was no independent medical evidence to support the frailty of the appellant’s 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 appellant’s statement to his father

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

[113]     Contrary to the appellant’s submissions, I agree with the trial judge that the appellant’s 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 accused’s 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 accused’s 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 judge’s finding that he had had time to “think things out” is unassailable.

[115]     Similarly, I see no error in the trial judge’s finding that the appellant’s 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 appellant’s 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 appellant’s 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 Crown’s cross-examination was at least on the periphery of raising recent fabrication. As noted at para. 52 above, at one stage of the appellant’s cross-examination, the Crown made the following suggestion:

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

[119]     The Crown asserts that this suggestion was entirely consistent with the Crown’s 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 appellant’s statement, the trial judge gave no explanation for finding the Crown had not alleged recent fabrication, either expressly or implicitly.

[120]     However, the Crown’s suggestion should be viewed in the context of the entire trial, at which the appellant’s 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 Crown’s suggestion can also be viewed as at least an implicit suggestion that the appellant was tailoring his evidence to correspond with his expert’s proposed evidence – a classic example of an allegation of recent fabrication.

[121]     This interpretation of the Crown’s suggestion becomes even stronger when viewed in the context of the Crown’s 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 expert’s evidence, that he had done so in a way that would correspond with the expert’s 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 appellant’s 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 appellant’s 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 Crown’s implicit allegation that the appellant’s evidence about pedal misapplication was recently fabricated. Again, to conclude otherwise would be to consider the Crown’s comments too narrowly.

[126]     Considered in the context of the overall circumstances of the trial, in my view, the appellant’s 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 expert’s 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 appellant’s statement to his father.

(vii)      Discussion regarding failure to declare a mistrial and adequacy of jury instruction concerning the Crown’s closing address

[127]     In my view, the trial judge’s jury instructions concerning the Crown’s closing address was inadequate. However, I reject the appellant’s submission that the trial judge erred in failing to declare a mistrial following the Crown’s comments in his closing address questioning the appellant’s 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 Crown’s closing submissions in assessing the appellant’s 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 Crown’s 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 judge’s instruction went further than required, by effectively instructing the jury not to factor in Crown counsel’s point in his closing address in assessing the appellant’s credibility.

[129]     I do not accept the Crown’s submission. Whether or not there was a violation of the rule in Browne v. Dunn, the real problem with the Crown’s 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 expert’s evidence about pedal misapplication.

[130]     Particularly given that he declined to admit the appellant’s statement to his father, the trial judge should not have left it to the jury to decide whether “to use [the appellant’s] 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 appellant’s 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 witness’s 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 appellant’s 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 appellant’s 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 Crown’s 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 Styles’s 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 Styles’s 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 appellant’s submissions. I will turn first to the impugned inference that the appellant intentionally committed a dangerous act. The appellant’s position on this issue at trial rested wholly on the appellant’s credibility. Although it is true that Dr. Van Ee’s evidence provided a scientific basis for the appellant’s 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 appellant’s 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 appellant’s 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 Styles’s 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 driver’s 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 driver’s 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 appellant’s 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 Crown’s request to apply the Curative proviso

[147]     I would decline the Crown’s request to apply the curative proviso. None of the errors I have identified are minor. The failure to instruct the jury to consider the appellant’s 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 Crown’s case that the appellant committed a dangerous act knowing it was likely to cause the officer’s 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 appellant’s conviction and order a new trial. In light of this proposed disposition, it is unnecessary that I address the Crown’s arguments on its sentence appeal.

“Janet Simmons J.A.”

Tulloch J.A. (Concurring):

I. OVERVIEW

[149]     I agree with my colleague’s 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 colleague’s holding that the trial judge should have given the corrective instruction that he originally said he would give in response to the Crown’s closing address. I similarly share my colleague’s conclusion that the trial judge’s treatment of the evidence of F.D. and B.P. was adequate and my colleague’s rejection of the appellant’s unreasonable verdict argument. Likewise, I agree with her conclusion that the appellant’s 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 colleague’s 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 Crown’s 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 counsel’s position was that the appellant was simply lying to avoid conviction. Nor can Crown counsel’s 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 Crown’s closing. Following the Crown’s 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 Crown’s closing to hold that the trial judge erred in failing to admit the statement. The real issue following the Crown’s closing was not the admissibility of the statement but the adequacy of the trial judge’s corrective instruction. As I have explained, I agree with my colleague that this corrective instruction was inadequate.

[151]     I also disagree with my colleague’s 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 party’s 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 party’s 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 accused’s 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 accused’s 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 judge’s 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 Crown’s cross-examination of the appellant.

[157]     I disagree with my colleague’s suggestion, at para. 119 of her reasons, that the trial judge’s 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 appellant’s 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 counsel’s submissions, he stated:

But by simply saying to any witness, in any trial, you’ve made this up, this story is concocted, does that open the door…where there is some evidence that the accused…had said something exculpatory earlier. That’s the issue I think we have to grapple with because every time the Crown makes that kind of suggestion doesn’t kick open the door.

[161]     This statement by the trial judge explains his ruling. The trial judge did not accept that Crown counsel’s questions designed to show that the appellant had made up his story, particularly the Crown’s 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 Crown’s 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 Crown’s 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 Crown’s 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 appellant’s expert, Dr. Van Ee, the Crown’s suggestion can also be viewed as containing an implicit suggestion that the appellant was tailoring his evidence to correspond with his expert’s proposed evidence.

[163]     In my view, my colleague effectively analyzes the impugned passage in isolation from the rest of Crown counsel’s cross-examination of the appellant. When the impugned passage is considered in the context of the Crown’s entire cross-examination of the appellant, it follows that the jury would not have understood the Crown’s apparent position to be that the appellant had recently fabricated his evidence. The Crown’s entire cross-examination of the appellant, including the passages that directly preceded and followed the impugned passage, make clear that the Crown’s 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, I’m going to suggest to you the only reason you say “I was startled. I was surprised that he opened the door” is because you’re trying to provide some explanation as to why, in this startle and surprise, you hit the gas pedal unintentionally, that’s why you’re saying you were startled and surprised, right?

A. Sorry, you’re not me. I don’t think it’s 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 Ee’s expert report and that Dr. Van Ee used in his trial testimony that followed the appellant’s 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 appellant’s eyes demonstrates that Crown counsel was alleging that the appellant tailored his evidence to match the anticipated expert evidence about pedal misapplication. If the appellant’s interpretation of this question is accepted, the question would constitute an implicit allegation of recent fabrication. The appellant’s reception of Dr. Van Ee’s expert report would be an intermediate event between the crash and the appellant’s 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 counsel’s apparent position to be that the appellant had recently fabricated his evidence. Instead, the jury would have understood the Crown’s reference to the “only reason” in the impugned passage as an argument supporting the Crown’s 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 counsel’s cross-examination of the appellant was to demonstrate that the appellant lies to avoid getting into trouble and that the appellant’s 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 counsel’s questioning challenged the appellant’s testimony and attempted to show that it was implausible and inconsistent with the evidence of the other witnesses. Crown counsel’s 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 appellant’s 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 counsel’s 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 appellant’s 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 jury’s attention to the timing of the appellant’s testimony, weighs against the appellant’s submission that implicit in the question was the allegation that the appellant only adopted his story after learning of Dr. Van Ee’s expert evidence.

[170]     Fourth, the appellant himself testified in his evidence-in-chief that Constable Styles “startled” him by reaching into the car. Crown counsel’s 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 counsel’s reference to the appellant’s statement that he was “startled” tends to show that Crown counsel was implicitly alleging recent fabrication. Crown counsel was entitled to put the appellant’s own words back to him and allege that it was implausible that he would be startled.

[171]     Fifth, Dr. Van Ee’s 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 appellant’s counsel had asked him to evaluate whether the appellant’s 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 appellant’s counsel had retained Dr. Van Ee to evaluate the appellant’s 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 Crown’s apparent position being an allegation of recent fabrication. Defence counsel instead stressed the final question in the Crown’s 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 Crown’s apparent position was that the appellant had recently fabricated his evidence. Instead, defence counsel’s submissions focused on the risk that the jury would infer recent fabrication from the circumstances of the case regardless of Crown counsel’s express or apparent position on recent fabrication. Defence counsel’s seeming lack of confidence in the argument that the Crown’s 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 counsel’s apparent position was that the appellant was tailoring his evidence to match that of Dr. Van Ee. The jury would have instead understood Crown counsel’s 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 that…the appellant was simply lying to avoid conviction. In other words, his motive to fabricate was his involvement 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)       Crown’s 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 Crown’s 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 Crown’s closing as a basis to impugn the trial judge’s 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 Crown’s closing. Following the Crown’s 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]sn’t 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 Crown’s 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 colleague’s approach, the trial judge’s error was failing to appreciate that the context of the Crown’s 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 Crown’s closing. As I have explained, at the time he made his ruling, the context of the Crown’s 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 Crown’s 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 Crown’s closing would have unduly complicated the trial. My colleague’s 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 Crown’s 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 jury’s 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 Crown’s closing is properly treated under the mistrial issue, rather than used to impugn the trial judge’s earlier decision not to admit the statement. I agree with my colleague that the trial judge’s corrective instruction in response to the Crown’s closing was inadequate. Yet I do not accept that the Crown’s 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 Crown’s closing was neither sought by the defence nor feasible at this stage of the trial.

B.           OVERALL CONTEXT

[181]   I also disagree with my colleague’s 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 expert’s 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 Ee’s evidence on pedal misapplication, the jury would lack the proper context to evaluate this argument without the admission of the appellant’s 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 Ee’s 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 appellant’s statement to his father would “lack any probative value beyond showing that the [appellant’s] story did not change as a result of a new motive to fabricate,” namely learning of Dr. Van Ee’s proposed expert evidence: Stirling, at para. 7. My colleague’s reasons do not identify any additional probative value that overall context provides. In fact, my colleague’s reasons suggest that the appellant’s statement is admissible to provide overall context because he made it prior to obtaining Dr. Van Ee’s 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 Ee’s 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 colleague’s 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 Court’s 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 judge’s 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 appellant’s story was the same or similar even before he learned of Dr. Van Ee’s 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 judge’s decision to exclude the appellant’s account of the events to his father given 26 days after the accident.

[193]   I concur with my colleague’s rejection of most of the appellant’s 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 appellant’s 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 Crown’s 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 that’s something that we’re 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 accused’s 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 colleague’s conclusion that “the trial judge erred in failing to admit the appellant’s 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 colleague’s conclusion, at para. 15 of her reasons, that the trial judge’s failure to instruct the jury that the appellant’s 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 Styles’s death is a sufficient basis alone on which to allow the appeal.

Released: “M.T.” October 1, 2019

“David Brown J.A.”