Oct 9, 2018

R. v. Brooks, 2018 ONCA 587 - Summary

R. v. Brooks, 2018 ONCA 587 (CanLII)

It is now well established that trial judges should give reasons to their verdicts (see notably R. v. Sheppard, 2002 SCC 26, and the cases which later expanded upon it). This is less so with regards to evidentiary rulings, when a judge has to decide on the admissibility of some evidence. The duty to give reasons only arises in some particular circumstances.

Here the Court of Appeal for Ontario had to apply these lesser requirements to determine if reasons were required for a ruling on whether hearsay statements were to be admitted for the truth of their contents under the co-conspirators’ exception to hearsay, even though the person who uttered the statement was actually available as a witness.

The Court started by quoting [par. 20] Justice Watt's statement in R. v. Tsekouras, 2017 ONCA 290, at par. 156, the most relevant parts of which read:
"The failure to give reasons on an evidentiary ruling is not fatal provided that the decision is supportable on the evidence or the basis for the decision is apparent from the circumstances. The importance of the subject-matter of the ruling also has a bearing on whether procedural fairness compels reasons[.]"

In this case, the "hearsay statements were the only evidence of planning and deliberation to lead to a first degree murder verdict. The appellant has a right to understand the basis for the admission of the evidence. In our view, as a matter of fairness, the trial judge was obliged to provide reasons." [par. 21] The two lines of reasons [reproduced par. 17], merely conclusory, were not sufficient to fulfil that obligation.

The Court rejected the argument by the prosecution that it was incumbent on the defence to have objected when it tendered the statement, and that as such the ruling implicitly found the objection to have been made too late [par. 22]. Indeed, "where the Crown provided an ambiguous notice of its intention to rely on the hearsay for its truth, which notice included a reference to litigating the admissibility at the conclusion of the evidence, the Crown had an obligation to argue the admissibility of the evidence before the conclusion of its case if it wished to keep open the possibility of calling [the witness] to give evidence, in the event the defence was able to persuade the trial judge that the lack of necessity foreclosed reliance on the exception to the hearsay rule." [par. 23] As such, "the basis for the decision apparent from the circumstances" [par. 25]

As well, "[t]here was little evidence that [the witness] would have been an uncooperative witness", and that as such the necessity requirement was met [par. 24]. Therefore, "the decision to instruct the jury on the co-conspirators’ exception to the hearsay rule is not supportable on the record" [par. 25].

In this specific case, "[g]iven the centrality of the hearsay evidence to the Crown’s case and the fact that the trial judge provided no reasons for giving the instruction, a new trial must be ordered." [par. 25]