In overturning decision, Ontario Court of Appeal explains key evidential issue

By John L. Hill

Law360 Canada (October 31, 2023, 11:22 AM EDT) --
John L. Hill
John L. Hill
Finally, the Ontario Court of Appeal has given us a definitive answer to the question of what use can be made of an accused’s out-of-court statement that contains inculpatory and exculpatory explanations and the accused later testifies at trial. The appeal brought by Nick Bagherzahdeh from his 2018 conviction for second-degree murder and aggravated assault (R. v. Bagherzadeh 2023 ONCA 706) resulted in the order for a new trial. More importantly, the decision explains an evidential issue that has been simmering for years.

The incident that resulted in Bagherzadeh’s charge was a 30-second encounter outside a nightclub in Vaughan on Feb. 7, 2016, when he and a group of his friends were celebrating his 20th birthday. As Bagherzadeh and his buddies were about to enter the club, another group verbally insulted them. A physical skirmish erupted. Bagherzadeh initially tried to break up the fight and suffered a punch to his mouth and nose, knocking him to the ground. When he feared one of his friends was about to be stabbed, he went on the attack and stabbed the assailant twice in the buttocks. The situation escalated to the point the assailant was later stabbed in the chest and died, and another man was also wounded.

At trial, the Crown elicited out-of-court statements from one of Bagherzadeh’s group that Bagherzadeh had admitted to stabbing the men but added he did it to protect his friends. The Crown argued that the inculpatory portion of the accused’s statement admitting to the stabbing could be admissible as an admission against interest. However, the exculpatory portion of was inadmissible since it was hearsay.

The trial judge made a mid-trial instruction to the jury in which she said, “If you decide that a witness has accurately reported all or part of what Mr. Bagherzadeh said, you may rely on that testimony along with the rest of the evidence to help you decide the case.”

Following that instruction and at the close of the Crown’s case, the accused took the stand to testify in his own defence. Once again, he brought up his statements that he was acting to protect his friends. There was provocation requiring him to act out.

Again, the Crown sought a ruling that the exculpatory statements were inadmissible since mere repetition of a lie does not make it true. As the trial judge was instructing the jury, she charged them on the use of the exculpatory statement made by the accused. She instructed that if the jury found that the accused had uttered the words that he was acting in defence of his friend, “this can not be taken as evidence that what he said was true, but you may use that evidence as having a bearing on his credibility, and it is circumstantial evidence that you may consider as to his state of mind.”

A mixed statement of an accused led by the Crown is admissible when the accused does not testify (R. v. Rojas 2008 SCC 56). Confusion has arisen of the use of such mixed statements when the accused opts to testify. Prior consistent statements are generally inadmissible and are seen as self-serving (R. v. Stirling 2008 SCC 10; R. v. Edgar [2000] O.J. No. 137); and when adduced as to the truth of their contents, they may be considered hearsay (R. v. Dinardo 2008 SCC 24). However, there are exceptions, i.e., for example, to rebut recent fabrication, being part of the res gestae, as evidence of physical, mental or emotional state, or to prove recent complaint by a sexual assault victim.

There has come to be known as “the mixed statement rule.” If the Crown chooses to tender an out-of-court statement, including any exculpatory aspect, both the inculpatory and the exculpatory elements are admissible for the truth of their contents (R. v. Hughes [1942] S.C.R. 517).

In this case, defence counsel on appeal, James Lockyer, was able to convince the court that it would be impossible to remove the exculpatory portion of the accused’s utterance without compromising the meaning of the statement as a whole. Moreover, the mid-trial instruction when compared to the final directions in the charge to the jury, points up confusion on how the triers of fact could make a just conclusion. A new trial was warranted.

Although this case seems to guide us in determining what use can be made of a mixed statement when an accused later testifies, it will likely mean that Bagherzadeh will be close to his 30th birthday before what happened in that 30 seconds when he turned 20 is finally decided.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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