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Evidence Case Dicta - Bootstrapping. R. v. R.A.
In R. v. R.A. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here focussing on the hearsay exception of 'spontaneous utterances'.
Here the court comments on 'bootstrapping' as an evidence problem:(ii) The trial judge did not turn his mind to the risk of “bootstrapping”
[39] Second, the only evidence as to the spontaneity of this text message came from the complainant alone, who was alleged by the appellant to have entirely fabricated it. Accordingly, this was not a straightforward application of the hearsay exception. In many other spontaneous utterance cases the occurrence of the alleged event that triggered the utterance is also supported by some other, independent evidence (e.g., physical injuries, a death, other eyewitnesses, etc.). Moreover, and relatedly, the statement in this case is a text message that is devoid of any context and was not introduced at trial as an exhibit. The trial judge thus could not examine the exact contents of that message, or the data that would provide information as to when the message was sent to Y.A.
[40] In circumstances where the only evidence that a statement was made in a state of emotion generated by a triggering event comes from the very person whose credibility is being challenged, a trial judge has to turn their mind as to whether there is a risk of “bootstrapping”: R. v. N.W., 2018 ONSC 774, at para. 60; and R. v. S.R., 2023 ONSC 350, at para. 35. In R. v. Khelawon, 2006 SCC 57, at para. 100, the Supreme Court quoted Professor Paciocco’s (as he then was) definition of “bootstrapping” in which he used the example of relying upon the contents of a hearsay statement to prove the existence of pressure from a shocking event, when it is that pressure which would have negated the risk of concoction of that hearsay statement:[2]In fact, the "bootstrapping" label is usually reserved to circular arguments in which a questionable piece of evidence "picks itself up by its own bootstraps" to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement. [Citations omitted.] [41] I do not suggest that independent evidence is always required before a trial judge can admit a spontaneous utterance. This court in Khan (1988) commented that “whether a startling occurrence which gives rise to a spontaneous statement can be proven by the statement alone may be open to question” (emphasis added). But in Khan (1988) itself, there was forensic evidence of a semen stain on the young child complainant’s sleeve, which constituted independent evidence that supported the fact that a triggering event did occur. This Court thus found it “unnecessary to determine whether in the absence of such evidence the statement [about being sexually assaulted] would be admissible”: Khan (1988), at p. 212.
[42] In this case, it was incumbent on the trial judge to explain why, given that there was no independent evidence as to the startling circumstances giving rise to the making of the statement, he safely discounted the possibility of concoction or distortion. I again highlight that the trial judge prefaced his finding that the complainant’s mind was “dominated” by the incident with the statement “[t]he key point that everyone agrees on is that [the complainant] communicated to Y.A. that R.A. had touched her…”. He could see no reason “to conclude that, out of the blue” the complainant fabricated an allegation of sexual touching and sent a text message about it. The trial judge appears to have reasoned that the basis for thinking there was some startling event that dominated the complainant’s mind was the content of the text message itself.
[43] In these circumstances, when the only source of evidence of a startling event leading to a spontaneous utterance is the evidence of the declarant, the assessment of whether the circumstances of the utterance do not give rise to a risk of concoction and fabrication is extremely important. The absence of this assessment in the trial judge’s reasons resulted in a legal error. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court considers a 'bootstrapping' argument by the appellant, which appears to be 'if X, then Y' reasoning - grounded on a refusal of the fact-finder to believe X in the face of no confirming evidence to the contrary:iii. Evidence bootstrapping
[122] Mr. Candusso submits that that the Tribunal majority’s refusal to believe that he would buy Amaya shares without consulting Mr. Kitmitto was not a proper basis for rejecting his evidence of independent research and decision-making: see Merits Decision, at para. 258. He relies on Quantum, at paras. 57-63, which set out the following evidentiary principle: “Evidence that is rejected by the trier of fact has no evidentiary value and cannot be used as a basis for findings of fact”, citing Waxman, at para. 351. In Walton, at para. 104, an insider tipping case, the Alberta Court of Appeal stated that it was it was “bare speculation” to turn a “disbelieved denial into proof positive” in the absence of any evidence of the denied conversation. In addition to his own direct evidence of independent research and decision-making, Mr. Candusso also relies on Mr. Kitmitto’s evidence that he did not know about Mr. Candusso’s trades or even how active a trader he was.
[123] Once again, I do not agree there was any reversible error.
[124] At para. 258(a), the Tribunal majority provided an explanation for their finding that Mr. Candusso’s explanation for his Amaya trades was not credible, given the following circumstances: he made a significant purchase of Amaya shares, with borrowed funds, shortly before the announcement of a significant transaction, a fact known to his close friend and roommate who covered the stock and had been the one to tell him about Amaya in the first place. Given the strong circumstantial case against Mr. Candusso otherwise outlined in the Merits Decision, the Tribunal majority justifiably considered those circumstances as providing additional support for the inference that it was more likely than not that the explanation for the share purchase was that Mr. Kitmitto tipped Mr. Candusso, rather than independent research and decision-making. I see no error in their doing so.
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