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Assertive Conduct

. R v Nurse

In R v Nurse (Ont CA, 2019) the Court of Appeal considered 'assertive conduct' as a form of evidence:
(b) A Statement or Utterance?

[54] The first order of business is to determine whether Mr. Kumar’s gestures are capable of being characterized as a statement or utterance. While statements and utterances are usually verbal, consisting of the spoken word, conduct may also convey meaning. As David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) observe at p. 119: “The nod of the head or the pointing of a finger speak loudly and are intended to communicate a message.” Such conduct is described as “assertive conduct”, to be contrasted with “non-assertive conduct” which asks the trier of fact to infer a statement based on the declarant’s belief: R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at paras. 80-81.

[55] In R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal refused, [2014] S.C.C.A. No. 254, Strathy J.A. (now C.J.O.) discussed assertions by conduct. He provided the following helpful illustrations, at para. 107:
Assertive conduct refers to non-verbal conduct that is intended as an assertion. Some examples include: nodding the head (indicating "yes" -- Chandrasekera v. The King, [1937] A.C. 220 (P.C.)); pointing to someone ("he's the one who did it" -- R. v. Underwood, 2002 ABCA 310, 130 C.C.C. (3d) 500); pointing at something ("that's it" -- R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 54 O.R. (3d) 346 (C.A.)); shrugging the shoulders ("I don't know"); or showing something to someone, without accompanying words (R. v. MacKinnon, 2002 BCCA 249, 165 C.C.C. (3d) 73). In these cases, the conduct is tendered in evidence to prove the truth of an assertion. The trier of fact must determine the meaning of words the "declarant" intended to convey by the conduct. [Emphasis in the original.]
See also H.B., at para. 80; and R. v. Tran, 2014 BCCA 343, 316 C.C.C. (3d) 270, at para. 90.

[56] Similar to R. v. Underwood, 2002 ABCA 310, 170 C.C.C. (3d) 500, and R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 54 O.R. (3d) 346 (C.A.), aff’d 2002 SCC 51, [2002] 2 S.C.R. 761 (both referred to in para. 107 of Badgerow quoted above), the question is whether Mr. Kumar’s pointing gestures could be considered to be assertive conduct. I accept that Mr. Kumar’s intended meaning may not have been as straightforward as those two cases. However, it was open to the trial judge to conclude that Mr. Kumar’s gestures were capable of conveying the strong incriminatory assertions that “Nurse did this” or “Nurse was involved”.

[57] Moreover, the trial judge appreciated that the entire context in which the gestures were made would be before the jury, including the evidence that tied Nurse to Mr. Kumar, and the reason for Mr. Kumar’s attendance at the house on that day. The jury would also be apprised of how events transpired at the side of the road, beginning with P.C. Mitchell’s inquiry to Mr. Kumar (“who did this?”), followed by Nurse inserting himself into the situation in direct view of Mr. Kumar, and culminating in Mr. Kumar’s manifest intention to reveal something to the police and actively shaking off P.C. Mitchell’s attempts to restrain his hands in order to do so. It was an assertion by conduct. And like any assertion, verbal or otherwise, it would be up to the jury to determine its meaning. But this assertion by conduct was also hearsay. As Iacobucci J. stated at para. 162 of Starr, hearsay evidence is not defined by the nature of the evidence but rather by the use to which the evidence is sought to be put. In this case, the Crown sought to use the assertions to implicate Nurse in the murder of Mr. Kumar.



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