Court Information

Information No.: 13-35001566

Ontario Court of Justice

Her Majesty the Queen v. Gregory Brake

Reasons for Judgment on Application

Before: The Honourable Madam Justice D. Hackett

Date: May 27, 2014

Location: Toronto, Ontario

Appearances

Ms. K. Chantzis – Counsel for the Crown

Mr. R. Fedorowicz – Counsel for the Defendant

Witnesses and Exhibits

Witnesses: No witnesses were called

Exhibits: No exhibits were entered

Reasons for Judgment

HACKETT, J. (O.C.J.): ORALLY

Introduction

This is a decision in relation to an application brought by the Crown to admit two out-of-court hearsay statements. This issue arose in the midst of a trial on the charge of an assault that is alleged to have occurred in the context of a domestic dispute. The evidence at trial and on this application has been blended, with the agreement of counsel. The parties therefore agree that the trial evidence will apply to this application.

At the outset, I want to thank counsel for their submissions, and the cases that I was referred to. They have been most helpful.

Legal Framework: Hearsay and the Principled Approach

It is trite to say that hearsay is presumptively inadmissible for the truth of its contents because of the dangers associated with admitting evidence which is not given in person under oath or subjected to cross-examination that challenges its reliability and credibility.

As stated in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paragraph 2:

"Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration, or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations, or deliberate falsehoods may go undetected and lead to unjust verdicts, hence the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth seeking function."

Nevertheless, there are exceptions to this principle that are governed by traditional common law exceptions and the more recent principled approach to hearsay, also described in R. v. Khelawon, at paragraph 2:

"Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay.

When it is necessary to resort to evidence in this form a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gate keeper in making this preliminary assessment of the threshold reliability of the hearsay statement and leaves the ultimate determination of its worth to its fact finder."

The principled approach to hearsay requires this court to first consider whether or not the statement is necessary, and secondly whether or not the Crown can establish, on a balance of probability, threshold reliability.

At this stage, this court is only the trier of law, not the trier of fact. The ultimately reliability of the evidence can only be determined by a judge sitting alone at the end of the trial on the basis of all of the admissible evidence.

The Facts

The Crown alleges that the accused, Gregory Brake, assaulted the complainant, Darlene Castle, on March 15th, 2014, in an alleyway near the Legion on Robinson Street, a block from The Black Bear Pub, in Toronto.

On the date in question, the police responded to a 911 call about an assault in progress. In the 911 recording at issue, there is no interaction between the operator and anyone else; rather it contains exchanges between a woman and a man. Primarily the woman is crying and screaming, and says the following. These phrases contain inaudible portions or pauses, which are denoted by the dots.

Female Voice Statements from 911 Recording

• "Don't hit me anymore, please."
• "Don't hit me anymore. Please stop. Stop."
• "Stop hitting me in my fucking head."
• "I can't fucking breathe, Greg."
• "...break my phone... 'Stop, please...'"
• "Greg, please stop it... please, Greg."
• "I just want to go home."
• "Don't kick me... don't kick me."
• "Stop fuck... in my face... stop it..."
• "Stop, please. Please stop. Please stop."
• "Oh, my head... oh... stop."
• "I can't breathe."
• "Stop kicking me... oh... stop it, stop it..."
• "Fuck off... you fucking pig, fuck you... stop, my hair..."
• "My head is so sore. Why are you doing this to me?"
• "Stop kicking me."
• "I want to go home, Greg. Please let me. Let me go, Greg. Please."
• "Can you stop... hitting me, Greg."
• "Quit... my leg... stop."
• "Please stop... stop it."
• "Please let me go. Please let me go, Greg. Please let me go. Please let me go, Greg. Please let me go."
• "Stop hitting me in my face."
• "Oh, fucking killing me here. Please help me. You're a fucking pig."
• "My... my stuff."

Male Voice Statements from 911 Recording

During this call a male voice can be heard saying the following phrases:

• "You fucking little bitch."
• "You're supposed... you fucking little bitch."
• "Shut up."
• "You fucking dirty cunt... why did you do it?"
• "Fucking bitch... you deserve... you drank today."
• "Fuck, fuck, fuck."
• In response to the woman's voice saying, "Can you stop hitting me, Greg?" – "No."
• "Go through life knowing that you know... fucking..."
• "You fucking bitch... everyday..."
• "...happy... every fucking week..."
• "Fucking... swallow it... fuck, I'll piss all over you and then I'll leave, okay?"
• "You fucking bitch."

In addition to these phrases, other parts of this 911 recording either cannot be heard or discerned as a result of the woman's condition, static from apparent movement, often associated with other noises recorded on that tape, and the sound level of the voices.

Complainant's Testimony

At trial, on May 1st, 2014, the complainant testified that she and Gregory Brake had been in an on and off relationship since July of 2013. In court, Ms. Castle expressed hope that this relationship was still on because she is still in love with him.

On March 15th, 2014, she testified they were having problems because both of them believed the other was having an affair. Later in cross, she testified she was more jealous than him, and that he was also upset because she had recently been using drugs again and was drinking. As a result, she began drinking early on this morning.

Afterwards, she walked to the Black Bear Pub at Danforth and Pharmacy, where she found the accused. Ms. Castle ordered a drink, and testified that she spilled it on herself, which embarrassed the accused, so he left. Ms. Castle followed him.

After that, she testified that everything is a blur, because she had been drinking a lot, specifically a twenty-sixer of vodka.

In cross, Ms. Castle said she was angry at the accused, and that when drinking and angry she gets manic and hysterical. This witness described she then headed home through an alley near the bar. Evidence indicates there is an alley one block from the pub, near the Legion. She was not sure if Mr. Brake was with her at that point, but they ended up running into each other again, either in or just after the alley. Ms. Castle later stated they met after the alley.

This witness also recalled falling a lot in the alley, but she said she could not remember much else. In cross, Darlene Castle described that when she drinks a lot she falls often and gets bruises and scrapes. Ms. Castle also stated that she tends to black out when she drinks.

Upon listening to the 911 tape, Ms. Castle testified the female voice sounded like her, and she thought it was her, but she could not recognise the male voice. She also stated she did not recall dialing 911 that day. Ms. Castle's next memory was that when she ran into Greg again she gave him some of her belongings. Together they then walked to her home, where she saw the police.

Police Evidence

The evidence of the police indicates that at 18:12 PC Wong and Sergeant Da Silva received a radio call in relation to a 911 call about an assault in progress. The officers went to two locations, as a result of information they received. At 18:23, they arrived at 50 Burnhill, which is the complainant's apartment building.

At 18:53, they observed the complainant, in the company of the accused, walking onto this street. PC Wong had dealt with Ms. Castle before, called her, and she approached the police vehicle. PC Wong testified he asked her what had happened to her face, because he observed redness and a scratch on the left side of her nose. Ms. Castle began to cry, and was upset. Sergeant Da Silva also observed redness. He described it was to her whole face, and that there was also a cut on the left side of her nose. PC Levesque saw a three centimetre red mark on her face, and he described it as "fresh." PC Wong took the complainant aside and spoke with her. During this exchange, Sergeant Da Silva came at one point, also to speak briefly to Ms. Castle.

Ms. Castle testified both that she was not sure that she spoke to the police, and that at some point she did.

PC Wong testified that the complainant was upset, but during their conversation she calmed down. He later recorded in his notes, "As soon as practicable, back at the station," that the complainant told him the following:

• She got into a domestic fight, and that the male had called her to meet him.
• PC Wong noted that she looked towards the accused, who was then walking towards their area.
• Ms. Castle then asked if he would be arrested.
• PC Wong asked if he was the one who hit her.
• She responded, "Yeah, but I don't want him to be arrested."
• PC Wong testified that she later identified this male as Gregory Brake.
• After observing mud on her jacket, PC Wong asked her where that had happened.
• Ms. Castle answered, "Behind the Black Bear Pub, behind the Legion."
• She complained her kidneys hurt, and that the male had kicked her in her kidneys, face, and back.
• She claimed he also took her purse and threw it on the ground, and that her stuff went everywhere.
• He also broke her phone and took her bracelets.
• She said he also had accused her of cheating on him with "fucking niggers."
• Sergeant Da Silva arrived and after observing a wet spot in the crotch of her blue jeans, the officer asked her what happened, and Ms. Castle said he "pissed" on her and, "He thinks I'm dirty."
• She also said that she had paid for the cell phone and wanted to get it back. As a result, Sergeant Da Silva left to look for her phone.
• PC Wong told her about the radio call. Ms. Castle said that she had called the police.
• PC Wong said that they could not find her initially.

Sergeant Da Silva testified that he made notes of the part of this conversation he was present for, at the time or shortly thereafter. In cross, he said his notes were made right after the incident and before he went off duty at an unspecified time. He also described that after observing the wet mark on her inner thighs Sergeant Da Silva asked why the mark was there. Darlene Castle said that the male had "pissed on her." Sergeant Da Silva also testified that Ms. Castle stated that he had kicked her in the kidneys, which were sore, pulled her hair several times, and knocked her down. The Sergeant also testified that Ms. Castle gestured towards Mr. Brake during this conversation.

Both officers testified that Ms. Castle then refused to go to the station, refused to give a statement, refused to have pictures taken, and refused to have an ambulance. She stated to PC Wong that she "just wanted to go home." Near the end of the statement, both officers described that she became uncooperative and verbally aggressive over her phone, which she wanted, but which the police could not find.

The officers also testified that although she was upset, they had no concern about her mental state. They also testified they could not determine whether or not she was under the influence of alcohol or drugs, or just upset because of the incident. They described that she understood and was responsive generally to their questions. They also described that their conversation was not forced by any promise, threat, or inducement.

At trial, Ms. Castle, when asked if she was truthful with the police, testified she did not recall speaking to the police, and also at one point she didn't know and was not able to answer that question. When the question was repeated, she said, "Maybe," and that it "could be either way." When asked why she would lie to the police, Ms. Castle stated that she was "angry" and "not sure what she said."

After speaking with the complainant, the police went to the pub and then to the nearby alleyway beside the legion. There they found a number of pieces of identification, glasses, and a photograph of Ms. Castle's niece strewn around in the snow on the ground. The identification was in the name of Darlene Castle. The complainant testified that these items belonged to her, and that she also lost her cell phone at the time.

Analysis: Necessity and Reliability of Hearsay Statements

I turn now to consider the necessity and reliability of the 911 tape and the statement to the police under the principled approach to hearsay exceptions.

Necessity

The Crown argues that the evidence contained in the 911 tape and the police statement are unavailable, because the complainant now claims to have no memory of the events described therein. The Crown also submits that the complainant is feigning this memory loss. The defence has not taken much issue with the necessity requirement on these facts.

Briefly, some of the factors which the ultimate trier of fact would consider on the issue of the weight to be applied to Ms. Castle's evidence about memory loss, versus the Crown's argument that it is feigned, are as follows:

1) Unevenness in Claimed Memory Loss:

There is evidence of unevenness in the claimed memory loss, because Ms. Castle recalls both matters before and after the contents of the 911 call. In addition, she recalls things after the pub, before she reconnected with the accused. The complainant also described that she fell in the alleyway, despite her claim that everything after the pub was a blur. She also stated that her spilled drink had not dried before she got to the legion, again suggesting some memory after having left the pub. In addition, Ms. Castle also recalls matters that happened before she talked to the police, such as giving the accused her belongings, despite not remembering talking to the police.

2) Evidence of Bias:

There is evidence for the ultimate trier of fact to consider on the issue of bias: Ms. Castle professed her love for the accused at trial, and stated that she wanted their relationship to continue. This bias was also demonstrated in court on four occasions.

a) When she described the problems in their relationship in the witness box, she talked directly to the accused across the room, perpendicular to the judge, and perpendicular to counsel, as if she was talking just to him.

b) Prior to her being recalled, when she left the courtroom she turned and looked back at the accused, who was on the opposite wall, and winked at him.

c) When counsel stepped out to get a continuing date, Ms. Castle was visibly flirting with the accused with movements of her eyes, face, and her pink scarf. As a result, the court had her step out until counsel returned.

d) When advised to return on the continuing date, as she left the courtroom, Ms. Castle nodded at the accused.

3) Internal Inconsistencies:

There are internal consistencies in her evidence. For example, Ms. Castle said she was not sure if she spoke to the police, then, that she remembered speaking to them at some point, and finally, that she did not remember speaking to the police at all.

Whether there is real or feigned memory loss is ultimately up to the trier of fact at the end of the trial. Regardless, there is no other evidence available to the Crown that is of equal value to the material contained in the 911 tape, or in the record of the conversation Ms. Castle had with the officers shortly after the events.

Conclusion on Necessity:

In my view, based upon all of the evidence, the test for necessity has been met by the Crown on a balance of probabilities.

Threshold Reliability

I will now consider the threshold reliability of both the 911 tape and the purported statement given to PC Wong, which in part took place in the presence of Sergeant Da Silva.

1) 911 Tape

There are a number of factors to consider on the issue of the threshold reliability of the 911 tape. These factors relate to both arms of the Khelawon test of trustworthiness, namely a) the way the statement originated, or b) the availability of alternative means to assess its worth.

A) Origin of the 911 Statement

There are factors to consider on both sides of the argument about the way this statement came about, as well as the completeness of the record.

i) Spontaneity

The 911 tape was made simultaneous with the events it records. The state of mind and demeanour of the complainant is evident in this recording. In all of the circumstances, it would be reasonable for the ultimate trier of fact to conclude that there was no opportunity to invent these res gestae statements, even given evidence about the bad character of the complainant, her history of lying, and her anger towards the accused on that date. See R. v. Rahmanzadeh [2005] O.J. No. 925, at paragraph 7, and Wigmore on Evidence, third edition, volume six, at section 1647.

While it might be theoretically possible to fake a 911 call, based upon the screaming, crying and allegations contained in the 911 tape, and the consistencies in the statements of the two people recorded thereon, it would be reasonable for the ultimate trier of fact to conclude, in all of the circumstances, that this is not a fake or staged call.

ii) Alcohol

The complainant testified that she had a lot to drink, and that when she drinks she gets manic and hysterical. Alcohol therefore may have affected her perception of the events at the time of the 911 call, as well as her ability to recount what was transpiring.

However, in contrast to Ms. Castle's evidence, the police testified about their interaction with her shortly afterwards, and stated that they could not tell if her condition was a result of the events in question, or from being under the influence. On this evidence, it would be open to the ultimate trier of fact to conclude she was not impaired to a degree that would have interfered with her ability to perceive or recount events.

In addition, those portions of the 911 tape that can be discerned indicate consistent perceptions that often corresponded to noises that are also consistent with statements being made simultaneously.

Finally, as will be described below, there are external reliability factors that the trier of fact could also consider at the conclusion of the trial, that support the reliability of her perceptions and what Ms. Castle was recounting at the time.

On this evidence, in my view, it would be open to the ultimate trier of fact to conclude that Ms. Castle was not impaired to such a degree that her evidence is not reliable.

iii) Drugs

During cross-examination by the defence in response to a question about her consuming crack that day, the complainant stated that she, "Could have in the morning." Given that this did not come out in her initial narration of what happened that day, the unevenness in her memory, the contents of the 911 tape, the police evidence about her condition, and evidence of her bias, it would be reasonable for an ultimate trier of fact to conclude that she did not consume drugs that day, or was not under the influence of drugs at the relevant time.

iv) Completeness of the Record

There are a significant number of things in the 911 record that are not discernable. The defence argues that the 911 call is therefore not a complete and not a reliable record of what happened, and cannot provide a reliable picture. See R. v. Mattson [2012] O.J. No. 2276, at paragraph 26.

At the same time, the call goes on for fifteen minutes, and the ultimate trier of fact would have the opportunity to assess whether or not these gaps detract from the ability to determine what transpired.

In addition, there are comments made by the male in response to the complainant's perceptions recorded in that call that are consistent with the female's comments, and reinforce her perceptions and her ability to recount what was transpiring at the time. For example, in response to the female saying, "Can you stop hitting me, Greg?" the male responded, "No." In addition, there are sounds on the 911 tape that also correspond to her words, and therefore also could reasonably be considered by an ultimate trier of fact to affirm her perceptions and her ability to recount what was happening at the time.

In my view, the ultimate trier of fact could reasonably conclude that what is discernable on that 911 tape is an accurate reflection of the entire events, despite the gaps.

Origin of the 911 Statement: Conclusion

In my view, based upon all these factors, the Crown has met its onus on a balance of probabilities to establish that the res gestae statements contained in this 911 call meet the test of threshold reliability. Although unnecessary, given this finding, in my view, for the reasons that follow, the 911 tape would also be admissible on the basis of the second test set out in Khelawon.

B) Alternative Assessment Means

Based upon all of the evidence, there are three alternative means to assess the trustworthiness or reliability of the 911 call in this case.

i) External Reliability Considerations

a) Three police officers observed facial injuries, shortly after the events, on Ms. Castle, that are consistent with the 911 statements where the complainant requests that the male stop hitting her in her face. While the evidence of two of the officers vary with respect to the extent of the redness, that is something for the ultimate trier of fact to consider, and not determinative.

b) Two officers observed an injury to her lower back that could also be consistent with the 911 statements that she was being kicked. The 911 phrases do not specify what area was kicked, based upon the words that are discernable, and are therefore not corroborative, but nevertheless are consistent.

c) The complainant testified that after the alleyway she headed home, and the 911 tape also contained statements indicating she wanted to go home.

d) The complainant described being in a relationship and having a domestic dispute with Gregory Brake at the relevant time. She also testified she was with him before and after the alleyway. The police corroborate that they were present as Ms. Castle approached with Mr. Brake, and in that respect confirmed her evidence.

e) Together, all of this evidence is circumstantial evidence from which the ultimate trier of fact could reasonably conclude that Darlene Castle was with Gregory Brake in the alleyway. Consistent with this, on the 911 call, the complainant refers to the male who was assaulting her as "Greg" on eight separate occasions.

f) The police found the complainant's belongings strewn in the alleyway behind the legion, and on the 911 tape, Ms. Castle refers to, "My stuff," in a tone of complaint in the midst of the events she is describing. While the 911 tape does not explain why she was complaining about her stuff at that moment, it is certainly consistent with someone having thrown her belongings around in the manner that the police subsequently found them.

g) The complainant testified that she lost her phone that day, and there is a reference to, "Breaking my phone," on the 911 call, which, although again not corroborative and absolutely consistent with that reference, it certainly is consistent in that something bad had happened to her phone that day.

h) The complainant was upset when she was with the police a short time after the allegations, and on the 911 call she was also upset and crying.

i) On the 911 tape, the complainant refers to multiple blows, and "killing me," and not being able to breathe. In this respect, there are only two injuries shown to the police, and none on her neck. At the same time, without more, those injuries are not inconsistent with the complaints on the 911 tape. Nevertheless, that is a factor that the ultimate trier of fact would have to consider.

ii) Internal Reliability Consideration

a) The spontaneity of the comments adds to their reliability.

b) As mentioned previously, the sounds, and grunts, and movements, and static, and other noises on the tape are consistent with and correspond with the words of the female at the time.

c) The remarks of the male that can be discerned are also consistent with the words of the complainant on the tape. The male can be heard specifically responding, "No," to the female's question asking him to stop hitting her.

iii) Cross-Examination

In this case, the person who made the 911 statements is not only available for cross-examination, but she has been cross-examined. The defence argued that this is not a factor that favours the admissibility of the 911 tape, because cross-examination of the complainant was not effective, and could not be effective, given her lost memory claims. See R. v. Biscette [1996] 3 R.C.S.

In my view, the lost memory claim is not determinative. There were areas of cross that were effective. In response to cross-examination about her drug addiction, and in response to a leading question, the complainant added that she may also have consumed crack on that morning. This answer was obviously of assistance to the defence. She also agreed with the suggestion that she has previously lied to the police about the accused previously assaulting and stealing from her. This too was of assistance to the defence.

The demeanour and nature of the complainant's evidence, for reasons previously described, raise issues with respect to bias, which resulted in her being declared hostile and adverse to the Crown.

In this context, the defence focussed most of the cross-examination on establishing general negative credibility and reliability features, such as Ms. Castle's mental illness, her failure to take her medication, her drug dependency, her criminal record, as well as her extreme reactions to drinking lots of alcohol.

In my view, the defence chose not to cross-examine Ms. Castle on the specifics of the 911 tape or her statements to the police, even in the face of unevenness the in her memory, set out previously.

In my view, there was an opportunity to effectively cross-examine the complainant about these events, and the defence chose not to. See R. v. Snyder, 2011 ONCA 445, at paragraphs 20 to 21, and R. v. Conway 1997 CanLII 2726 (ON CA) [1997] O.J. No. 5224, at paragraphs 27 to 29.

Alternative Assessment Means: Conclusion

In my view, the opportunity to cross-examine Ms. Castle provided an important alternative means to test the reliability of the 911 tape. See R. v. Adjei, 2013 ONCA 512, paragraph 43, and R. v. Youvarajah, 2013 SCC 41, at paragraph 50.

Considering all of the factors noted above, I find that the 911 tape also meets the test of threshold reliability under the second branch of the principled exception to hearsay test set out in Khelawon, because there are sufficient alternative means of assessing its worth, including the external reliability factors, the internal reliability factors, as well as the opportunity to cross-examine Ms. Castle.

Residual Discretion

Having determined that the 911 tape meets the test of threshold reliability and therefore could be admitted, the court recognises that there is still a residual discretion to exclude that evidence, despite this finding, on the basis of trial fairness. See R. v. Khelawon at paragraphs 9 and 49. In my view, based upon all of the circumstances, this is not a situation where that residual discretion should be exercised.

Conclusion on 911 Tape

I therefore find that the 911 tape will be admitted in this trial for the truth of its contents. The issues identified in these reasons will all have to be considered by the ultimate trier of fact at the end of the trial in assessing the weight of the evidence and the Crown's onus of proof beyond a reasonable doubt.

2) Notebook Statement to the Police

In R. v. K.G.B., the Supreme Court of Canada recognised the range of hearsay statements on the continuum of reliability, and stated:

"The statements to be considered on such a voir dire will fall somewhere along a continuum of reliability. For example, at one end it may be established that the statement had been videotaped, the witness had access to counsel, the witness had a relative or responsible person present throughout the interrogation, the witness had been made aware of the gravity of the investigation, and the importance of the of telling the truth, and the witness gave the statement voluntarily. Statements made in those circumstances may be readily admitted."

"Other statements may still be found to be reliable and admissible, although they do not present every one of the foregoing indicia of trustworthiness. For example, there may not be a videotape, but a recording of the interview made in the presence of dependable and reliable independent witnesses who attended the interview and who attest to the demeanour and deportment of the witness and the police. At the other end of the continuum, maybe a prior inconsistent statement contained in the hurried notes of a single police officer who was paraphrasing the words, the witness speaking to him in hectic and difficult circumstances. It might well be difficult to conclude that such a statement should be admitted."

It is clear that it is more difficult to have informal statements given to the police and notebook statements recorded after the fact admitted under the principled approach to hearsay than more formalized statements, or ones made in a notebook simultaneously with the words that are recorded.

In the circumstances of this case, the fact that both officers notes were not made after a caution, not made simultaneously with the remarks, and not reviewed or signed by the maker of those statements are all particularly concerning features.

While the defence argued that there are no cases where police notebooks have been admitted under the principled approach to hearsay, the Crown referred the court to the decision in R. v. Murphy, 2012 O.J. No. 5680. In that case, the court stated in paragraph 70:

"In this case I have considered the hearsay dangers raised by the fact that Ms. Rogers' utterances were not made under oath or affirmation, were unsigned in the officer's notebook, and were not videotaped. However, after also considering the relative contemporaneity of her utterances with the alleged assault, the evidence of PC Tokat of this visible bruising to her right shoulder, the evidence of the independent witness Heroux, and last, but by no means least, her availability to be cross-examined, as she was, by Mr. Brooks, I agree with the argument of the Crown that the threshold test for admissibility has been established under the principled approach to the admissibility of hearsay is established by the Supreme Court of Canada in Khelawon and proceeding cases."

In addition, I also note that in the written submissions of the defence there is a reference to R. v. Manual, [2013] O.J. no. 1933, where a notebook statement was also found to be reliable, however, in that case there was an acknowledgement that the notes were an accurate recording of what was told to the officers. That decision is similar to the facts in Murphy because a key aspect of the statement in Murphy was corroborated by an independent witness, and the complainant agreed that the officer's notes sounded as if it was a verbatim account of what she said.

Factors Weighing Against Threshold Reliability

On the facts in this case, the main factor weighing against the finding of threshold reliability for the statements Ms. Castle purportedly made to Officers Wong and Da Silva are as follows:

1) Timing of Notes:

The notes of the officers were not made at the time. The evidence about what the time gap was specifically is not clear. In this regard, the Crown clearly bears the onus. Obviously, the longer that gap, the greater the concern about the accuracy of their memory and their notes.

2) Absence of Caution:

There was no caution about the importance of telling the truth or the consequences of making a false statement, or an oath or an affirmation before the statement was given.

3) Lack of Recording:

There was no video or audio tape to record the demeanour of the complainant or the police, and the accuracy of the contents of that discussion. At the same time, the officers were available to testify about her demeanour and the accuracy of their notes, as well as Ms. Castle.

4) Potential Motive to Fabricate:

The complainant testified she was mad at the accused at the time, and therefore may have made things up, if she actually spoke to the police. At the same time, inconsistent with such a motive is her statement made at the time that she did not want the accused to be arrested. Clearly, this is consistent with her behaviour in court as well, as described previously.

5) Inconsistencies Between Officers' Notes:

The notes of PC Wong were inconsistent with Sergeant Da Silva for the period of time that they were both speaking to the complainant in two aspects.

Sergeant Da Silva noted that the complainant complained about the accused pulling her hair several times and knocking her down. This is not recorded by PC Wong. Obviously this undermines the accuracy of their notes. At the same time, the 911 tape refers to, "Stop, my hair," followed closely by, "My head is so sore." This consistency would not have been known to Sergeant Da Silva.

In addition, under oath the complainant did recall being on the ground in the alleyway, although she described that when she drinks she falls, as opposed to having been knocked down by the male. Nevertheless, her bias at trial would also be a consideration for the ultimate trier of fact in assessing all of this evidence.

6) Refusal to Give Formal Statement:

The complainant refused to give a formal statement or have her pictures taken. This is consistent with the absence of a desire to "get" the accused, but also it is consistent with an argument that her statement was not reliable and she did not want to repeat it.

7) Lack of Verification:

The accuracy of the notes was not verified by the complainant at the time, or in court. In this regard, the length of their conversation is unknown, and so the ability to assess the completeness of their notes is difficult. While the Crown bears the onus, the defence also did not cross-examine PC Wong or Sergeant Da Silva on the reliability or accuracy of their memories at the time they made their notes or their notes themselves.

At the same time, while there are two inconsistencies noted above between their notes to consider, there are also a number of corroborating aspects of their evidence set out below that also would be considered by the ultimate trier of fact.

8) Alcohol Impairment:

Ms. Castle testified that she was under the influence of a lot of alcohol, as described earlier, although the extent of her claimed impairment is not supported by the 911 tape or the evidence of the police.

9) Credibility Issues:

In addition to her criminal record for deceit and obstructing the police, the complainant admitted to lying to the police relatively recently about this accused assaulting her and stealing her property. She retracted her complaint in the matter shortly after making the complaint, and blamed it, in this court, on drinking and being angry with Mr. Brake. However, as the Crown pointed out, the complainant also agreed that she did not call the police to retract her complaint in this instance.

Alternative Means to Measure Trustworthiness

Turning now to alternative means to measure the trustworthiness of statement to the police, the following factors are relevant to consider:

1) Contemporaneity:

The statement was made contemporaneously with the events and approximately within an hour, when the event would have been fresh and there would not have been an opportunity to fabricate.

2) Consistency with Testimony:

Her statement to the police that this was a domestic fight and that the accused called her to meet him is consistent with her testimony under oath that she met Mr. Brake at the pub after they had been fighting.

3) Physical Injuries Corroboration:

The physical injuries to Ms. Castle's face and back were observed by three officers for the face, and two officers with respect to the back. This corroborates her statements to PC Wong that she was kicked in the face and the back.

4) Consistency with 911 Call:

Her statements on the 911 call are consistent with her statements recorded by the police. The details on the 911 call would not have been known to these officers.

5) Identification Consistency:

Her identification of the accused as her assailant to both the officers is consistent with the identification of her assailant on the 911 call as "Greg."

6) Wet Mark Corroboration:

The wet mark on her pants, recorded by both officers, is consistent with her contemporaneous statement that he "pissed on her." Although at trial she provided alternative explanation that she spilled a drink, that would be something for the ultimate trier of fact to consider, particularly given that the explanation was made much later, after there would have been an opportunity to fabricate. In addition, it is important to consider that there is no smell of urine described by any witness. At the same time, no witness was asked about that either.

7) "Dirty Cunt" Corroboration:

Ms. Castle's statement to the police that he "pissed on her," because he "thought she was dirty," is corroborated by the male voice calling her a "dirty cunt" on the 911 call, and later threatening to piss on her. The police would have had no way of knowing, at the time that they made their notes or spoke to the complainant, about these matters on the 911 call, other than it having come from the complainant.

8) Belongings Corroboration:

The complainant's statement that he took her purse and threw her stuff everywhere is consistent with the evidence that the police later found her belongings strewn around in the snow in the laneway near the pub and legion, as she had described. See the photographs taken at the time, filed as exhibits.

9) "My Stuff" Consistency:

The statement to the police that he threw her things are also consistent with the complaint on the 911 tape about "my stuff".

10) Affair Accusation Consistency:

Her statement to the police that the accused accused her of cheating on him with others is consistent with her testimony under oath that they both were both upset with the other for having affairs. Again, the police would not have known about that but for it having come from the complainant.

11) Bias Consistency:

The complainant's bias and feelings for the accused, as stated and demonstrated in court, is consistent with her statement to the police that she did not want to see him arrested.

12) "Go Home" Consistency:

Her statement to the police that she just wanted to go home is consistent with her statement to the same effect recorded repeatedly on the 911 call. Again, the police would have had no knowledge of that either.

13) Cross-Examination Opportunity:

Importantly, the complainant testified under oath and was cross-examined. Her evidence that she did not recall talking to the police, her claim of memory loss, and her evidence about motive because she was angry with the accused, can be fully assessed by the ultimate trier of fact, given the opportunity the ultimate trier of fact would have to have observed her testify in court.

14) Implicit Admission on 911 Tape:

There is an implicit admission on the 911 tape by the assailant that he was hitting her when she asked him to stop hitting her and he said "no". This corroborates her statement to the police, and would not be something that the police would have been aware of when they made their notes, again reinforcing the accuracy of their notes.

15) Unusual Wording Corroboration:

PC Wong testified about specifically recalling the unusual and objectionable wording of Ms. Castle's complaint that the accused had accused her of cheating on him with, "fucking niggers." This was not contradicted by the complainant. While her claimed memory loss has to be considered, her relationships with other men were not explored in cross-examination.

16) Sounds Consistency:

The sounds on the 911 tape are consistent with the complaints Ms. Castle made to the police, as well as her statements on the 911 tape at the time of those sounds.

17) Consistency Between Officers' Notes:

There are significant consistencies between the notes of PC Wong and Sergeant Da Silva, about this conversation, although there are the two differences previously mentioned that also must be factored in by the trier of fact.

Conclusion on the Notebook Statement

In my view, considering all these factors, and all of the circumstances, and all of the evidence in this case, and, in particular, the cumulative effect of the corroborating physical evidence, the 911 tape, and the opportunity to cross-examine both the police and Ms. Castle, the Crown has established that there are sufficient alternative means to assess the worth of this evidence, and I find the Crown has met its onus to prove threshold reliability of the police notebook statements on a balance of probabilities. All of the factors highlighted in this decision will have to ultimately be assessed by the ultimate trier of fact in light of the stricter onus on the Crown at the conclusion of the trial.

Residual Discretion

Based upon all the circumstances of this case, this is not a situation where the residual discretion to exclude this evidence should be exercised in the interest of the fairness of this trial.

Conclusion on Notebook Statement

I therefore find that the statements to PC Wong and Sergeant Da Silva, as recorded in their notebooks, are admissible in this trial for the truth of their contents.

Certification

THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from the recordings herein to the best of my skill and ability.

Kendra Roach, Court Reporter

Dated June 19, 2014, at the City of Toronto

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Kendra Roach, certify that this document is a true and accurate transcript of the recordings of Regina v. Gregory Brake in the Ontario Court of Justice held at 1911 Eglinton Avenue East, Toronto, taken from Recording No. 4813-402-20140527-101240, certified from Form 1.

Date: ___________________

Kendra Roach Court Reporter

Certificate of Transcript (Rev.03/04)