Court Information
Ontario Court of Justice
Her Majesty the Queen v. Dennis Solomon
Ruling on Application
Before the Honourable Madam Justice D. Hackett
Appearances
A. Derwa – Counsel for the Crown
F. Shannahan – Counsel for Dennis Solomon
Ruling
HACKETT J.: (Orally)
This is a decision in relation to an application brought by the Crown mid-trial to have an out of court hearsay statement of the complainant introduced pursuant to the principled approach to hearsay described in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
Counsel agreed to blend the trial evidence with the evidence to be considered on this application. The court therefore must consider the testimony in-chief and cross-examination of both the complainant, Jasjot Grewal, and P.C. Pulumbarit, who took her statement.
The test for the admission of such a hearsay statement requires the Crown to establish, on a balance of probabilities, both:
a) necessity; and
b) the reliability
(A) Necessity
In Khelawon (supra) at paragraph 78 the court stated:
The necessity criterion is given a flexible definition. In some cases, such as in B.(K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness. Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need of the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission.
The Crown argues that necessity has been met on the facts in this case because the contents of the statement taken on March 5th, 2014, describe evidence which supports the four counts before this court. In contrast, the complainant's testimony at trial does not. The Crown submits that the necessity in this case is based on the unavailability of the testimony and not the witness. The Crown emphasises that the complainant is present and not only available for cross-examination, but has been cross-examined.
The defence made no submissions on the issue of necessity.
It is important to note that in court, the complainant claimed to not remember clearly how she was injured on February 19th, 2014. In her statement, she gave more and different details about this date and the events in September 2013 and in March 2014.
Based upon all the evidence, the test of necessity has been met on a balance of probability.
(B) Reliability
For the purpose of this application, it is important to note that the issue is threshold reliability and not ultimate reliability. The Crown must establish threshold reliability on a balance of probabilities. As stated again in Khelawon in paragraph 78, quoting from Justice Lamer in R. v. B.(K.G.):
The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence.
I turn now to consider indicia and guarantees of reliability for the out of court statement in this case.
1. Absence of Oath or Affirmation
The statement given to P.C. Pulumbarit was not taken under oath or affirmation. However, Ms Grewal did testify in-chief under affirmation that in September of 2013 that the accused:
(a) took her cell phone;
(b) looked at her private messages to her friend; and
(c) threw her cell phone to the ground and broke it.
Two things are significant about this evidence:
it is entirely consistent with her statement to P.C. Pulumbarit at page 42; and
it is entirely inconsistent with her later evidence in cross-examination and in re-examination wherein she clearly stated that the accused never read her message and did not throw her phone.
Ms Grewal's initial testimony in-chief on the first day of trial is worthy of belief and it corroborates the truth and reliability of her unsworn statement to P.C. Pulumbarit at the time, wherein she said he snatched her phone, read her messages and threw her phone on the ground. At the time of that statement, she also described that he slapped her.
There are other inconsistencies in her evidence under affirmation that also should be considered. For example, in-chief she indicated that during the incident on March the 5th, he threw her clothes out of her closet and, in cross-examination, she characterized herself as the one who had been upset and not the accused. She never mentioned him doing anything physical of this nature in cross-examination.
In addition, in-chief, Ms Grewal testified that she told the officer the truth when she gave the statement on March the 5th and then, she later said that she could not remember whether she gave him the truth.
There are other inconsistent aspects in her evidence of a similar nature that I do not intend to review at this point. The effect of these inconsistencies under affirmation diminish the absence of an affirmation at the time of the statement.
2. Caution
P.C. Pulumbarit testified that he told the complainant before she began her statement that the statement was needed as evidence and he further told her the importance of telling the truth. While he stated he usually tells witnesses that their evidence will later be used in court and the consequences of lying, he acknowledged in cross-examination that he made no note of doing that in this case. In re-examination he said it is not usually his habit to make notes of this. He was not asked to describe either in-chief or in cross what he usually says about the consequence of not telling the truth.
While the complainant denied being cautioned in this manner, she also testified repeatedly that she did not remember what she said to the police. Her memory is not sufficient to be reliable enough to discredit the officer. I find his evidence was not shaken in this regard and that it is worthy of belief and a factor to consider on the issue of threshold reliability.
3. Completeness of Record
P.C. Pulumbarit testified that he asked the complainant to read her statement over, make any corrections necessary and, if satisfied, sign or initial it. He testified that she did that and that there were no changes. In cross-examination, he also acknowledged that he did not note doing this in his book. The only confirmation about the process he used would be the initials that are found on page 43.
The complainant acknowledged that that was her signature or initials, but denied having an opportunity to read over her statement at the time. There is obviously no video of this statement which is the best record for to a court. However, there are 20 pages of detailed notes of this hour and five minute statement.
P.C. Pulumbarit explained that the complainant was upset so he did not want to take her to the station to use the video equipment, but that he had considered it and felt that he would have aggravated her situation had he done so. P.C. Pulumbarit is obviously a very careful officer who, not only took very detailed notes about not only the answers, but also the questions. He also initially asked only open-ended broad questions which he would, at various points, follow up with open-ended questions to get more details. He took the trouble to date each page of his notes and even added the day of the week, again indicating the care he takes and his thoroughness.
In terms of the accuracy of this record, the injuries he observed on March 5th are also relevant as well as the photographs and the evidence in-chief of the complainant with respect to the incident in September of 2013.
While there is a conflict between their evidence about whether the complainant read his notes over, the decision about the ultimate reliability is not to be decided here. It is important in considering threshold reliability that the complainant testified in cross that she called the police after she gave her statement to get a copy because she "did not remember" what she said and she wanted "to make corrections". This latter statement suggests she did remember what she said and she wanted to change it, otherwise why would she even be entertaining corrections? This certainly calls her reliability into question.
When asked in-chief if she told the police that the accused punched her on February 19th, the complainant first said she did not remember and then shortly thereafter she was asked if it was possible and she then said no. Those answers are inconsistent and further calls her reliability into question.
Based upon all of the evidence, I find that P.C. Pulumbarit was not shaken in his evidence. While he did not note that the complainant read it over and had an opportunity to make any corrections, I find that his evidence that she did is reliable and worthy of belief on the issue of threshold reliability.
Her initials also corroborate his statement that that took place.
4. Spontaneity
The statement on March 5th was given shortly after the events that day and in response to her 911 call. The matters of that day were very fresh in her memory. Her position that she called the police on March the 5th simply to have them take her luggage to a shelter is not credible given her level of education and functioning. That just does not make sense; whereas, her initial answer that she did it because he was throwing her clothes out of her closet makes more sense and there is a further explanation for calling the police contained in the statement to Officer Pulumbarit. The spontaneity of the call to 911 and the statement explanation for that call makes sense and are compelling on the assessment of threshold reliability.
5. Her Condition at the Time
A lot was made in cross-examination about the complainant's fragile emotional condition. At the same time, a lot was made about her intelligence, ability, and high level of performance in an intensive CGA program. While P.C. Pulumbarit described her as upset at points and crying, she was not under the influence of any intoxicant and she clearly, based upon the thoroughness of the questions and answers, understood what was transpiring, what was being said to her, and what she was communicating.
The officer further testified Ms Grewal never needed to stop at any point, did not demonstrate reluctance and he stated that he had no concern for her mental state at the time. She also had a clear operating mind at the time that was not encumbered by any intoxicant, medication or medical condition.
6. External Reliability Considerations
These have already been alluded to under other headings, but suffice it to say that her testimony in-chief about the incident on February the 19th, 2014, was very telling, important, and corroborative of her statement to the police, as were the injuries in the photographs of her condition and the observations of P.C. Pulumbarit.
7. Availability for Cross-Examination
As was described in R. v. Khelawon in paragraph 76:
The most important contextual factor in B.(K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability therefore is not so focused on the question whether there is reason to believe the statement is true as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence.
In this case, the complainant was not only available for cross-examination, but has been thoroughly cross-examined. This situation provides ample opportunity for the ultimate trier of fact to rationally evaluate both her testimony as well as the statement on the issue of credibility and reliability.
Conclusion
While the defence initially tried to distinguish the other two cases referred to me, R. v. Brake, [2014] O.J. No. 3090 and R. v. Murphy, [2012] O.J. No. 5680, because they were situations where there was some certainty in the evidence with respect to there being a lie, the defence ultimately agreed that the complainant's initial evidence in this case under oath about September 2013 presents trouble for that submission.
Based upon all of these factors and especially based upon the complainant's confirmation of her statement about September 13th while bound by an affirmation before this court, her subsequent recantation of that evidence in cross-examination and her ultimate denial in re-examination that she ever said that is particularly persuasive. There is reliable evidence before this court:
which supports the reliability and trustworthiness of Ms Grewal's out of court statement; and
there is evidence available for the ultimate trier of fact to rationally evaluate her evidence and her statement on the issue of ultimate reliability.
While this court always possesses a residual discretion to exclude evidence if its probative value is outweighed by its prejudicial effect, this is not such a situation. For these reasons, that statement is now admitted into trial for the truth of its contents.
Released: March 23, 2015
Madam Justice D. Hackett