WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
K.L., a Young Person
Before: Justice Patrice F. Band
Counsel:
- Ms. C. Vanden Broek, counsel for the Crown
- Ms. S. McPherson, counsel for the Young Person
NOTE: This judgment is under a publication ban described in the WARNING page at the start of this document. If the WARNING page is missing, please contact the court office.
Reasons for Judgment
Released October 31, 2017
I. Introduction and Issues
1K.L. and A.D. were charged with robbery and "wear disguise" for their alleged participation in a robbery on October 28, 2016. Both were young persons at the time.
2The dispositive issue in this case was the admissibility of two pieces of hearsay: what a witness, S.R., said to a 911 operator ("the 911 call") and what he later told police in a videotaped statement ("S.R.'s statement"). Only these could assist the Crown in proving identity in relation to K.L.
3At trial, S.R. claimed to have no recollection of the alleged robbery. He also claimed no recall of the 911 call, his statement to police or their contents.
4The Crown argued that the 911 call satisfied the res gestae exception and that S.R.'s statement met the requirements of the principled exception as recently refined in R. v. Bradshaw.
5There is no direct evidence as to when the 911 call was made relative to the events. However, there is evidence that prior to making it, S.R. had time to, and did in fact, discuss the events with his friends.
6S.R.'s statement to police was not given under oath or solemn affirmation. He was not warned of the consequences of lying to the police. While S.R. testified in the sense of sitting in the witness box and appearing to answer questions, that process was a charade. S.R. made clear his determination not to assist the Crown by disagreeing or claiming lack of recall at every turn. By contrast, he was willing to agree with anything that defence counsel put to him in cross-examination, even where doing so belied his claimed lack of recall. S.R.'s testimonial stance at trial was transparently false. He might as well have been completely absent. It is for this reason that the Crown's application must satisfy the test set out in Bradshaw rather than R. v. B.(K.G.).
7At the end of trial, I ruled that both statements were inadmissible, with reasons to follow. These are my reasons.
II. Background and Evidence
8The alleged robbery took place at the home of P.S., a marihuana dealer who was the apparent target. At the time of the alleged robbery, P.S. had four friends over: S.R., M.B., M.Z. and S(1). Everyone was taking drugs and playing or watching Xbox.
9The Crown called K.S., P.S., and S.R. in sequence. P.S. testified that because he was expecting another friend, K.S., to arrive shortly, he left the front door unlocked. After that, another young male, S(2), knocked on the door but P.S. denied him entry as he had not called in advance. Seconds later three or four males, all dressed in black clothing and ski masks, burst in and went to P.S.'s room, where he was beaten. According to P.S., two of them were carrying what appeared to be real handguns. P.S.'s friends came to his aid and were able to chase the robbers out. In the process, two picture frames were broken. P.S. noticed that his wallet was missing, but no cash had been taken. His marihuana stash was untouched. P.S. suffered some injuries and was bleeding. K.S. saw blood on the landing outside P.S.'s front door.
10According to P.S., these events took place at approximately 3:45 or 4:00 p.m. Based on K.S.'s testimony, the events took place sometime between noon and 4:00 or 5:00 p.m. M.B.'s evidence was of no assistance in this regard.
11Some time after the alleged robbery, P.S. phoned K.S. to ask for a drive to the bank to replace his bank card. (No one suggests that K.S. was present during the alleged robbery.) When they returned from the bank, they found police near P.S.'s home. Both were taken to the station to provide statements.
12After P.S.'s evidence, the Crown invited me to dismiss the charges against A.D. for lack of sufficient evidence of identity and I did so.
13The Crown took a different position with respect to K.L. None of K.S., P.S. or M.B. testified that K.L. was involved in the robbery. To the contrary, P.S. testified that he only recognized A.D. Being taken to portions of his prior statement to police, in which he had identified K.L., did not refresh his memory. As he put it"now that I think about it, I don't think so" and "now that I see [K.L.] today, I don't recognize him … it just wasn't him." The Crown did not seek leave to cross-examine P.S. pursuant to s. 9(2) of the Canada Evidence Act ("CEA") and, therefore, did not attempt a KGB application to have his prior inconsistent statement introduced for its truth.
14Like P.S. before him, M.B. claimed to have suffered memory loss. While he had told police that he recognized K.L. "100%" in his statement to police, he indicated that he had done so based on what his "buddies" had told him. It was only an "assumption." The Crown did not seek leave to cross-examine him or apply to have his statement to police admitted for its truth.
15By this point, S.R. had not yet been called. He had given two statements implicating K.L. In the 911 call, he identified K.L. as someone he knew from middle school and high school. In his statement, he later told police that he knew K.L. from middle school. K.L.'s mask had dropped down during the scuffle or the chase, and he saw his face.
16After a failed request (first by S.R.'s father and then by S.R. himself) to have me excuse him from testifying, S.R. stepped into the witness box. His testimony amounted to a claim that he had no recollection of any of the events of October 28. His first memory was waking up in his bed on October 29. The reason for his complete amnesia was that he had ingested quantities of marihuana, pills (Percocet and/or Xanax) and tequila on October 28. While he admitted that it was his voice in the 911 call, he did not remember making it. He did not remember giving a videotaped statement to police either. At the Crown's request, S.R. reviewed his statement to police while in court. It did not refresh his memory. Not "even a little." He swore that his in-court testimony was the "full truth."
17After stating that a KGB application was going to be made in relation to S.R.'s statement, the Crown declined to cross-examine him in the s. 9(2) voir dire. Having been given some latitude by Defence counsel during the examination-in-chief, the Crown indicated that she did not expect it to be fruitful.
III. The Crown's Hearsay Applications
18The only potentially admissible evidence that K.L. was involved in the alleged robbery is found in S.R.'s 911 call and S.R.'s statement. The Crown applies to have the 911 call admitted pursuant to the res gestae exception. She applies to have S.R.'s statement admitted pursuant to the principled exception.
19Because the 911 call (and only the 911 call) also identifies K.L., the Crown relies on it, if admissible, as corroborative evidence supporting the substantive reliability of S.R.'s statement. The Crown's position is that without the 911 call, her application to admit S.R.'s statement would be weakened.
20Given my decision to exclude the 911 call, I do not have to decide whether a prior consistent hearsay statement of a witness can be relied upon as corroborative of the same witness's subsequent hearsay statement.
21The Crown also fairly admitted that the in-court testimony of P.S., M.B. and S.R. was not credible. However, she argued that the testimony of M.B. and P.S. that a robbery happened, that there were drugs in the apartment and that P.S. was injured were tantamount to bedrock. The differences between their accounts and S.R.'s statement (such as K.L.'s presence or absence, the number of robbers and guns, the weapons used, what was taken, the degree of injuries and destruction to the apartment) do not go to the "core" of the allegations and can safely be left to the trier of fact.
A. The 911 call does not satisfy the res gestae exception
22The parties agree that R. v. Nicholas sets out the res gestae test. In that case, the call was made within 10 minutes of the attack and there was no indication of any motive for misrepresenting what had happened. The Ontario Court of Appeal wrote:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
23The gist of the 911 call is that S.R. had chased the robbers out of P.S.'s apartment with M.B. in tow and had seen them run into a residence. At some point, he was looking at the location from behind a bush. He told the dispatcher that seven or eight guys with masks had been involved. They had weapons including nunchucks, knives and one of them (not K.L.) had a gun. They also had "poles or whatever." They had beaten P.S. and "taken all they could get" including "maybe a couple hundred dollars." They also "destroyed" the apartment. While P.S. had a Band-Aid on his nose, no one was injured and no one was bleeding.
24At the outset of the call, S.R. sounds somewhat excited. During the call, he answers some questions by asking another male – apparently M.B. – for his input and relays it to the dispatcher. Later, he says he is returning to the apartment and a male can be heard yelling in the background. The parties agree that the voices are M.B.'s and P.S.'s, but S.R. himself was unable to say.
25The Crown called no evidence as to the time of the 911 call and S.R. was unable to assist in that regard. He did not know the time. It could have been dark outside. He was unable to recall what bush he had been hiding in or how far it was from P.S.'s apartment.
26At trial, P.S. testified that he had "obviously talked to S.R. after the robbery" and that he had done so before making his statement to police. In that statement, he told police that K.L.'s mask had come off. At trial, he explained that that was something one of his friends had told him. He further testified that "most of" his statement was what S.R. had told him. This included identifying K.L. and reference to nunchucks being used. This was not what P.S. saw; it was what S.R. told him.
27M.B. explained that after the robbers left, he and his friends stayed behind and tried to figure out what to do. He also spoke to his friends before giving his statement to police. That is why he told police K.L. had been involved.
28In cross-examination by defence counsel, S.R. testified that he would not have been surprised if he had had a conversation with P.S., M.B., M.Z. and S(1) before calling 911. Also, it was "very possible" that what he had told the 911 operator were things that others had told him.
29The Crown submits that S.R.'s level of excitement makes up for the absence of evidence as to the time at which the call was made relative to the events it purported to describe. She also points to the apparent fact that S.R. had returned to P.S.'s unit and that P.S. was still home.
30The 911 call is not sufficiently moored to the sequence of events. The factors the Crown points to do not permit me to find that the 911 call was made "before there has been time to contrive or misrepresent." To the contrary, the evidence gives rise to a strong possibility of concoction or fabrication starting from the moment the alleged robbers left the apartment. S.R.'s level of excitement at the beginning of the 911 call is insufficient to keep these concerns at bay.
31The 911 call does not satisfy the res gestae test.
B. The principled approach – legal principles
32S.R.'s statement is necessary in the legal sense because he claimed to be unable to recall the events described in it even though his apparent amnesia was not believable. I will discuss this further below.
33The issue is whether S.R.'s statement meets the test for threshold reliability on a balance of probabilities. This is a critical issue because "untested hearsay evidence may be afforded more weight than it deserves." In criminal trials, the analysis also has a constitutional dimension because such evidence can threaten trial fairness. This is why trial judges play an important gate-keeper function and retain a discretion to exclude evidence even if it meets the requirements of the principled exception.
34At the outset"trial judges must first identify the specific hearsay dangers presented by the statement and consider any means of overcoming them." The dangers relate to difficulties in assessing "the declarant's perception, memory, narration, or sincerity." These "should be defined with precision to permit a realistic evaluation of whether they have been overcome."
35Threshold reliability can be established – and hearsay dangers overcome – when procedural or substantive reliability of the statement is demonstrated.
36Procedural reliability is concerned with whether adequate substitutes for testing the evidence exist to allow the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. These can include the videotaping of a statement, the presence of an oath and a warning about the consequences of lying. In the case of a recanting witness, some form of cross-examination – such as preliminary inquiry testimony or of a recanting witness at trial – is usually required. In KGB, Chief Justice Lamer confirmed that the lack of contemporaneous cross-examination is the most important of the hearsay dangers.
37Substantive reliability is concerned with the inherent trustworthiness of the statement. The standard is a high one. The Supreme Court described it as follows:
Where the statement is
- "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process;"
- "made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken;"
- made "under such circumstances that even a skeptical caution would look upon it as trustworthy;"
- "is so reliable that it is 'unlikely to change under cross-examination;'" or
- where "there is no real concern about whether the statement is true or not because of the circumstances under which it came about."
38In making this determination, trial judges can consider the circumstances in which the statement was made and evidence that corroborates or conflicts with it. But the analysis must be focused at the admissibility stage. Substantive reliability is concerned with whether the circumstances and any corroborative evidence provide a rational basis to reject alternative explanations for the statement, other than its maker's truthfulness or accuracy.
39The use of corroborative evidence at this stage is directed at determining whether the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant's sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.
40Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement that the moving party seeks to rely on. Its function is to mitigate the need for cross-examination on that point. To do so, it "must show that the material aspects of the statement are unlikely to change under cross-examination." Put another way, corroborative evidence does so, when considered in the circumstances of the case, when it "shows that the only likely explanation for the hearsay statement is the declarant's truth about, or the accuracy of, the material aspects of the statement." It is useful if it "eliminates the hypotheses that cause suspicion."
41Trial judges must be able to rule out any plausible alternative explanations on a balance of probabilities. In addressing this concern, they "must therefore identify alternative, even speculative, explanations for the hearsay statement."
42And, importantly, the proposed corroborative evidence
… must itself be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry. Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence.
43When trying to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, trial judges should:
- Identify the material aspects of the hearsay statement that are tendered for their truth;
- Identify specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
- Based on the circumstances and these dangers, consider alternative, even speculative explanations for the statement;
- Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
44While procedural and substantive reliability can work in tandem in the sense that "factors relevant to one can complement the other" the overall standard remains high and great care must be taken to ensure that the statement is sufficiently reliable to overcome the specific hearsay dangers it presents.
C. The Crown has not established procedural reliability of S.R.'s statement
45S.R.'s statement was not given under oath or accompanied by a caution as to the consequences of lying. While it was on videotape, the camera angle was from above S.R., who was wearing a baseball cap. During much of the statement, his eyes and other parts of his face are obscured.
46As the Supreme Court expressed in Bradshaw: "procedural reliability is concerned with whether there is a satisfactory basis to evaluate the statement."
47In this case, S.R.'s in-court testimony was meaningless. Aside from demonstrating that S.R. was not a credible witness, cross-examination was an exercise in futility. In foregoing her right to it, the Crown conceded as much. During cross-examination by defence counsel, S.R. agreed that he had not been warned about the consequences of lying to the police on video or earlier (i.e. off camera). This inadvertent admission demonstrated that S.R. was feigning his lack of recall. In my view, this is virtually indistinguishable from a case in which a witness is absent or simply refuses to answer questions.
48As the Court of Appeal wrote in R. v. Conway"fruitless cross-examination does little to ensure that the reliability criterion for admissibility is met." This is because it impedes the ability of the trier of fact to assess the ultimate reliability of the prior statement. For this reason other indicia of reliability must be in place.
49I pause here to comment on the Crown's submission about the absence of an oath or affirmation at the police station. The Crown submitted, by way of a rhetorical question: if the oath is not important to S.R. in court, then how important was it to him in the first place? Aside from highlighting S.R.'s lack of credibility as a witness, and perhaps the fact that for S.R., no solemnity is enough solemnity, this submission overlooks the important role that the oath and caution can play in s. 9(2) applications as a matter of practice. In my experience, those two safeguards can give the cross-examiner (usually the Crown) significant leverage with a recanting or apparently forgetful witness. It is different when a witness, like S.R., has nothing to lose. The Crown's decision to forego cross-examining him underscores this point.
50More importantly, S.R.'s lack of respect for the oath cannot act as a substitute for the absence of an oath at the time he gave his statement to police.
51The Crown also submitted that the timing of S.R.'s statement and the fact that it was given voluntarily present substitute indicia of reliability.
52Arguably, S.R.'s in-court testimony that his first recollections were of October 29 ("the next day") establishes by inference that his statement had been given on October 28. But there was no evidence at trial as to the time at which S.R.'s statement was given to police. The videotape is time-stamped at approximately 6:10 p.m. on October 28, 2016 and at one point shortly after the video begins, the officer says it is "quarter after six." Even assuming that I can accept this evidence, it does not accomplish what the Crown submits.
53Aside from certain special instances, such as those involving young children, timing of such a statement says nothing about its truthfulness. And where, as here, S.R. had an opportunity to concoct and did discuss the events with his friends, the timing of his statement does not compensate for the inherent dangers it presents.
54Assuming that S.R. attended the police station and gave his statement voluntarily, the following passage from Conway is apposite:
…voluntariness is no guarantee of reliability. A person may voluntarily lie as easily as he or she may voluntarily tell the truth where to do so is consequence free.
55In the circumstances of this case, when combined with the absence of an oath or caution, the apparent voluntariness of S.R.'s statement is of little assistance to me in assessing its reliability.
56The fact that S.R.'s statement was videotaped is the only indicium of reliability in this case. However (and this is not conclusive), the fact that S.R.'s eyes and parts of his face were obscured for much of his statement further impeded my ability to evaluate its quality.
57I am left without sufficient tools to evaluate the reliability of S.R.'s statement. It does not meet the test for procedural reliability.
D. The Crown has not established substantive reliability of S.R.'s statement
58S.R.'s statement discloses that P.S. was robbed by "seven to eight guys." After S(2) entered the apartment and spoke with P.S. in the living room, four of them "pounded on" P.S. and took money ($100-200) and the marihuana. One of them was K.L. One had a gun in his waistband. Another was swinging nunchucks. They "knocked everything off the walls."
59As I have discussed above, the circumstances surrounding S.R.'s statement do little to demonstrate trustworthiness. As a result, the Crown's application relies on the corroborative value of P.S. and M.B.'s testimony. (There is no physical evidence.)
• P.S. and M.B.'s testimony cannot corroborate S.R.'s statement
60P.S. and M.B.'s testimony ought not to be considered as potential sources of corroboration for S.R.'s statement for two reasons.
61First, both P.S. and M.B. explained that their statements – particularly insofar as K.L. was involved – were the result of discussions with their friends. P.S. made it clear that S.R. was his principal source of information. He testified that "most of [his] statement was what [S.R.] had told [him]" and that S.R.'s version had "coloured" his. M.B.'s evidence raises similar concerns.
62The Crown is requesting that the testimony of P.S. and M.B., which is tainted by S.R.'s, be used to corroborate S.R.'s statement. I do not believe that such circularity is permitted by the principled approach.
63Second, P.S. and M.B. are witnesses whose testimony cannot be trusted.
64The Crown conceded that their testimony was not credible. It was obvious that they were not telling the truth.
65M.B. testified that the incident was "a blur." He could remember that three to four males committed the robbery and that he saw one or two guns. When the Crown confronted him with the fact that he had identified K.L. as having been involved, M.B. claimed not to recall making the statement. He also attempted to argue that his current position – that K.L.'s presence was an "assumption" he made based on what his friends had told him – was consistent with the contents of the (now forgotten) statement as a matter of logic. For that, he pointed to a passage in which he had told police: I am "not assuming but I saw him"!
66In his testimony, P.S. explained that on the day in question, he had smoked 10 grams of marihuana and had also taken three Percocets. At the time, he was smoking five to seven grams per day. Due to his daily marihuana use, his "memory is fucked."
67P.S. also acknowledged that he lied to police about being a drug dealer. He was "OK lying to police" but not "OK" lying in court because of the oath.
68The evidence of M.B. and P.S. suffers from a profound lack of credibility and reliability. It cannot be trusted. As such, it cannot corroborate S.R.'s statement.
69If I am mistaken about that, it is my view that their testimony does not eliminate the risks inherent in S.R.'s statement.
• P.S. and M.B.'s testimony does not assist in the substantive reliability analysis
70The material aspects of S.R.'s statement that the Crown seeks to tender for their truth are that a robbery took place and that K.L. was involved.
71Because P.S. and M.B.'s testimony does not corroborate the material aspect of K.L.'s involvement, it seems axiomatic that it cannot assist in the substantive reliability analysis. Yet, the Crown urged me to recall that they both recanted. That submission appears to invite me to import into their in-court testimony their (now disavowed) identification of K.L. from their statements to police. Without a fruitful cross-examination pursuant to s. 9(2) of the CEA or additional steps, such as a KGB Application, this is impermissible.
72If I am mistaken about the above, then the Bradshaw analysis must continue.
73The main concern with S.R.'s statement is its sincerity. He was not a credible witness and in his statement, he lied about the fact that P.S. was a drug dealer. The Crown argued that there was an absence of a motive to fabricate the statement; rather, a strong reason to call police must have existed to overcome S.R.'s presumed disinclination to involve them "in his business" (i.e. attending at the place of P.S.'s drug-dealing enterprise). This submission might have some force if P.S.'s statement were at issue. It has little force in relation to that of S.R., who was not a drug dealer.
74The accuracy of S.R.'s statement is also in question. P.S. testified that S.R. had smoked approximately three-and-a-half grams of marihuana. S.R. testified to much greater consumption. Either way, concerns about his perception of the events arise.
75Alternative explanations for S.R.'s statement are that he was lying or otherwise untruthful. One could speculate that the entire accusation was retribution for a prior robbery in which P.S.'s brother had been the victim of potential rivals. Those alternatives are not ruled out by P.S. and M.B.'s testimony.
76Most importantly, P.S. and M.B.'s testimony does not identify K.L. as a perpetrator. In addition, their testimony refers to three to four robbers (not seven to eight). P.S. was adamant that S(2) was denied access to the apartment. P.S. referred to two guns, not one. P.S. denied being robbed of cash and marihuana.
77Even if one accepts that the corroborative evidence assists in establishing that a robbery of some form occurred, that there were drugs on the premises and that P.S. was injured, it does nothing to support the central allegation for which S.R.'s statement is proffered: that K.L. was involved. Nor does it rule out the possibility that S.R. was untruthful or inaccurate.
78The evidence of P.S. and M.B. does not mitigate the need for cross-examination as to the nature of the robbery and its perpetrators. It has not been shown that the material aspects of the statement are unlikely to change under cross-examination or that the hypotheses that cause suspicion have been eliminated. To the contrary, based on its material inconsistencies relative to the evidence of P.S., who occupied a privileged position relative to the events, one could reasonably have expected it to change under a responsive cross-examination.
79I also note that S.R.'s statement was inconsistent with his 911 call in terms of how recently he knew K.L., the damage done to the apartment and the weapons used.
80Based on this record, it would be impossible to find that the only remaining likely explanation for the material parts of S.R.'s statement was his truthfulness or accuracy. Viewed in the context of the circumstances under which it was made and the corroborative evidence offered in its support, S.R.'s statement fails to satisfy the test for substantive reliability.
IV. Conclusion
81The 911 call and S.R.'s statement are inadmissible hearsay in this trial.
Released: October 31, 2017
Justice Patrice F. Band