WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.
Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AHYJAH FRANCIS-SIMMS
Before: Justice Peter C. West
Heard on: September 6, 9, 11-13, and 16-17, 2019 and October 7-8, 2019
Reasons for Judgment released on: February 6, 2020
Counsel:
- Ms. L. Crawford, Mr. P. Murray — counsel for the Crown
- Ms. P. Fry — counsel for the accused Ahyjah Francis-Simms
Introduction
1On June 2, 2018, a shooting occurred at the entrance to the annual Pickering Ribfest, held in the park behind the Pickering Public Library and the Pickering Town Hall. The shooting occurred at approximately 11:08 p.m.
2Ahyjah Francis-Simms was charged with four counts of aggravated assault; four counts of assault with a weapon; two counts of discharge firearm with intent to wound; discharge firearm reckless as to life or safety (s. 244.2(1)(b)); possession of a firearm obtained by crime (s. 96(1)); unauthorized possession of a firearm (s. 91(1)); possession of a firearm knowing possession is unauthorized (s. 92(1)); careless use of a firearm (s. 86(1)); unlicensed person possess prohibited/restricted weapon (s. 91(2)); three counts of firearm possession contrary to prohibition order (s. 117.01(1)); and two counts of fail to comply recognizance (s. 145(3)) in relation to this shooting. A preliminary inquiry was commenced on September 6, 2019. At the conclusion of the evidence it was agreed by counsel that written submissions would be provided respecting committal on all charges.
3The Crown submits there is sufficient evidence upon which a reasonable jury, properly instructed could find Mr. Francis-Simms is a party to the shooting of Shamar John, Vaughan Roberts, Jwoel Benn and Andrew Joseph. The defence argues there is a paucity of evidence of the identification of Mr. Francis-Simms as being involved in this shooting and he should be discharged.
The Law Respecting Committal at a Preliminary Inquiry
4The combined effect of s. 548(1) of the Criminal Code and United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, require a committal where there is any evidence upon which a reasonable jury, properly instructed, could convict. It is not a question of whether a properly instructed jury, acting reasonably, would infer guilt from the evidence adduced at a preliminary inquiry, only whether they could do so.
5The law is well-settled at a preliminary inquiry, the justice is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all preliminary inquiries, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, the preliminary inquiry justice must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact -- in this case, the jury. See United States of America v. Shephard, supra, at pp. 1079-1080; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172, at p. 174; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at paras. 2-4.
6In R. v. Arcuri, 2001 SCC 54 (CanLII), [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial but noted that the task of the preliminary inquiry judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, "inevitably requires the judge to engage in a limited weighing of the evidence," in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw." In short, the judge asks only "whether the evidence, if believed, could reasonably support an inference of guilt." Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the "continuing validity" of the "traditional common law rule" articulated in United States of America v. Shephard. McLachlin C.J.C. stated, at para. 30:
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
7The Court went on to note that while the judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw, this weighing, however, "is limited". The judge does not ask whether he or she would conclude that the accused is guilty; neither does the judge draw factual inferences nor assesses credibility. The question to be addressed is "whether the evidence, if believed, could reasonably support an inference of guilt": R. v. Arcuri, supra, p. 32.
8In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R. 635, at paras. 18 and 25 (2), this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at p. 380; R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.), at paras. 6-9; and R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4. It is not my function to weigh competing inferences or to choose one over another: R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.) at 165 (see also R. v. Martin, 2001 CanLII 4971 (ON CA), [2001] O.J. No. 4158 (Ont. C.A.); R. v. Tuske, [1978] O.J. No. 1253 (Ont. C.A.); R. v. Manickavasagar, [2004] O.J. No. 600 (Ont. C.A.). Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant, [2004] S.C.J. No. 74 (S.C.C.); R. v. Deschamplain, 2004 SCC 76 (CanLII), [2004] 3 S.C.R. 601; R. v. Magno, 2006 CanLII 21758 (ON CA), [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.).
9Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Shephard test. Neither can a preliminary hearing judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight: Dubois v. the Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366; Mezzo v. the Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.
10Further, the inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. If there are competing inferences, these are for the trier of fact to resolve and if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. See R. v. G.W. (1996), 1996 CanLII 427 (ON CA), 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.), at paras. 37-41; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at paras. 18-22.
11Accordingly, at the preliminary inquiry, the justice must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:
In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.
If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.
12In the case of R. v. Munoz (2006) 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70 (Ont. Sup. Ct.), para. 22, Ducharme J. sought to define what constitutes a "reasonable inference":
However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.
13The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, supra, at p. 209 as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77 (CanLII), 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.
14In a ruling on an application for certiorari, R. v. C.T., [2005] O.J. No. 2772, Justice McCombs of the Ontario Superior Court of Justice described the function of the preliminary hearing judge in dealing with inferences to be drawn from circumstantial evidence in the following manner:
Accordingly, the preliminary inquiry judge must go beyond merely considering whether the circumstantial evidence presented by the Crown supports possible inferences that could establish the elements of the offence; the judge must also consider whether these inferences are reasonable. The inferences must therefore go beyond speculation or conjecture: R. v. Coke, [1996] O.J. No. 808 and R. v. Brissett, [2004] O.J. No. 5525.
15An inference is permissible so long as it is reasonable and logical. It need not be a strong inference or be capable of creating practical certainty or be easy to draw. As stated by the Court of Appeal in R. v. Katwaru, supra, at para. 40:
In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.
16In a circumstantial case, as Durno J. noted in R. v. Papadopoulos, [2004] O.J. No. 2766 (Ont. S.C.), at para. 184, "…circumstantial evidence cannot be examined piecemeal. The cumulative effect of the evidence must be examined." Dambrot J. in R. v. Bryce, [2015] O.J. No. 5971 (Ont. S.C.), at para. 41, in dealing with the preliminary inquiry judge's responsibility to consider the whole or totality of the evidence in determining reasonable inferences held:
In my view, when a preliminary inquiry judge makes the error of analyzing and rejecting pieces of circumstantial evidence in isolation, without ever considering their potential force when viewed together and as a whole, such an error is an example of failing to consider the whole of the evidence and is jurisdictional.
He relied upon three judgments of the Ontario Court of Appeal: R. v. Boone, 2012 ONCA 539, (Simmons J.A., in dissent although joined by Hoy J.A. on this issue) at para. 32 and 102; R. v. Charles, 2008 ONCA 237, at para. 3, and R. v. Muir, 2008 ONCA 608, at para. 1.
17As I have indicated above, as a preliminary inquiry judge, I am to determine whether the inferences argued by the Crown are available to a reasonable jury, properly instructed, on the evidence called. I recognize reasonable inferences are those drawn from facts established by the evidence and must rise above mere speculation. I also recognize I am not to choose between competing inferences that are available and must take the Crown's evidence at its highest. Inferences to be drawn from circumstantial evidence need not be "compelling" or "easily drawn" in order to be reasonable. A preliminary inquiry judge is not to assess the credibility or reliability of the evidence or the weight to be given to a witness' evidence, the question of whether an inference should ultimately be drawn must be left to the trier of fact – jury or judge alone. In determining if reasonable inferences are available on the evidence the preliminary inquiry judge must not consider the evidence in a piecemeal fashion but rather must consider the totality or the whole of the evidence.
Factual Background
18On June 2, 2018, four persons were struck by bullets as they were walking or standing at the entrance to the annual Pickering Ribfest, just outside the Pickering Library and Pickering Town Hall. These individuals were situated on the sidewalk, which was located at the top of the circular driveway where people could be dropped off.
19The evidence disclosed that the shots came from the west side of Glenanna Road, which runs in front of these buildings. Shell casings were located by police in the shrubbery and on the pavement of the parking lot just to the west of the sidewalk running along Glenanna. Bullet fragments were located in the area of the sidewalk in front of the library and town offices buildings. The majority of the evidence called at the preliminary inquiry suggested there was one shooter, although there was some evidence suggesting there may have been a second shooter.
20A feature of this preliminary inquiry was the loss of memory claimed by a number of the key witnesses to the shooting, including two of the individuals who were shot, Shamar John and Vaughan Roberts. An additional key witness whose memory was refreshed in part by referring to his two police statements also claimed to have a loss of memory with respect to certain portions of his previous police statements provided shortly after the shooting on June 2, 2018.
21As could be expected the events surrounding the shooting were chaotic, emotionally upsetting and shocking and took place during a very short time period. I will deal with the evidence of the various witnesses throughout my reasons as they relate to the complex and challenging legal issues dealing with past recollection recorded and the principled exception to the hearsay rule, which are raised in this case, which arise as a result of the loss of memory and lack of recall by certain key witnesses.
Analysis of the Police Statements of Zachery Hamedi (June 3, 2018 and June 24, 2018) and whether they should be admitted for the truth of their contents through Past Recollection Recorded exception to the Hearsay Rule or the Principled Exception to the Hearsay Rule
(a) Evidence of Zachary Hamedi at the preliminary hearing
22Zachery Hamedi testified at the preliminary inquiry by video of his computer in his residence room on September 9, 2019, as he was studying in university in the United States. On June 2, 2018, he called 911 because of a shooting that took place at the Ribfest in Pickering. He testified he had driven three friends, Shamar, Khalil and Vaughan to the Ribfest on that date. He parked his father's Prius in the parking lot across from the library/Town Hall where the front entrance to the Ribfest was located. At some point they went to McDonald's to buy some food. He returned to the Ribfest at some point and parked in the same spot. Glenanna is the road which goes between the parking lot and the library.
23He testified he may have heard an argument but it was not loud enough to pay attention. He called 911 that night because two people were hurt with gunshot wounds. The loud sound he heard he thought was fireworks. He did not know if what he saw was a gun, as he literally saw smoke. He believed the sound he heard was coming from the side of the road (Glenanna) where his car was parked in the parking lot. In terms of any individuals he saw in that area the only thing that caught his eye was "like a blue scarf." The people who were hurt were at the entrance to the Ribfest at the top of the loop. The two people hurt were Shamar John and Vaughan Roberts. He was at McDonald's before this with Shamar but was not sure if Vaughan was there.
24His car stayed in the parking lot and he believed the police towed it and searched it for evidence. The Crown then requested Mr. Hamedi if he had copies of his two police statements that he could refer to. Mr. Hamedi recalled going to the police station but he really did not have a choice as the police had his father's car. He was told the police interview would be audio and video-recorded. He was asked if he would like to refer to the transcript that had been sent to him to refresh his memory concerning his evidence of an argument he overheard and he said yes. Mr. Hamedi was directed to look at page 16, however, Mr. Hamedi advised the statements were on his phone and did not have page numbers. He advised he had no way to print the statements as he did not have a printer at school. As a result of this technical difficulty his testimony had to be adjourned until October 7, 2019 to allow the Crown to courier printed copies of the two statements.
25On October 7, 2019, Mr. Hamedi advised he had received the two transcripts of his police statements and reviewed them. He drove three or four friends to the Ribfest on June 2, 2018. When they arrived he parked in the Pickering Town Centre parking lot just across from the library/Town Hall entrance to the Ribfest, it was not dark out. They left to go to McDonald's for food. He did not recall who was with him. He believed it was dark out. He drove everyone back to the Ribfest when they were finished at McDonald's and he parked in the same area. He believed he heard some arguing when they got back to the Ribfest. He was standing outside the Ribfest at the entrance. He looked over to the area he believed the arguing was coming from and saw people arguing. There was one group arguing with another group. He was standing at the top of the semi-circle driveway but did not remember where the groups that were arguing were standing. They were to his left.
26He called 911 because his friend Vaughan Roberts was hurt by a gunshot wound. He was a metre from Vaughan when he was hit in his leg. He heard a fireworks sound. He did not remember how many sounds. He did not look to see where sound was coming from as he was running but he probably took a quick glimpse. He looked across the road and just saw smoke. He saw it around a person. He did not remember what the person looked like or what clothing this person was wearing. This person was somewhat in area his car was parked, as this person was in the same parking lot. He did not remember exactly what this person was wearing. He did not remember if anyone else was around this person. He initially said he assumed this individual was near where the argument was happening but then testified he was not.
27He was at the top of the semi-circle running for his life. He called 911 after he realized people were injured. Vaughan Roberts said his leg was hurting and he saw another person was injured as well.
28Mr. Hamedi said he had the transcripts of his two statements in front of him. He remembered giving two statements to the police. On June 3, 2018, he went to the police station to get his car. He spoke to a woman police officer, who he believed was a detective. The police spoke to him a second time at his house and this statement was audio recorded. He was asked if it would help refresh his memory if he looked at his first statement concerning where the smoke was coming from and what he told the police then and he said "Sure." He was directed to page five, which he read to himself. After reading this he said it refreshed his memory "somewhat."
29Mr. Hamedi testified he saw a person across the road with smoke coming from around that person. This person had a gun in their hands. He did not remember if it was big or small but it was a gun. He was directed to page 26 and he said he did not remember hearing four or five gunshots.
30He was then directed to his second statement on June 24, 2018, at page 15, which he read. He then said he told the person with the gun had a mask on but he did not remember that now. He was asked if he remembered the person's clothing and he said he did not remember anything about that. He was then directed to page 13 and now said this did refresh his memory as the person with the gun was wearing grey.
31He was then directed to page 25 to the middle of page 27, where D.C. Conforti asked him a questions about the person with the grey sweater or grey shirt. He did not remember giving the answers in the transcript on those pages. He did not remember now a grey T-shirt hoodie. He also did not remember now the information he provided concerning the individual having a side bag.
32When he was asked whether his memory compared when he provided the statement to the present time, he said on the day of the second statement the police woke him up and he was just trying to get them out of his house. He did understand the importance of telling the police the truth and he was trying to be as truthful as possible with them. When he was describing things that went on around him he was trying to be as accurate as he could be.
33His brother had woken him up as the police were at the door of their house. He also had watched the video and listened to the audio. He did not have any concerns about how accurate the transcript is and he "somewhat remembered" saying what was in his statements to the police. When he was asked if he wanted to listen to the portions of his statement the Crown had put to him to make sure the transcripts were accurate Mr. Hamedi testified he was confident they were accurate, "why wouldn't they be accurate." He was confident what was in the transcripts was what he said to the police. He was trying to be as accurate as possible with them.
34In cross-examination Mr. Hamedi testified he tried to give the best description of what he remembered and it was just a month after. When he was asked if it was fair to say he might be mistaken about certain aspects of his evidence when he was speaking to the police, he said "I don't think so." When he went to the police station the first time he was trying to be helpful. He did not remember whether he gave the police any clothing description of the person with the gun at that time. In the first statement he remembered telling the police the person with the smoke around the gun was behind a car. He could not see him head to toe. He told the police this person was wearing a mask but has no recollection today what the mask looked like.
35When the police asked him to describe the gun Mr. Hamedi agreed he told them, "I didn't even see it, I just saw smoke, like when he shot it there was just smoke around the whole gun. I wasn't even close enough to see the gun. I didn't, I don't know who it is." When it was suggested that he did not even see a gun, Mr. Hamedi testified, "I saw a physical gun, that's all I, yeah, I saw a physical gun." When he was asked if he was lying to the police when said he didn't see a gun and he wasn't close enough to see a gun, Mr. Hamedi replied, "Hold up, the way I was explaining it was I just didn't see what type of gun it was." Mr. Hamedi later testified he was not close enough to know what type of actual gun it was.
36When Ms. Fry suggested he also couldn't describe the gun, Mr. Hamedi testified, "Yes, but then, later on I was in front of, there's a hole there where the bullet came out of, like obviously, obvious detail." He saw something round that looked like a hole and there was a lot of smoke. He also told the police when he first saw the person holding something, it was up in the air because usually when he heard the gunshot he thought the person did it so the people he was having an altercation with would know he had a gun. He did not think this person was actually trying to shoot at them.
37He remembered there were two people but he really did not remember saying there were eight or nine people. He was directed by Ms. Fry to page 20 where he was asked how many people went across the street and he told the police, "eight or nine," Mr. Hamedi testified he did not remember an exact number and he would feel he was making an assumption as to the word group of people. He agreed it was a group of people, certainly more than four or five. When he was asked if he could describe the clothing of anyone who went across the street he said one was wearing grey. He did not know anyone else's clothing.
38In his police statement when he was asked to describe the gun, Mr. Hamedi said, "I don't know what the gun, what gun it was, I think, I don't know what gun it was, I just know he had a mask on." He agreed he was trying to help the police at that point. He was trying to give them as much information as he possibly could. He remembered saying to the officer, "He's just a guy in a mask, I forgot, I think he was wearing grey, I don't remember." The occurrence was unexpected, very shocking, frightening and happened in the matter of seconds. When he realized the fireworks sound was gunshots he was running for his life.
39It was suggested there were no lights in the parking lot and Mr. Hamedi disagreed there were lights in the parking lot and there were street lights next to where the person was in the car. He agreed he recalled hearing four or five shots fired but did not hear any other shots fired after those.
40He remembered Shamar was another of his friends who was shot from looking at his statements but he does not have any specific recollection off the top of his head except from seeing that. He had more than one person with him. He did not remember anybody involved in the altercation. He told the officer he did not recall who came back from McDonald's to the Ribfest because he was trying to forget that night.
41The person who had the gun, who he thought was shooting in the air, this person was wearing the colour grey. He remembers him walking across the street and he had, what Mr. Hamedi believed was a gun in his hand. He only perceived this person had the gun when he was behind the car.
42Mr. Hamedi had no recollection of his state of mind when he gave his first statement. He was tired when he gave the second statement at his home when the police arrived at 11 in the morning. Mr. Hamedi does not drink or smoke weed.
43The Crown in re-examination asked Mr. Hamedi is he was able to indicate what things he said in his statements were inaccurate and he testified he could not point to anything. He testified already he was trying to be as accurate as possible.
44These are the facts disclosed by Zachery Hamedi in his evidence provided during his testimony.
(b) Facts disclosed in Zachery Hamedi's Police Statements
45The first police statement is dated June 3, 2018 but there is no time indicated in the transcript. At the beginning of the audio and video-recorded statement, Mr. Hamedi was advised and cautioned about lying to the police that it is a criminal offence to intentionally provide false information to the police. Mr. Hamedi said he understood this. Mr. Hamedi was also told the door to the interview room was not locked and if he wanted to stop the interview or leave at any point he could.
46Mr. Hamedi told D.C. Butt he was at the police station because his father's car, the Toyota Prius had been seized by the police. Mr. Hamedi told the police he was with a couple of his friends at the Ribfest. He parked his car around 8 or 9, roughly as he did not remember the time. They went inside. As they were leaving there was a ruckus going on outside. All he remembered was seeing a man with a gun in his hand and he saw smoke. At first he thought this man shot in the air to signify he had a gun, so run, but then two of his friends were shot – one in the leg and the other in the hamstring. Then he called 911. He thought he called at 11:08 because he had that on his phone. His friends were Vaughan Roberts and Shamar, he thought his last name was John. It happened in the front by the entrance.
47He saw the man with the gun "not too near his car." He was by Mr. Hamedi's car. Khalil was also with them at the Ribfest. He is Shamar's cousin. He saw a van in the roundabout and there were people in it. It was there the same time the shooting happened. He did not think those people were involved as the people in the shooting was a different group. He saw a bunch of people he didn't know. There was a black male. Mr. Hamedi heard yelling – an altercation between two groups and then he saw the man walk across the road, he did not know if the man was wearing a mask. He heard a gunshot, at first he thought it was a shot in the air but then he realized he was shooting towards the roundabout. Mr. Hamedi ran and heard his friend say he got shot. He ran and when he came Vaughan was on the ground. He got shot in the thigh. Shamar had two shots in his calf.
48He did not know the people arguing. It wasn't with the people in the van. It is all a blur to him. He saw the man walk across the street. He heard the gunshot, thought he fired in the air. He could not see man head to toe because he was behind a car. He thought the man was wearing a mask. Before he observed this man he saw eight or nine people go across the street.
49Mr. Hamedi told police at some point he and his friends went McDonald's and then came back and parked closer to the Ribfest entrance. He said he was not involved in the altercation outside Ribfest and he did not know any of the people involved. He did not know who the shooter was. He heard four or five gunshots. He believed it to be gunshots because he saw smoke and he thought he saw a circle part of the gun. He did not hear what the argument was about. When he heard the gunshot he thought the guy who had the gun was shooting up in the air to tell the people he was having the altercation with he had a gun. These guys were older, probably in their 20s.
50D.C. Butt asked him who else had access to his car and he said he was the only one with keys. He told the police he had gone into the mall to get some candy by himself. He was asked about a black balaclava found in his car and he said it was his and he bought it from Dollarama.
51Mr. Hamedi then indicated he did not go to the mall the night they went to the Ribfest. He went to Dollarama the day before to buy candy. He had lent his keys to Vaughan as he wanted to get his sweater from the car. He went to McDonalds's with Vaughan, Jonah and Shamar.
52On June 24, 2018, D.C. Butt and D.C. Conforti attended Mr. Hamedi's residence and interviewed him a second time and audio recorded the statement. This statement commenced at 12:04 p.m. Mr. Hamedi was cautioned again and told it was a criminal offence to lie or intentionally provide false information to the police, which he acknowledged he understood.
53He was asked to tell the police what happened on June 2, 2018, the events leading up to and including the shooting. They went to Ribfest, went inside and then left around ten-something to go to McDonald's. Then they came back, Mr. Hamedi parked his car and when they got by the entrance there was a lot of shouting and yelling. Then the shooting happened. He wasn't really involved in the group that was arguing. He went with Vaughan, Khalil and Shamar. When they went to McDonald's he was with Vaughan, Shamar, Jonah and Jaylyn. Then they went back to Ribfest and he parked where his car was found after the shooting. Everybody got out of the car except him and Shamar, who came with him when he parked in the parking.
54Mr. Hamedi denied receiving a call while they were at McDonald's in relation to trouble at Ribfest. He said they left in a hurry because it was ending soon. He and Shamar dropped off most of their friends on Glenanna, then parked and went to Ribfest where they met up with everyone. There was a big problem when they came back outside of Ribfest but he wasn't involved in the problem and then the shooting happened. He just saw a bunch of people arguing, just yelling. Then he saw someone go to the other side of the road and then there was the shooting.
55He initially thought the guy was in a mask and he thought he was wearing grey. The group arguing were older. The guy with glasses, he's the one who started the fight, big lips and glasses. They were not Mr. Hamedi's group's age. He did not know the guy they were trying to fight with. He knew he was friend's with his friends. He did not see a vehicle those guys got into but they must have because they were gone so fast. He did not see Shamar get hit but he did see Vaughan get hit. He saw Vaughan fall to the floor.
56He agreed he said in his initial statement the guy he saw with a gun with smoke coming out was dressed in grey and had a mask on. He was in the parking lot when he saw him with the gun and he was a few cars down from his car. More towards Kingston Road. He was in the parking lot between cars. Mr. Hamedi did not see him get in a car. He just saw him shoot and then he ran.
57There were eight to five in the group the guy with the gun was with. The guy with the glasses was the main instigator. He was yelling at a light-skinned male – maybe 17. They were older – like 20-something. He had never seem them before. Mr. Hamedi drove a couple of his friend's friends so maybe he drove this person to McDonald's, he didn't know. When Mr. Hamedi was told the police had the surveillance video he said this guy was with them at McDonald's but he didn't know him.
58The police then tell Mr. Hamedi this was the time for him to tell them the truth. He told them he was telling them the truth. Mr. Hamedi says he is a good kid. They asked if there was anything he'd like to add and he tells them he heard nickname – Bigs but he did not know him. He heard, "Yo Bigs," but that was all he heard. The guy with glasses said "Yo Bigs." He has no idea who the guy in the grey sweater is. He remembered he had a side bag on – a pouch, dark grey. He was wearing a T-shirt hoodie, for sure grey but he wasn't yelling, he's the one that did the shooting. The altercation was happening down by Glenanna Road and he was standing up in the roundabout. Vaughan was close to him but he doesn't remember. Shamar was by himself in the area. He did not know the other two guys that were shot.
(c) Analysis of Admissibility of Zachery Hamedi's police statements (June 3, 2018 and June 24, 2018) as Past Recollection Recorded
59The Crown seeks to introduce Mr. Hamedi's police statements under the past recollection recorded exception to the hearsay rule or in the alternative under the principled exception to the hearsay rule. In R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 at para. 42, hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. A court faced with hearsay evidence should first consider whether the evidence falls under one of the traditional exceptions to the hearsay rule. If it does not, the court should then consider whether the evidence should still be admitted under the principled approach due to the existence of indicia of necessity and reliability. (See also R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 S.C.R. 358 at para. 15).
60In R. v. Richardson, 2003 CanLII 3896 (ON CA), [2003] O.J. No. 3215, at para. 24, the Ontario Court of Appeal held past recollection recorded is a well-established exception to the hearsay rule and set out the essential conditions for admissibility:
1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.
61In a recent Ontario Court of Appeal decision, R. v. Louangrath, [2016] O.J. No. 3736, reaffirmed the four essential conditions set out by O'Connor A.C.J.O. in Richardson. The Court in Louangrath went on to explain how these conditions satisfy the principled exception to the hearsay rule respecting "threshold reliability and necessity:
44 Three of these conditions are grounded in establishing threshold reliability -- namely, the 'reliable record', 'timeliness', and 'present voucher as to accuracy' conditions -- while the 'absence of memory' condition addresses the necessity of using the hearsay evidence. Significantly, for the admission of this type of hearsay evidence, the declarant is able to be tested under oath through cross-examination about the circumstances under which the recorded statement was made, and on the basis upon which he or she vouches that the recording of events is accurate.
45 Though not equivalent to contemporaneous cross-examination of present recollections, meeting those conditions, together with the declarant's ability to testify about them, assuage the hearsay reliability concerns such that, when necessary, this evidence should be admitted. The trial judge should then instruct the jury that this is a lower form of evidence that calls for extra scrutiny.
62The Crown submitted the four essentials conditions for admission of Mr. Hamedi's police statements on the basis of past recollection recorded have been satisfied on the evidence led. Ms. Fry submitted because Mr. Hamedi memory was refreshed in some respects by his review of portions of his police statements the Crown has not met the third conditions set out in Richardson. I do not agree with Ms. Fry's characterization of this condition. Although Mr. Hamedi's memory was refreshed with respect to certain details from his police statements, he was quite definite and firm in his position that he had no memory of other specific details that he had provided in his police statements. It was his position in his evidence in-chief and in cross-examination that he had no memory of certain details he had disclosed to the police because of the passage of time. In fact, in Richardson, at para. 30, O'Connor A.C.J.O., cited with approval, "Wigmore, at para. 734, which sets out that the past recollection recorded exception can be used where the witness either has no present recollection, or has an "imperfect present recollection." Wigmore also went on to warn at para. 755 that courts should avoid deploying these rules "as inflexible dogmas".
63Mr. Hamedi had an imperfect present recollection of the events he described in his police statements. He was able to recall the person he believed to be the shooter (as a result of the smoke surrounding him) was wearing grey and had walked across the street to the other side of Glenanna Road before hearing what he described as fireworks and later referred to as gunshots. In cross-examination he remembered a further detail that in the smoke around the person wearing grey he saw a hole where the bullet came out. Mr. Hamedi testified he knew this person had a gun but he did not know what kind of gun it was. He did not recall who he was with, or how many gunshots he heard, or how many people were involved in the argument he heard or what it was about. He did not recall that he had described the grey article of clothing in his statement to be a grey hoodie T-shirt or that this person was carrying a side bag – pouch, dark grey in colour.
64Mr. Hamedi testified to a number of the facts contained in his two statements, from his memory alone and with his memory refreshed when the Crown referred him to specific portions of his statements for him to review. However, there were a number of the specific details he provided to the police during his two statements, which he maintained he could not remember because of the passage of time.
65Mr. Hamedi's first police statement was audio and video-taped at the police station. His second interview was audio recorded. No issues were raised by the defence respecting the accuracy of the transcripts. He was cautioned about lying or providing false information to the police and the fact this could result in criminal charges, prior to his being interviewed on both occasions. Mr. Hamedi was advised in the video-taped statement that the door was not locked and he was free to leave whenever he wanted to. On June 24, 2018, Mr. Hamedi invited the police into his home and agreed to be interviewed on tape. There is no issue as to the reliability of the record.
66The next condition refers to the timeliness of the statements. In Richardson, at para. 27, the Court of Appeal held: "The timeliness requirement does not call for strict contemporaneity. It is sufficient if the record is prepared close enough to the events to ensure accuracy." The first statement was taken on June 3, 2018, within hours of the shooting. There is nothing in this statement to suggest that Mr. Hamedi's ability to recall events accurately was affected in any way. The second statement was only taken 22 days after the shooting occurred and it is my view the passage of time was not significant enough to affect Mr. Hamedi's recall. In fact, in comparing Mr. Hamedi's two statements, the details he provided in the second statement corresponded with what he had already told the police on June 3 and he expanded upon those details. In my view this demonstrated that the events were still vivid and fresh in Mr. Hamedi's mind and the condition of timeliness was therefore satisfied.
67Further, in listening to the audio recording it was clear his answers were spontaneous, not evasive and there were no extended periods of silence where it appeared Mr. Hamedi was trying to make up an answer or did not to know the answer to the questions asked by the police. Further, the officer was not asking him leading questions, rather, she was asking non-leading questions and the answers provided by Mr. Hamedi were clearly responsive. His description of the events leading up to the shooting was, as I will discuss in greater detail when I discuss Shamar John's police statements, generally consistent with the events as described by other independent witnesses. Finally, Mr. Hamedi did not recant or resile from anything he said in either of his police statements.
68The final condition is whether the witness can say when they made the statement they were at least "attempting to be honest and truthful" (see R. v. McBride, 1999 CanLII 2317 (ON CA), [1999] O.J. No. 826 (C.A.), at para. 9). Mr. Hamedi testified when he was providing his statements to the police he knew he was being interviewed by two detectives. He was cautioned about the fact if he lied or intentionally provided false information to the police he could be charged with a criminal offence. He testified he understood the importance of telling the police the truth and he was trying to be as truthful as possible with them. When he was describing things that went on around him he was trying to be as accurate as he could be. When it was suggested to him in cross-examination he might be mistaken about some of the things he told the police he said, "[I] don't think so." He further testified that he certainly was not intending to mislead the police if there were details he provided that were incorrect. Mr. Hamedi in re-examination testified he could not point to any information in his police statements that was incorrect. I do not agree with Ms. Fry's submissions (at paragraph 17, Defence Written Submissions) respecting what she described as inconsistencies between Mr. Hamedi's statements and his evidence. She referred to Mr. Hamedi's first statement where he told police he did not see a gun, yet in his first statement Mr. Hamedi clearly told D.C. Butt and D.C. Conforti that he saw a man with a gun in his hand and he saw smoke around this man (page 5 and 7 of June 3, 2018 statement). In his evidence in cross-examination he testified when he said he did not see a gun at a later point in his statement he meant he could not see what kind of gun it was, whether it was small or big. The issue I must determine is whether Mr. Hamedi, at the time he made his statements to the police, was being truthful and trying to be accurate (see Richardson, at para. 22 and McBride, at para. 9).
69In my view the evidence disclosed that the four essential conditions for the admissibility of Mr. Hamedi's two police statements under past recollection recorded have been satisfied, however, there is a further premise (see R. v. Richardson, at para. 29; R. v. McCaroll, 2008 ONCA 715 (CanLII), [2008] O.J. No. 4048 (C.A.), at paras. 53-54 and R. v. Chretien, [2009] O.J. No. 810 (Aitkin J., SCJ), at para. 17) that underlies the past recollection recorded exception to the hearsay rule, namely, the trial judge must accept the witness' memory loss as being genuine and make a finding of fact to this effect. It is my view based on Mr. Hamedi's testimony that his present recollection on several areas contained in his original police statements was refreshed by his reviewing it, his memory loss as to other details was genuine.
70Consequently, Mr. Hamedi's police statements (June 3, 2018 and June 24, 2018) will be admitted as evidence of the truth of their contents in this preliminary inquiry.
71I will address whether Zachery Hamedi's two police statements also meet the two criteria under the principled exception to the hearsay rule when I address this issue in relation to Shamar John's police statements.
Analysis of the Hand-written Police Statement of Vaughan Roberts (June 3, 2018 at 12:45 a.m.) and whether they should be admitted for the truth of their contents through Past Recollection Recorded exception to the Hearsay Rule or the Principled Exception to the Hearsay Rule
(a) Vaughan Roberts' evidence at the preliminary inquiry
72Vaughan Roberts testified at the preliminary inquiry and said he was at the Pickering Ribfest and ended up in the hospital. He did not recall anything that happened respecting the events leading up to and after he was shot and was taken to the hospital. He repeatedly said, "It was a long time ago." He identified his signature as being on the bottom of each page of a two-page handwritten police statement, which was obtained by P.C. Moulton at Sunnybrook Hospital on June 3, 2018, commencing at 12:45 a.m. He remembered the hand-written statement he was shown and said he was interviewed at the hospital. He remembered the police officer asking him questions and writing everything down. He knew he was shot in his left leg.
73When he was shown this statement it did not refresh his memory concerning the events surrounding the shooting. He also recalled speaking to a police officer at the hospital, but he could not remember what he told her. When he was asked whether he was trying to be difficult to the police and lie to them, he replied, "I don't remember but why would I lie? What was I lying about? The Crown then asked him "wouldn't [he] be trying to be as accurate and truthful as possible with them just after the incident happened" and he replied, "Yeah, I guess so." When he was asked if the statement was read back to him by the officer he testified he was "pretty sure they read it out to me when they finished asking questions."
74In cross-examination he testified an IV was put in his hand but he did not know if he was given any pain medication at the hospital. He testified he was provided with a prescription for pain medication. He agreed with defence counsel that he had smoked some marihuana that night but did not remember how much, it was a whole year ago. When he was asked if it interfered with his perception of the events that evening he was emphatic in his answer, "No." He did not recall who wrote out the statement. When he was asked whether or not he made any effort to tell the truth to the officer, Mr. Roberts said, "What do I need to lie about?" and I don't think I was lying because what do I need to lie about?"
75P.C. Moulton testified she was working a pay duty at the Pickering Ribfest when the shooting occurred. She ran to the entrance by the library/Town Hall when she heard reports of a shooting and as she ran to the entrance she heard shots fired. She observed a male on the ground injured with an officer trying to assist him and she then heard another person screaming for help. She found this person on the other side of some bushes closer to the roadway. She applied pressure to the gunshot wound in his leg with a pair of jeans. The person identified himself as Vaughan Roberts. P.C. Moulton was tasked with riding with Mr. Roberts to Sunnybrook Hospital in the ambulance. They left at 11:25 p.m. in the ambulance, arriving at Sunnybrook at 11:41 p.m. They brought Mr. Roberts to the emergency and when Mr. Roberts was brought for x-rays there was another man, Andrew Joseph in that same area who had also been shot but she did not speak to him. Mr. Roberts was calm, conscious, alert, cooperative and responded appropriately to the medical staff and herself in conversation throughout her involvement with him. He did not have any difficulty understanding her questions or providing answers. He did not appear to be under the influence of anything so that he did not understand what was happening.
76She obtained a written statement from Mr. Roberts as to his description of the events leading up to the shooting and afterwards. She did not have a recording device to record his statement. P.C. Moulton was in full uniform as a police officer. The statement was started at 12:45 a.m. on June 3, 2018. She wrote what Mr. Roberts told her verbatim as he seemed to be still in a little discomfort and penmanship might have been an issue. She told Mr. Roberts she would be writing down exactly what he said to her verbatim. Initially he described what happened and then she asked him 11 questions and he provided 11 answers, which she recorded verbatim. When the statement was concluded P.C. Moulton testified she read it back to Mr. Roberts and he appeared to be listening to her as she did. P.C. Moulton observed Mr. Roberts sign the bottom of each page of the hand-written statement and she identified Mr. Roberts signature at the bottom of each page. The statement is exactly what Mr. Roberts said. P.C. Moulton then explained the release forms for his medical records to be provided to the police and he agreed to sign those as well. Mr. Roberts provided his personal information, telephone numbers and address, which is on a third page that is between the two pages of the hand-written statement. Throughout her interaction with Mr. Roberts P.C. Moulton testified she did not have any concerns about medication or any intoxicating substances interfering with his ability to understand and respond appropriately to the questions she asked. He was co-operative with her in the hospital.
77In cross-examination P.C. Moulton said she told Mr. Roberts the statement was for court purposes. She told him she needed to know what actually happened. P.C. Moulton agreed the statement was not taken under oath. She did not tell him to tell the truth but she did tell him the consequences of lying and that it was important for him to provide accurate information. She did not put that in her notes.
78When Ms. Fry suggested to P.C. Moulton she knew the purpose of the hearing was whether or not his [Mr. Roberts] statement goes into evidence, P.C. Moulton testified, "No, I didn't know what the…" and then she was cut off by Ms. Fry. Later in cross-examination when P.C. Moulton was asked to say exactly what she told Mr. Roberts prior to taking the statement, she said, "It would just be verbatim, what I would tell any victim who is providing a statement, that it's important that they, they tell me the accurate recollection of the events, that they, that this is for court purposes, that's why I'm taking the statement….that they make sure that they're not providing a false statement because they could be charged with, with mischief, public mischief." P.C. Moulton testified if there "was anything that suggested – if it was anything that told [her] that he didn't understand what [she] was asking and was not willing to tell the truth, then [she] wouldn't have proceeded with the statement."
79In re-examination P.C. Moulton testified she never had any concerns Mr. Roberts was not doing what she had cautioned him about.
(b) The facts disclosed in Mr. Roberts hand-written police statement
80Mr. Roberts told P.C. Moulton he saw an argument and saw his friends were involved in the argument so he went over and then he heard shots. He felt himself get shot and he called out to his friends, "Yo, I got shot." He saw his friend Shamar John also got shot. He did not know who fired the gun. He did not know the intended target. As soon as the shots rang he ran, got shot and ran into the bushes.
81He was asked if he could describe the suspects or the group and he said, "looked like grown men, the one who had a gun was wearing grey hoodie." When he was asked how many times this man fired the gun, Mr. Roberts said, "pop, pop, pop, pop and then 3 more. He was not sure what the gun looked like. He was asked who he was at the Ribfest with and he said Jonah John (Shamar's cousin), Zach (couldn't remember last name) dropped Vaughan off at Ribfest and the others were acquaintances and he didn't know their names.
(c) Analysis of Admissibility of Vaughan Roberts' police hand-written statement (June 3, 2018) as Past Recollection Recorded
82The Crown submitted all four of the essential conditions referred to in Richardson respecting past recollection recorded have been established by the evidence. P.C. Moulton testified the two page hand-written statement was written by her verbatim. She read it back to Mr. Roberts and he signed each page. P.C. Moulton testified the statement accurately reflected what Vaughan Roberts told her. Mr. Roberts testified he thought P.C. Moulton read the statement back to her before he signed I and he acknowledged the signatures at the bottom of each page was his signature. In my view I have no reason to doubt P.C. Moulton's evidence that she wrote verbatim what was said to her by Mr. Roberts.
83Mr. Roberts provided his statement within two hours of being shot and I find it was provided in a reasonable period of time and was timely. Mr. Roberts was very clear throughout his testimony that he had no memory of anything that occurred leading up to and including his being shot. He also testified he did not recall what he told the P.C. Moulton in his statement and therefore did not have a present recollection of this incident.
84Finally the fourth condition is whether Mr. Roberts' evidence supports he was trying to be truthful and accurate when he spoke to P.C. Moulton at Sunnybrook. Ms. Fry argued Mr. Roberts was under the influence of pain medication and marihuana, however, Mr. Roberts did not know whether he had been provided pain medication at the hospital. His hospital records were obtained by the police based on the evidence provided by P.C. Moulton that Mr. Roberts signed a consent form. The hospital records were not presented during the preliminary hearing. In my view it would be speculation to find Mr. Roberts' ability to understand the questions he was asked by P.C. Moulton, particularly when the answers in my view were all responsive to the questions asked. Further, P.C. Moulton testified Mr. Roberts was not under the influence of any medication or illegal substance from her observations.
85Mr. Roberts was unable to say what he told P.C. Moulton was accurate because he could not remember the events of the shooting. He did clearly indicate both in-chief and in cross that he had no reason to lie to the police. There is certainly no evidence to support he had any motive to lie to the police.
86In my view, on the totality of the evidence on this issue the Crown has satisfied the four conditions set out in R. v. Richardson, supra.
87A more problematic issue is whether Vaughan Roberts' memory loss was genuine or whether he chose not to remember what occurred for his own personal reasons. When the police attended Mr. Roberts home to obtain further details of the events leading up to and including the shooting on June 2, 2018, he would not agree to allow them to come into his home and refused to be interviewed further. It is my view based on the totality of the evidence surrounding Mr. Roberts testimony claiming, in effect, total memory loss of the significant events, which led to his being shot in the leg, I am not satisfied his stated memory loss is genuine. As a result the Crown's application to introduce Vaughan Roberts' hand-written police statement as past recollection recorded is dismissed.
88Mr. Roberts could not explain why he was unable to recall any of the details surrounding the events leading up to his being shot. I would have to speculate to attempt, on his evidence, to determine the reason why he professes not to remember what happened on June 2, 2018, particularly when the events resulted in his being shot by someone with a gun.
89However, this does not end the matter. I will address whether the principled exception to the hearsay rule is met respecting Vaughan Roberts police statement when I deal with Shamar John's police statements and Zachery Hamedi's police statements.
Analysis of the Admissibility of the Snapchat video, the police statements of Shamar John, the police statements of Vaughan Roberts and Zachary Hamedi
90As indicated above, the test for committal at a preliminary inquiry is not the issue to be determined in this case, rather, the issue is the admissibility of certain pieces of evidence. It was agreed by both parties that if the Snapchat video was admitted and the three police statements of Shamar John were admitted pursuant to R. v. Khelawon, [2006] S.C.J. No. 57 (for the truth of their contents) and the police statements of Zachary Hamedi and Vaughan Roberts were admitted as past recollection recorded then there would be sufficient evidence of the identification of Mr. Francis-Simms as a party to the Ribfest shooting and committal would follow on all charges. On the other hand, if the police statements of Shamar John and the Snapchat video were not admitted then the Crown conceded there was insufficient evidence pursuant to the R. v. Sheppard test and a discharge would follow.
The Snapchat Video's Admissibility
91The Snapchat video was first viewed by Stephanie Fountain when she was at the Hospital for Sick Children in Toronto, where her son, Shamar John, had been taken after he was shot twice in his left leg at the entrance of the Pickering Ribfest. The day after the shooting on June 3, 2018, Ms. Fountain was at the hospital and she was speaking to some of Shamar's friends who were also there in the hallway. She was upset, yelling at them to tell her who was responsible for her son being shot. Ms. Fountain was provided one of the boy's cell phones, which had a Snapchat video on it. She did not recall whose phone it was. They told her the individuals in the video were who they had issues with and one of the persons in the video was the one that shot Shamar. Ms. Fountain testified she used her phone to record the Snapchat video that was on this friend's cell phone.
92Ms. Fountain testified she was familiar with Snapchat as she has the Snapchat app on her cell phone and has a Snapchat account. A person would register an account the same way they would for Facebook and Instagram social media platforms. Ms. Fountain described how on Snapchat there is a blank screen and one can press the middle circle on the screen, hold it down and this will record. If the recorded video was sent to someone on your friends list they would see your user name on the top or bottom of the video. Ms. Fountain was shown the Snapchat video, Exhibit A she had recorded with her cell phone. The user name on this Snapchat video is "Rico Flipmode." Underneath "Rico Flipmode" was the phrase "one hour ago." Ms. Fountain testified this meant the video was recorded an hour before it was sent. There is a little cartoon figure, called a "bitmoji", beside the "R" in Rico. At the top left corner of the screen are lines that one can click on and this would show the videos or pictures this person has taken that day. There was some further words beside the user name, "Don't Get Robbed Kid." When the video was replayed by the Crown, for Ms. Fountain, she pointed to the person in the grey hoodie at 00.08 seconds in, as being the person her son pointed to when she showed it to him in the hospital.
93Ms. Fountain explained why the first image on the video showed a screen, with a keyboard at the bottom and then the video started playing immediately. This was because she used her phone to record the Snapchat video and she had to press record on her phone before starting the video. The person whose phone she recorded the Snapchat video from onto her cell phone from had to be a friend of "Rico Flipmode" on Snapchat. She saw this person open up this Snapchat message on their phone, which she then recorded on her phone. Ms. Fountain also testified once a video is recorded with Snapchat it only stays on your storyline for 24 hours.
94When she was at the hospital she wanted to find out what had happened to her son and how he was shot so she spoke to his friends who were there in the waiting room. She was upset and one of the boys opened up this Snapchat and showed her this video that she recorded onto to her phone.
95Ms. Fountain testified she was with Shamar at his house when the police came to interview him on June 7, 2018. The police recorded the interview on an audio recorder that they put on the table. When the interview was completed Ms. Fountain told D.C. Butt she had a Snapchat video on her phone and told her what was on it. The audio recorder was turned back on by the police and they asked questions about the Snapchat video. This was when Shamar pointed out the person in the grey hoodie on the Snapchat video.
96In cross-examination Ms. Fountain testified she provided a video statement herself with the police on October 23, 2018. She agreed in that interview she told the police the Snapchat video was sent to her son's phone and she used his phone to send it to her phone. She agreed her statement in October 2018 was closer to the shooting than when she was testifying in court and her memory would have been better but she could not recall what she told the officer she did.
97The Crown submitted the Snapchat video, which Ms. Fountain either recorded with her phone or was initially sent to Shamar John's phone and then sent it to her phone, by one of Shamar John's friends who was present at Sunnybrook Hospital where Shamar was being treated, was simply a piece of evidence, a video of a male person, from which Mr. John previously identified the male in a grey hoodie as the person he believed had a gun shortly before the shooting occurred. The Crown pointed to the evidence of Donahue Morgan, the defendant's brother, who identified this male person as being his brother, Ahyjah Francis-Simms. Mr. Murray submitted there was no requirement or need to prove the authenticity of the Snapchat video, as being a video taken during the course of the 2018 Ribfest. He argued this video was no different from a photograph contained in a high school yearbook, which the police showed to a witness, who then identified a photograph as being the person who committed the offence.
98The Snapchat video alone was not tendered by the Crown to prove the person in the grey hoodie/track suit was a party to the shooting at the Ribfest. The evidence from Ms. Fountain that she observed her son point out the person in the grey track suit and D.C. Butt's evidence that she observed Shamar John point out the person in the grey track suit was hearsay evidence, which would be inadmissible unless Mr. John testified he had pointed out the male person in the grey track suit to his mother and the police, which he testified he could not remember doing, or unless Shamar John's' police statements were admitted under the principled approach, if the indicia of reliability and necessity were established. Consequently, if the police statements of Shamar John are admitted for the truth of their contents, pursuant to Khelawon, the Crown submitted Mr. John's' police statements, together with the evidence of Ms. Fountain and D.C. Butt, demonstrated who Mr. John identified as the person he believed possessed a gun on June 2, 2018, at the time of the shooting. This evidence would then be considered with the whole of the evidence called during the preliminary inquiry and would satisfy the Sheppard test for committal.
99The Crown, as I understand his argument, submitted that Ms. Fountain's and D.C. Butt's evidence was only offered to identify the male in grey in the Snapchat video as the person previously identified by Shamar John. Utilizing this evidence for that purpose did not offend the hearsay rule as it was not offered as independent evidence of identification. This evidence, according to Mr. Murray, was tendered only to prove Mr. John had identified and pointed to that male person in the video. Mr. Morgan's evidence was offered to prove that it was Mr. Francis-Simms in the video wearing a grey sweater. A precondition to substantively utilize Shamar John's prior identification of the male person wearing grey in the Snapchat video was that Mr. John's police statements be entered into evidence for the truth of their contents pursuant to Khelawon. The Crown argued in those statements Mr. John identified the male person in the grey hoodie from the Snapchat video as the person he saw and believed to be in possession of a gun given that person's actions and what he observed and described.
100It was in this context that the Crown referred to the Ontario Court of Appeal in R. v. Tat, [1997] O.J. No. (C.A.) respecting the "prior-identification exception to the hearsay rule." In R. v. Tat, a witness had provided a statement in which he identified an individual (Long) from two photos as one of the shooters. At trial the witness did not adopt the prior statement to the police, was declared an adverse witness and maintained that the two accused Long and Tat were not the persons who shot him and his friends. He also testified that shortly after identifying Long he advised the police he was wrong. The Crown called the police officer who took the statement from the witness where he identified Long and argued that this evidence was admissible as an exception o the hearsay rule. The trial judge told the jury that the police officer's evidence that the witness had previously identified Long was admissible to prove Long was one of the shooters. The Ontario Court of Appeal in R. v. Tat, at para. 35, held:
35 My review of the Canadian case law reveals two situations in which out-of-court statements of identification may be admitted. Firstly, prior statements identifying or describing the accused are admissible where the identifying witness identifies the accused at trial. The identifying witness can testify to prior descriptions given and prior identifications made. Others who heard the description and saw the identification may also be allowed to testify to the descriptions given and the identifications made by the identifying witness (citations omitted).
101The Court held where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness do not have a hearsay purpose. This evidence is admissible as part of the entirety of the identification process that the trier of fact must assess before deciding what weight should be given to the identifying witness' testimony (at para. 39). In our case Shamar John did not point out anyone when he testified as being involved in the shooting, rather, he testified he did not recall his statements to the police and he did not recall pointing out anyone in a Snapchat video and therefore he did not identify Mr. Francis-Simms as the individual he pointed out previously. In fact, Shamar John did not recall anything concerning the incident.
102The second situation that Justice Doherty referred to in R. v. Tat, "arises where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did" (at para. 41).
103As a result, Mr. Murray submitted it was a precondition to the court substantively using Mr. John's prior identification of Mr. Francis-Simms in the Snapchat video if his prior police statements were admitted for the truth of their contents pursuant to Khelawon. Ms. Fry in her written submissions argued that the evidence of Ms. Fountain and D.C. Butt respecting their observations of who Shamar John pointed out in the Snapchat video was inadmissible because Mr. John's audio recorded statements could not be tested through cross-examination because Mr. John did not remember anything concerning the incident. As I indicated above, it is my understanding the Crown is conceding the only way the evidence of Ms. Fountain and D.C. Butt becomes relevant and admissible as a "prior-identification exception to the hearsay rule" as discussed in R. v. Tat, is if the Crown is successful in his submission that Shamar John's police statements should be admitted pursuant to the principled approach in Khelawon, for the truth of their contents. I will deal with this submission later in these reasons.
104Mr. Murray further argued if there was a need to authenticate the Snapchat video, as submitted by Ms. Fry, the common law only required some evidence to support the conclusion that the thing tendered was actually what it purported to be. Section 31.1 of the Canada Evidence Act legislated the same "low threshold" standard for authentication of electronic documents. As discussed in Gerald Chan and Justice Susan Magotiaux's book, "Digital Evidence: A Practitioner's Guide, Emond Montgomery Publications Limited (Toronto, 2018), "This is not a high threshold. If it is met, then the evidence is admissible. This does not mean that there can no longer be a dispute as to whether the presented evidence is in fact what it claims to be. It just means that any remaining dispute goes to the weight of the evidence, which is a determination left for the trier of fact."
105The defence submitted that the Canada Evidence Act provisions dealing with electronic evidence do not stand alone and if the Crown intended to introduce the Snapchat video sent to Ms. Fountain's phone into evidence it was necessary for the Crown to authenticate it. In her written submissions, Ms. Fry submitted "Although the Crown has conceded the Snapchat video cannot be authenticated, it is important to briefly outline the basis for and concerns surround(sic) the requirements of authentication of digital evidence, as this jurisprudence frames the admissibility of video and photographic evidence even if it is adduced for the purposes of identification." Ms. Fry then referred to R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 13, where Justice Cory for the majority, indicated the ultimate aim of a criminal trial is to seek and ascertain the truth, which is undertaken to determine if the accused is guilty beyond a reasonable doubt of the charge he is facing. Evidence must be relevant and admissible and must be logically probative and legally receivable. However, Ms. Fry ignored the question posed by Justice Cory at the outset of his judgment, namely, "Can a videotape alone provide the necessary evidence to enable the trier of fact to identify the accused." This was the question that he held must be resolved by the appeal. Justice Paciocco in his article, "Proof and Progress: Coping with the Law of Evidence in a Technological Age," supra, at page 183 made these comments respecting Nikolovski:
As absurd as it now sounds, for years we debated whether photographs and video-recordings were evidence, trying to treat them as if they were visual aids to assist testimony. We now accept, with good reason, that photographs and video-recordings can be used as "silent witnesses" in preference of testimony. (He cites R. v. Nikolovski as authority for this observation.)
106Ms. Fry does not address in her written submissions why the Snapchat video cannot be authenticated. The Crown, in my view, did not concede the Snapchat video could not be authenticated, rather, it was his position, as discussed above, the Crown did not need to authenticate it given the purpose for which it was introduced into evidence on the preliminary inquiry – solely as a tool to be used for identification purposes. Mr. Murray, later in his written submissions (at paras. 13-15) argued the Snapchat video could be authenticated pursuant to the "low threshold" test in s. 31.1 of the Canada Evidence Act, which requires the party introducing the digital evidence to provide some evidence that the thing is what it purports to be. Of course, as I will discuss further, the Snapchat video and the evidence of Ms. Fountain and D.C. Butt respecting their observations of Shamar John pointing to one of the three individuals in the Snapchat video only becomes relevant and admissible if Shamar John's police statements are found to be admissible for the truth of their contents pursuant to the principles in Khelawon. This is the main issue that must be determined. Unlike Nikolovski, the Snapchat video in this case does not depict the scene of a crime. The Crown did not enter the Snapchat video to show a crime being committed. The Snapchat video only becomes relevant and admissible if Mr. John's police statements are admitted pursuant to Khelawon.
107It is my view the Crown is correct in his submission that his purpose for introducing the Snapchat video was simply as something a witness could and did look at to determine if they recognized anyone on the brief video. In that way it is no different than a witness being shown a photograph from a school year book or surveillance video for the purpose of determining if the witness is able to identify anyone in the photograph or video. It will be for the trier of fact at trial to determine what weight is given to this identification evidence after considering the totality of the evidence dealing with the identification. As I have indicated above the important determination is whether there is any admissible evidence from Mr. John as to who he is identifying. In this case this requires a determination as to whether his police statements should be admitted pursuant to the principled approach.
108In terms of Ms. Fry's submission that the Snapchat video has not been authenticated, it is also my view that the evidence of Ms. Fountain concerning how she recorded the Snapchat video onto her phone from her son's friend's cell phone provided some "evidence capable of supporting a finding that the electronic document is what it is purported to be," per s. 31.1 of the Canada Evidence Act. Ms. Fountain testified she was familiar with the Snapchat app, as she had it on her cell phone, she had a Snapchat account and she used the app to send messages and videos. She also testified she observed her son's friend open his Snapchat app on his phone, found the Snapchat video, Exhibit A, which he showed her and she then either recorded it onto to her phone or sent it to her son's phone and then forwarded it to her phone. Ms. Fountain was also able to identify where the username would be on a Snapchat video and what the lines at the top left corner of the screen did when a person received a video and pushed on the lines. The evidence led during the preliminary hearing was that Ms. Fountain's phone was working properly when she recorded the video and the Snapchat video on her phone was the Snapchat video she saw on her son's friend's cell phone.
109The best evidence rule is applicable to electronic documents as it is set out in s. 31.2 of the Canada Evidence Act:
31.2 (1) The best evidence rule in respect of an electronic document is satisfied
(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored;
Integrity is not defined but clearly refers to the ability of the system (Ms. Fountain's iPhone), to record and store information accurately. Justice Paciocco in his article referred to above indicates the onus is on the party introducing the electronic document to "establish that it is more probable than not that the electronic document system had integrity (at p. 202). This can be done with the aid of the presumptions set out in s. 31.3(a), (b) and (c) of the Canada Evidence Act.
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven
(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;
(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or
(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.
2000, c. 5, s. 56.
110Under s. 31.3(a), if a witness provided evidence that a video was shown on a cell phone using the Snapchat app and they then used their cell phone to record the video they had watched and when they replayed the video they recorded on their phone, it was the same as the original Snapchat video they had watched, this would be circumstantial evidence that the electronic document systems (the two cell phones) were operating properly.
111Another piece of evidence, which bears upon the authenticity of the Snapchat video was from Sierra Oliver who testified at the preliminary inquiry. She knew Shamar John because she grew up with him. She was not at the Ribfest the night of the shooting. She saw Shamar at school after the shooting but did not discuss what happened at the Ribfest with him. She knew a person, Josh Lawrence, whose nickname was "Rico." He is a friend of hers and she has a Snapchat account with him. She received a message from Josh Lawrence on Snapchat saying, "Tell your YBs to know their size and they won't get hurt. Don't be a casualty." Josh Lawrence's Snapchat account is under the name "Rico Flipmode." Ms. Oliver was told to show her YBs, which means "young boys" the message. She told Jayden about the message but did not show it to Shamar. This message was sent on June 12, 2018, Exhibit 4, is a screen shoot of this message. She believed Josh Lawrence was talking about Ribfest in his message from June 12, 2018. In my view Ms. Oliver's evidence further draws a link between "Rico" and "Rico Flipmode," which in turn provides some evidence authenticating the Snapchat video provided to Stephanie Fountain and was then shown to Shamar.
112It is my view the low threshold of authenticity in s. 31.1 of the CEA has been met by the evidence of Stephanie Fountain and as well, the integrity of her cell phone's operation has been established by her evidence. She recorded and copied a Snapchat video from another cell phone with her cell phone. The Snapchat video is very brief and there was no evidence that raised any concerns about tampering or alteration of the Snapchat video. Ms. Fountain's evidence that she used her cell phone to copy a Snapchat video from another cell phone by recording that video, was corroborated by that cell phone's image at the very beginning of Exhibit A before Ms. Fountain pushed the play button. It is my view her cell phone copied this Snapchat video and was working properly. It is my finding that this electronic document satisfies the best evidence rule in ss. 31.2(a) and 31.3(a).
113Further, the purpose for which the Crown sought to introduce the Snapchat video was to prove Shamar John pointed out the male person in the grey hoodie/track suit as someone he observed with what he believed to be a gun. Of course this identification only becomes admissible if Mr. John's police statements are admitted pursuant to Khelawon. The Snapchat video as I indicated above does not depict a crime being committed, rather, the Crown seeks to use it to identify someone who was a party to the shooting on June 2, 2018. The further identification by Donaghue Morgan of the male person wearing a grey hoodie/track suit being his brother, Ahyjah Francis-Simms, goes to provide the identity of the male person identified by Shamar John in his police statements.
Identification of Ahyjah Francis-Simms as being Male Person in grey hoodie/track suit in Snapchat Video by Donaghue Morgan
114Ms. Fry conceded in her written submissions that Donaghue Morgan's identification of his brother, Ahyjah Francis-Simms, was admissible if the Snapchat video and Shamar John's police statements were admitted. I agree with the Crown's statement of the law respecting identification by a non-expert lay person who has a prior acquaintance with the accused and as a result, was in a better position than the trier of fact to identity the perpetrator. In R. v. Berhe, [2012] O.J. No. 5029, at para. 14, the Court of Appeal held:
In R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A. stated succinctly that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator." Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at p. 413, for that proposition, which I would characterize as the "prior acquaintance/better position" test. I would re-affirm that test.
115The Crown set out a number of reasons why Mr. Morgan's identification certainly met threshold admissibility and could also contribute "significantly to determining ultimate reliability of the evidence as to identity." Mr. Murray submitted that Mr. Morgan was able to point to a number of unique identifiable features of Mr. Francis-Simms, which bolstered his identification from the Snapchat video. These issues were discussed in R. v. Berhe, at paras. 21-22:
I do not see this as being inconsistent with the underlying principles of opinion and identification evidence, namely that opinion evidence is generally inadmissible "because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case": R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 71. Nor do I see it as inconsistent with the view that "there must be some basis for the opinion before it can be given any weight": see R. v. Cuming, 2001 CanLII 24118 (ON CA), 158 C.C.C. (3d) 433 (C.A.), at para. 21. Both of these benchmarks are well established. The "prior acquaintance" branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion - or, "an articulated basis," as some have said - and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.
In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:
Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
116Ms. Fry's argument respecting the weight and effect of Mr. Morgan's animus towards Mr. Francis-Simms is a matter for the trier of fact to determine at a trial if Mr. Francis-Simms is committed to stand trial. It should be noted, however, that the Snapchat video is very clear and defined. The face of the male person wearing the grey hoodie/track suit is close-up, very distinct with sharp features and the person's height is obvious as the video shows him in contrast to the other two male persons standing beside him. The Snapchat video was shown on numerous occasions in court during the witnesses' testimony and it was clear to me the individual in the grey hoodie/track suit was Mr. Francis-Simms.
117As I have indicated above, however, the relevance of Mr. Morgan's identification depends upon whether Shamar John's police statements are admissible. The Crown submitted Mr. John's statements are admissible at this preliminary hearing first, on the basis of the principled approach in that, the twin criteria of necessity and threshold reliability have been shown on a balance of probabilities. If admissible under the principled exception to the hearsay rule then the Crown submitted they are also admissible pursuant to s. 540(7) of the Criminal Code as they are credible and trustworthy "as the principled exception employs a higher standard than that section."
Admissibility of Shamar John's Police Statements (June 3, 2018 and June 20, 2018) pursuant to R. v. Khelawon: the principled exception to the hearsay rule
(a) Shamar John's evidence at the preliminary inquiry
118Shamar John recalled very little about the events that occurred at the Ribfest leading up to his being shot. His favourite answer to questions posed to him in-chief or in cross-examination was, "I don't remember." He recalled his friend Zach drove him and some other friends to the Ribfest. He remembered at one point leaving the Ribfest and going to McDonald's. He remembered Zach driving him back to the Ribfest. Despite listening to his statements the morning he testified, he could not recall if he heard his voice on the tape. He did not recall giving statements to the police. He did not recall his mother being present for any interviews he might had with the police. The Crown went through Mr. John's statement and he repeated his answer, "I don't remember." He remembered his friend Jonah helped him after he was shot. He did not remember what he did. He has a friend named Jayden Wignall but he did not remember if he was there at the Ribfest.
119When the tape recording of his statements were played in court for Mr. John he agreed it was his voice. Even after to listening to numerous portions of his statements Mr. John maintained he did not remember anything in his statements. He admitted he knew he was talking to police officers. After watching the Snapchat video he said he could not remember watching that same video when he was with the police officers. He did not remember identifying the person in the grey sweater or hoodie. He did not remember if he was lying to the police when he spoke to them. He testified after the shooting he did not care where the police investigation went. He only cared about being safe. All he wanted to do after he was shot was to carry on with his life. He finally admitted and agreed his mother was present for all three of the statements he gave to the police.
120He cross-examination he again repeatedly answered Ms. Fry's questions with, "I don't know." At one point Mr. John testified he had never seen or met individuals by the name of Rico, Biggz or Sooky. He said he had no recognition of the three persons on the video. He then said he would have no idea of the reliability of any information he received. He said he never saw them in his life. In re-examination he was asked if he saw the video for the first time in court and he said he probably saw the video before, he just doesn't remember. When he told Ms. Fry he'd never seen them in his life he was saying he did not remember seeing them before.
(b) Facts disclosed in Shamar John's Police Statements
121Shamar John's first police statement was taken at his home, with his mother, Stephanie Fountain present, together with D.C. Lindsay Butt and her partner, D.C. Dave Conforti on June 7, 2018. The statement was taken a day after Mr. John was released from the Hospital for Sick Children in Toronto and was audio-recorded. D.C. Butt advised Mr. John at the outset that the police were there to take his statement of the events leading up to and including his being shot at the Ribfest in Pickering on June 2, 2018. D.C. Butt advised she wanted Mr. John to start from the beginning and tell her in as much detail as possible what occurred. She did not want him to guess for anything.
122Mr. John advised he and some friends arrived at the Ribfest around 8 or 9 p.m. Around 10 p.m. they were leaving to go to their car and there was a group of guys standing around and he heard a big argument going on with these guys and then people were saying watch out, watch out, which led to gunshots being fired and "a guy" who he did not know, started shooting and he hit Shamar, one of his friends and two other civilians. He did not know who they were. Shamar ran and got closer to the Ribfest gates and fell and then he was looked after by paramedic or a police officer. The gun sounded like a pop sound. He did not see a gun. He did not see the person who he believed to be the shooter. He just saw some tall guys and some short guys. He never looked at them in the face or was really watching what they was wearing. He just saw a whole bunch of guys arguing in a group.
123Zach was there and Vaughan, who got shot, and his cousin, Jonah, from upstairs. He later said his cousin Khalil was also there. There were other friends there as well. Zach drove. The car was parked in the parking lot of the Pickering Town Centre in a spot close to the Ribfest entrance by the library. When he was shot he was on the sidewalk closest to library and Town Hall. The group of guys arguing were in front of him moving onto the road. He said none of his friends were involved in the argument.
124After he was shot he heard three or four more shots. Vaughan was shot before him on the other side of a bush, which from the photographs was at the bottom on the semi-circle driveway into the library/Town Hall, just before the sidewalk and Glenanna Road, which runs in front of the library/Town Hall. Shamar described a van parked in the circle and Vaughan was by this van and the bush. He believed the shots were fired over the argument. He thought the people in this group were 18 or 19.
125He remembered they had gone to McDonald's earlier that night and then went back to the Ribfest. A number of those in Zach's car got out to go into Ribfest before Zach parked the car with Shamar. He had crossed the street to go back to Ribfest and when they were standing by the entrance that was when he was shot. He said he did not know why the shooting happened. When asked if his group were there to cause trouble or had issues with this other group he said they were not. He told the police he was not there with Jayden but he was not really sure.
126It was at this point that Shamar's mother interjected and told her son he just needed to tell the truth and he needed to stop playing this circle game he was playing and he needed to stop hiding information. He needed to answer the questions properly. Both his mother and D.C. Butt told Shamar he was not in trouble, they just wanted the truth.
127Shamar then admitted he was with Jayden that night and Jayden was involved in the altercation. Jayden was talking to one of those guys. He did not know what was going on. The guy talking to Jayden was wearing "glasses" and was "dark-skinned tone." He was with the guys that were taller than him and he thought his name was "Rico" or something but he did not know his actual name. This guy was "calling out" Jayden. Then one of their group's friends, who was by himself, went over to Rico and said "Hi" and was talking to him. Then Jayden walked up to this guy and said, "You know this guy?" Rico then stepped up to Jayden and tried to approach him and said to him, "Don't come to my friend like that." Then Rico began to grab Jayden's shirt and Vaughan got involved and was trying to stop him from doing that. After that Shamar just remembered shots just started firing. The person by himself who went over to Jayden and Rico was ZK. Rico asked ZK if he knew who he was and then they started arguing. Then people were trying to pull Jayden across the road. Vaughan was trying to say, "Relax, let's go, we have to leave." Shamar was in the same place watching the argument. He heard, "Watch out" and then shots firing. He did not see a gun. Nobody told him who had a gun. Jayden told him later he did not know who had a gun, he heard shots and started to run.
128Shamar told the police he did not know what the argument was about. D.C. Butt told Shamar this was his time to be upfront and honest with the police. He then said it might have been about a girl but he didn't really know but that was what he was hearing. He heard that from Vaughan. Shamar said Jayden and ZK told him the guy's name was Rico. He told the police if they put pictures in front of him he would be able to say this one is Rico.
129Shamar told the police he had heard the name Biggz but that name never came up. He just heard from his friends at the hospital it was Rico and a couple of his friends. Shamar then told the police that someone told him that one of guys with Rico was Biggz. CW told him this. CW was in front of the library when they were leaving with his friends. When Shamar and his friends came back from McDonald's and he spoke to CW and he asked him if he knew the big guy in this group and he said one was called Biggz. Shamar was at the top of the roundabout and this other group that was arguing were by the bush or little garden. He asked CW who they were because they were looking at Shamar and his friends.
130As Shamar started to leave that was when ZK drove up in a car in the roundabout. He was in the passenger seat. He got out and was talking to Rico. Jayden was there and then the argument started and it got louder. Then other people, Vaughan included walked over. ZK got back in the car and it left right before the shooting started.
131Shamar described Rico as short, prescription glasses, little dark-skinned, did not have facial hair and skinny type. He did not know how old he was. He thought Biggz was wearing a blue shirt and he was dark-skinned tone. He did not think he had facial hair. He was tall, 6 one or six foot and chubbier. CW pointed him out to Shamar when they were by the van.
132Five minutes after the first statement ended and audio-recording was turned off, D.C. Butt turned the recording on again. D.C. Butt advised after the recorder was shut off, Ms. Fountain provided information that she had shown Shamar a video at the hospital and Shamar identified someone in that video who was the one that shot him at the Ribfest. She asked Shamar to start at the beginning of this transpired. Shamar said his mom showed him the video and he saw the group of guys in the video and they were the group of guys standing in front of the Ribfest. When he saw it, he knew. He saw "two guys who was Rico and that guy in the grey sweater, those are the two guys, that are just kept fidgeting with theirselves every time." He said those two guys and Biggz were the ones talking and trying to pull Jayden across the road. They were telling Jayden to come and trying to pull him across the road.
133Shamar said he believed that "guy in the grey sweater was the one – him – him or Rico were the one who sent – sent shots towards the Ribfest." When he was asked why he believed that he said, Because those are the two – those two guys were the only two guys that kept fidgeting with their waist." He also told the police the guy in the grey sweater tried to keep his sweater over his face and Rico had a bandana over his face or around his neck.
134The person in the grey sweater is a male with dark-skin but a little light skin to him and he looks six/three. He couldn't see his face. The grey sweater had a hood on it and he kept pulling the front of it to cover his face. He thought the pants were grey or black but he wasn't really sure. He heard the name but he didn't remember what it was. He had not seen him before. All he could say about Biggz was wearing the blue shirt. He did not remember the colour of his clothes but he remembered him wearing a bandana over his face and he had glasses on.
135He did not see a gun. He saw the guy in the grey sweater "kept grabbing his waist and it was – it looked like a – a gun in his hand, when he was grabbing it." "I just seen – it was dark. I just remember his – he was holding it through – like under his sweater. And he was – he was just holding it under his sweater, looking around with his – he kept – his sweater kept falling off his mouth. He kept trying to keep it up. I didn't really see what colour it was." His hand was right in front of his waist, holding it but he never saw a gun. "But…that's what he was holding under his sweater. He kept holding his – his sweater over his face."
136Shamar did not know where the video came from but his mother showed it to him in the hospital. He did not see a gun but he believed from the way he had his hand at his waist he had a gun. In looking at the video he identified Biggz as the guy in the blue ball cap. The guy in the grey track suit he believed had a gun. He did not know who these guys were.
137In his third statement, which was audio-recorded at the police station on June 20, 2018, with his mother and D.C. Butt and D.C. Conforti present. D.C. Butt asked Shamar to start at the beginning and tell the police exactly what happened.
138He said he was home when Zach and Khalil came in and asked if he wanted to go to the Ribfest that night. Jayden, Vaughan and Carlton were going and Jonah came downstairs and asked if he could go. They went in and were just sitting on chairs for a few hours. They saw some girls they knew. Then they went to McDonald's for some food and while they were there Zach got a phone call that there was a problem with some guys. They back in the car and went back to Ribfest. Vaughan, Jonah, Carlton and Jayden got out of the car before Zach and Shamar parked the car. He and Zach got up to the entrance and then they heard an argument involving a bunch of guys. At that point a black car drove up and his friend ZK got out of the passenger seat. Jayden had walked over to Rico and was talking to him. Jayden then came up to ZK and asked if knew who Jayden had been talking to and ZK said, "Rico." Then Rico came over and a big argument started. Vaughan and more people got closer to Jayden. Rico and "Sooky" and their friends got closer to Jayden. Shamar then heard them say to Jayden to come across the street. He saw two people ducking across the street but he wasn't sure who it was or what they were doing. Then everybody started screaming "Watch out." He started running and he was shot in the leg.
139Nobody knew what the problem was but after everything happened Carlton said it was about a girl but Shamar did not know anything about that. All of his friends were by the front of the library and then he heard somebody calling out Jayden, calling him by name. That was when Rico walked over to Jayden. When the officer asked if that was when ZK got out of van, Shamar corrected her and said no ZK got out of passenger seat of a black car. CW was in an old van in the roundabout. The black car was just before the bend part. Rico approached Jayden and their voices got louder and others came over. Shamar does not know Rico. Rico was Shamar's height, five/eight or five/nine and slim with dark skin. He had dark or black hair but did not recall what his clothes looked like. He thought Rico was 19 or 20. He had never had any dealings with Rico before. Shamar heard the issue between Jayden and Rico was over a girl but wasn't sure about what. They were talking down by the curb of the sidewalk. Vaughan had gone to Jayden and was saying to just relax. Shamar thought Jayden pushed Rico off of him and told him to let go of his shirt and that was when the shots were fired.
140Sooky and Biggz and some others were with Rico. He did not know who Biggz was and he was told about him by a friend CC. Biggz is "big – like he's thick." He thought Biggz was 18 or 19 with dark skin. He thought Biggz had facial hair but no glasses. Rico had glasses. D.C. Butt asked Shamar about "Zooky" and Shamar corrected her and said the name is Sooky. He was wearing the all-grey track suit and he had his hood on. He did not know if Sooky had facial hair but he thought Sooky did. Sooky was slim. Sooky was right beside Rico when the argument was going on. He did not know Sooky before.
141The main argument was between Rico and Jayden. During the argument they were all telling Jayden to come across the street. Rico started to pull on Jayden's shirt. Jayden was moving around trying to get away, moving his arms and he either hit Rico's arm away or pushed him. Then Shamar heard someone say "Watch out" and shots started firing.
142While the argument was going on, Shamar saw Sooky keep fidgeting under his shirt. He wasn't really sure if Rico was another one but he thought it was both of them that were shooting. Sooky was standing right beside Rico.
143After he saw "the video people started to point them out for me." This was the video his mom showed him. The people in the video were Sooky, Biggz and Rico. Shamar agreed with D.C. Butt he identified in his last statement that the male in the video wearing the grey sweater as the shooter. Every time Jayden stepped closer and one of the guys at the top of the roundabout that were moving around, Sooky "kept turning back a little bit and fidgeting with his waist and stuff. When Shamar was asked if he saw a gun he said, "I think I seen something black under his – under his grey shirt." He described what he saw, "It was just like a little – it was ;like two – two-like millimetres wide….that's all I really seen." Shamar described his hand being under his shirt and he kind of pulled his shirt up a little bit and he guess[ed] [I] seen a part – uh, black bar." He believed Rico was shooting as well because he heard multiple gunshots. People were also saying, it was a rumour, it was both of them. Jayda, who knew both of these guys, told him this.
144Shamar said he heard between five and six shots. He did not see Sooky with a gun but he saw what he believed to be a gun in his waist. He did not see Rico with a gun or anything that resembled a gun. He did not see anyone firing a gun. Shamar said he was standing on the sidewalk closer to the library.
(c) Analysis of Admissibility of Shamar John's police statements (June 7, 2018 and June 20, 2018)
145Shamar John provided two statements on June 7, 2018 (approximately five minutes apart at his home with his mother present, five days after the shooting and one or two days after he was released from the Hospital for Sick Children. A third statement was provided on June 20, 2018, at the police station with his mother present. The Crown is first seeking to have Mr. John's police statements admitted under the principled exception to the hearsay rule submitting as a result of the manner in which his testimony was given in court, the evidence contained in those statements was unavailable thereby meeting the criteria of necessity and that the police statements were given in circumstances where threshold reliability can be established such that they are "sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (see Khelawon, at para. 49 and Bradshaw, at para. 26).
146The onus is on the Crown to establish on a balance of probabilities that the criteria of necessity and reliability exist in the circumstances of this case. In determining whether these criteria exist, I must keep in mind the important principle of trial fairness, which includes the right of an accused to make full answer and defence. In considering trial fairness, however, the Court must also keep in mind society's interest in having the trial process arrive at the truth. (See R. v. Khelawon, supra, at para. 48.)
147Both counsel agree that hearsay evidence is presumptively inadmissible in criminal trials because of the general inability to test its reliability. Without the maker of the statement in court and not subject to cross-examination it may be difficult, if not impossible to inquire into the person's perception, memory, narration or sincerity. The rule against hearsay is intended "to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function." However, the presumption of inadmissibility is not absolute and "the extent to which such evidence presents difficulties in assessing its worth obviously varies with the context.". In some cases the hearsay evidence "presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding." (emphasis in original) As a result a number of exceptions to the rule were created by the courts and in recent times the Supreme Court has developed a "principled exception to the hearsay rule. Under this approach hearsay evidence can be admitted where the applicant demonstrates on a balance of probabilities that the twin criteria of necessity and reliability can be met (see Khelawon, at para. 2).
(1) Necessity
148The Crown and defence counsel do not agree on whether the twin criteria of necessity and threshold reliability are met. Mr. Murray, for the Crown, submitted the necessity requirement has been met because the evidence contained in Shamar John's police statements and his identification of the person he believed had a gun just before the shots were fired and he was struck by two projectiles in his left leg is unavailable because Mr. John testified he had no memory of anything that occurred at the Ribfest, he did not recall speaking to the police with his mother present on three occasions, he did not remember an argument between some of his friends and three older individuals at the entrance to the Ribfest, he did not recall watching a Snapchat video when he pointed out an individual he believed he saw had a gun in the waist of his pants just before the gun shots were fired. In fact Mr. John answered most questions put to him with "I don't remember."
149Ms. Fry submitted Mr. John's "statements to the police and corollary identification do not meet the requirement of necessity, insofar as they are not probative or relevant for the following reasons:
(i) Mr. John never purports to identify the shooter in his audio recorded statements to police. He repeatedly, steadfastly, indicates he did not see the shooter, and did not see a gun. Rather he points out some, who someone else told him is "the guy" and expresses his belief, or suspicion that the guy in the grey hoodie might be the guy;
(ii) He also indicates he suspects male in grey hoodie or another guy might be the shooter as they were fidgeting with their clothes in their waist area;
It is submitted this is no evidence that identifies a shooter, or even a party to the offence. It raises a suspicion" (see Defence Written Submissions, at para. 57).
150The Crown submitted the focus for determining necessity is the unavailability of the testimony, not the unavailability of the witness (see Khelawon, at para. 78). In Khelawon, at para. 78, the Supreme Court held the necessity criterion is given a flexible definition. In some cases, as in R. v. B. (K.G.) 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740), where a witness recanted an earlier statement, necessity was based on the "unavailability of the testimony (emphasis in the original), not the witness." It is important to note in this case, although Shamar John did not recant his three prior statements to the police, he was clearly refusing to testify as to what he had told the police in his three police statements. As a result of his lack of recall and memory it was the Crown's submission, Mr. John's key testimony (description of the events which occurred just before the gun shots were fired and his identification of an individual wearing a grey hoodie/track suit as having what he believed to be a gun in his waist of his pants just before shots were fired and he was struck twice) was unavailable.
151I agree with the Crown's statement of the law respecting the necessity criterion that necessity should be given a flexible definition and the issue to be determined is whether the testimony of the witness is available. It is my view Ms. Fry has confused how she would interpret Mr. John's identification of the individual in the grey hoodie, which more properly relates to the different or conflicting reasonable inferences available on Shamar John's evidence had he given testimony similar to what he told D.C. Butt in the presence of his mother with what the Supreme Court clearly held in Khelawon. It is my view the manner in which Shamar John testified establishes the necessity criterion as defined in Khelawon.
(2) Threshold Reliability
152The second criterion of admissibility refers to threshold reliability of Shamar John's police statements. The trial judge, or in this case the preliminary inquiry judge, acts as a gate-keeper in making this preliminary assessment of the "threshold reliability" of the hearsay statement and leaves the final determination of its worth or "ultimate reliability" to the trier of fact (see R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] S.C.J. No. 57, at paras. 2 and 47; R. v. Bradshaw, 2017 SCC 35 (CanLII), [2017] S.C.J. 35, at paras. 22 and 23). Even where a trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude the evidence if its prejudicial effect outweighs its probative value (Khelawon, at para. 49).
153It is clear from Khelawon and Bradshaw that if threshold reliability is found then a preliminary inquiry judge or a trial judge sitting with a jury should not go on to consider ultimate reliability. This is solely within the purview of the trier of fact, either a trial judge sitting alone or a jury. The Crown argued if threshold reliability was established then the police statements of Shamar John would constitute "some evidence upon which a reasonable jury, properly instructed, could convict" and only the limited weighing respecting circumstantial evidence to determine the reasonable inferences available, as permitted by R. v. Arcuri, would apply.
154Both counsel agreed that "the reliability requirement will generally be met by showing (1) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or (2) that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination" (Crown Written Submissions, at para. 44 and Defence Written Submissions, at para. 56, see also Khelawon, at paras. 61-63).
155In Khelawon, at para. 92-93, the Supreme Court held it would be error if a trial judge considered the internal contradictions contained in a witness' statement because "those considerations properly related to the ultimate assessment of the actual probative value" of the statement, a matter for the trier of fact. Whether certain factors will go only to ultimate reliability will depend on the context. Relevant factors should not be categorized in terms of threshold and ultimate reliability. In determining threshold reliability, the court should adopt a more functional approach and "focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers." As indicated by Charron J.:
…the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not – recall U. (F.J.).
156In Khelawon and Bradshaw the Supreme Court held there are two possible routes to establish threshold reliability – substantive reliability and procedural reliability –which are not mutually exclusive (see Khelawon, at paras. 62-63; R. v. Devine 2008 SCC 36 (CanLII), [2008] 2 S.C.R. 283, at paras. 22-23). In R. v. Ali, 2015 ONCJ 765 (CanLII), [2015] O.J. No. 4201 (OCJ), at para.16, Justice Paciocco, as he then was, held because of this, "indicia of reliability can overcome deficiencies in the process-based criteria, and vice-versa." The Crown conceded there is a lack of some of the "standard" procedural reliability indicia, such as oath or affirmation, or a caution advising of the consequences of not telling the police the truth. Mr. Murray submitted, despite this, there were sufficient substantive and procedural indicia to render the three police statements sufficiently reliable to establish threshold reliability.
157The Supreme Court in R. v. Bradshaw, at para. 57, delineated a four step inquiry for a trial judge to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, she should:
Identify the material aspects of the hearsay statement that are tendered for their truth.
Identify the specific hearsay dangers raised by those aspects of 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.
158The issue of having to determine whether Mr. John's three police statements can be admitted for the truth of their contents arose in this case because of Mr. John's inability or refusal to remember anything concerning the events leading up to and including his being shot twice in the left leg despite his having provided three detailed police statements (two statements (5 minutes apart) were provided just 5 days after the shooting and the third statement was provided 18 days after the shooting). Mr. John's lack of memory lasted throughout his examination in-chief and cross-examination by both the Crown and defence. In my view it is significant that Mr. John did not recant his earlier statements or indicate he had lied to the police or misled them in any way. The defence raised concerns that the five minute gap between the first and second statement was not recorded and undocumented. It is true the five minutes was not recorded as D.C. Butt ended the interview on June 7, 2018 at 7:51 p.m. by turning off the audio recorder and did not turn the audio recorder back on until 7:56 p.m., however, D.C. Butt indicated at the very beginning of the second statement what transpired during the five minutes the audio recorder was off and why she had recommenced the interview. Further, D.C. Butt and Ms. Fountain both testified as to what transpired during the period the audio recorder was off and were cross-examined by the defence. I do not agree with Ms. Fry's position that this five minutes was undocumented.
159Mr. John testified at the preliminary inquiry and was available for cross-examination, which is an important factor in respect of the determination of testing for truth and accuracy, The Crown conceded that given Mr. John's "memory" difficulties, the cross-examination was not very effective, although he submitted "certainly in establishing threshold reliability the opportunity to observe Mr. John is a powerful tool to assist in denuding the hearsay risks of introducing the prior statements." Ms. Fry argued Mr. John's lack of memory that his "evidence can't be tested under oath and therefore reliability can't be demonstrated. It is my view the reliability of Mr. John's testimony in court can be determined by examining whether the evidence contained in his police statements was corroborated or confirmed by other witnesses. If his testimony in court remained the same a trier of fact could certainly evaluate Mr. John's professed lack of memory and could reasonably find his lack of memory to be fabricated and reject this evidence completely. The ultimate reliability of the evidence contained in his police statements, if admitted under the principled exception can certainly be assessed and determined by the trier of fact when it is considered with the whole of the evidence.
160I do not agree with Ms. Fry's position that the three police statements of Shamar John were not provided at an early opportunity. Mr. John and his mother testified he was in the Hospital for Sick Children because of his injuries for three days. The first two statements were taken a day after he was released from hospital at his home in the presence of his mother. The third statement was taken just 18 days after the shooting and two weeks after he was released from hospital. As I will discuss later in my reasons, Mr. John was initially somewhat hesitant in being forthcoming with information in his first interview until after his mother impressed upon him the importance of his being truthful with the police officers and D.C. Butt advised him he was not in any trouble and the police were only interested in the truth as to what occurred during the events leading up to and including the shooting. It is my view Mr. John's demeanour and attitude changed and he was much more detailed and forthcoming as to his recollection of those events and the information he provided.
161Both Shamar John and Ms. Fountain identified the voice of the individual providing information to the two officers as being Mr. John. Mr. John testified he knew the two police officers identified themselves as officers investigating the shooting at Ribfest, where he was shot. He testified he knew he was speaking to two police officers at the time he gave the three police statements. He also acknowledged hearing his mother's voice on the audio recording and that she was present during all three of the statements he provided. When Mr. John was asked whether he was trying to be truthful and accurate with the police concerning the shooting he testified that he could not remember what he was thinking at the time and therefore could not acknowledge he was trying to be as accurate as possible.
162A significant feature of all three of Mr. John's police statements was that they were voluntarily provided by Shamar John. On June 7, 2018, a day after his release from hospital, he and his mother arranged for the police to attend his home, so he could be interviewed as to his recollection of the events. The questioning by D.C. Butt, in my view, mimics the kind of evidence given in court when a witness is examined in-chief. D.C. Butt did not put suggestions to Mr. John or cross-examine or challenge him respecting his recollections. At no point was he asked inappropriate leading questions. All three of his interviews were audio-taped, ensuring a full and accurate record of what was said. There was no evidence led to suggest he or his mother were coerced, in any way, into giving the interviews. It was clear to me from the recording played in court that Mr. John freely chose to provide his statements and there was nothing in the manner in which the interviews were conducted to raise a probability of involuntariness. Furthermore, I am satisfied on a balance of probabilities that Shamar John's statements to the police were not the product of coercion of any form, whether involving threats, promises, excessively leading questions by D.C. Butt or D.C. Conforti or any other forms of investigative misconduct.
163The Crown points to the fact Shamar John was 14 years of age at the time he provided the statements, from the audio recording it was clear he demonstrated respect and deference towards his mother, and all of his statements were made with her present. The audio recordings have been transcribed and from listening to the statements in court I was satisfied the transcripts were accurate and it is my view the trier of fact would be in a position to assess their ultimate reliability. His viewing of the Snapchat video in the second statement on June 7, 2018, was recorded and observed by the two officers and Ms. Fountain and his pointing to the individual in grey as a person he believed had a gun because he was fidgeting with something at his waist was spontaneous from his comments made when they are viewing the Snapchat video. Ms. Fountain confirmed the person in the video her son pointed to at the hospital was the person with the grey hoodie/track suit. She also testified Shamar pointed to this same person during his statement when the video was played. This was also confirmed in D.C. Butt's evidence.
164Having listened to and reviewed Mr. John's three statements I agree with the Crown's submission that other than Mr. John's initial attempt to not tell the police officers the whole story at the beginning of his first statement, there were no inconsistencies within or between his statements. His version of the events leading up to and including the shooting as between his three statements, as I discussed above was consistent. In my view it is significant that Mr. John's did not have any knowledge of or bear any animus towards Mr. Francis-Simms. Shamar John in his second and third statements identifies an unknown male person dressed in a grey sweater/track suit, in a Snapchat video, as a person he believed had a gun because he was fidgeting with something black at his waist. As indicated earlier, Mr. John did not recant any of his police statements or testify he lied or misled the police in their investigation, the main theme throughout his testimony was he does not remember anything because it was so long ago. The trier of fact at the trial would certainly be in a position to evaluate this evidence and could reasonably find his lack of memory to be fabricated and reject this evidence completely.
165It is my view all of these circumstances, noted above, surrounding the making of Mr. John's police statements should be considered in determining threshold reliability.
166It is Ms. Fry's position that the failure of the police to get Mr. John to swear or affirm to tell the truth at the outset of his statements and the fact he was not cautioned about the implications of providing false information during a police investigation prevents a determination that the statements meet threshold reliability. It was clear from the evidence of D.C. Butt, the officer in charge of the investigation, that Mr. John was not a suspect, he was viewed by police as a victim and a witness. He was also 14 years of age and a young person. His mother was present for all of the interviews. It should be noted that the optimal conditions identified in B. (K.G.) and Khelawon respecting procedural reliability are not formal prerequisites to admissibility (see R. v. Ali, at para. 48). They are factors to be considered in the whole of the evidence. As observed by Justice Paciocco, in R. v. Ali, "Other considerations can substitute for these optimal circumstances, even where the declarant later recants and the hearsay exception is being relied upon." As indicated above, procedural reliability and substantive reliability are not mutually exclusive.
167Ms. Fry also pointed to the fact the three statements of Mr. John were not video-taped and argued there was no opportunity to observe Mr. John's demeanour during the interview. There is no doubt that a video-taped interview would have shown Mr. John's facial expressions, however, an audio recorded statement as I've indicated provides an accurate reflection of what was said in terms of the nature and manner of D.C. Butt's questions and Mr. John's answers are clearly heard on the recording. As I indicated earlier there was a definite change in the way he answered questions after his mother confronted him with:
Can I just butt in for one second please? Shamar, they – they know more than what you're telling them right now. You're not in trouble. You just need to tell the truth. So, this little circle game that you're playing right now, it's not working with them. Do you understand? Enough with the running around in the games. That's why they're asking these questions. So, you need to talk up now. Do you understand me? You're – you're not a big kid. You're 14 years old. Stop sticking up for people. Stop hiding information. They already know – they're – they're asking you questions because they already know the answers to them. So, you need to answer them properly now. Do you understand? So, she can ask you the questions again, and you're going to answer properly this time. Right?
168Ms. Fountain's interjection came when Shamar told the police he was not with Jayden at the Ribfest and that Jayden was not present when the shooting occurred. D.C. Butt told Shamar the police had information already that Jayden was there with Shamar that night just before Ms. Fountain asked if she could speak up. Shamar then told the police that he might have seen Jayden at MacDonald's earlier that night but he was not sure if it was him. After Ms. Fountain's interjection, Mr. John told the police that he was with Jayden and he provided details of Jayden being directly involved in the argument with the group of individuals he had described earlier and that this argument and interaction between the two groups was occurring just before the shooting started. This change in demeanour is quite evident from the audio recording as Mr. John became much more detailed and forthcoming in his description of the events leading up to and including his being shot, for the remainder of his first statement and when the recording was reactivated for his second statement when the Snapchat video was played and Mr. John described how he understood the three individuals in the Snapchat video were part of the group involved in the argument and the shooting and that he believed the person "in the grey sweater was the one who sent shots towards Ribfest."
169In my view there were a number of other pieces of evidence provided by witnesses called by the Crown at the preliminary inquiry, which confirmed or corroborated the information provided by Shamar John.
170It is also important to note that Ms. Fountain had already shown her son the Snapchat video she obtained from one of her son's friends at the hospital and she discussed it with him. (This is reflected in the second statement, at page 7.) It was Ms. Fountain's evidence her son pointed out the male person with the grey hoodie/track suit as the person who had what he believed to be a gun. This initial identification of the person in the grey sweater/track suit (Mr. Francis-Simms is identified as this person by Donaghue Morgan) occurred almost immediately after the event on June 2, 2018, as he lay in his hospital bed. In pointing out the male person wearing a grey hoodie/track suit it is my view Mr. John would have no reason to lie to his mother. At the conclusion of the first statement, after the audio recording was turned off, Ms. Fountain told the police about the Snapchat video she had shown to her son in the hospital and her son's previous comments concerning the individuals in the video.
171Ms. Fry's submissions respecting the method of showing a witness a video with only three individuals, as opposed to a properly composed photo array, in my view relates to the trier of fact's determination of whether the Crown at trial has produced evidence identifying Mr. Francis-Simms as the shooter or as a party to the shooting beyond a reasonable doubt and does not assist in my determination of whether the Crown has established threshold reliability of Shamar John's three police statements. If Mr. John's statements are admissible pursuant to the principled exception to the hearsay rule and the Snapchat video is also admissible then there is some evidence upon which a reasonable jury, properly instructed could find Mr. Francis-Simms guilty. In fact, Ms. Fry conceded this in her written submissions, in the same way the Crown conceded if Mr. John's statements are not admitted for the truth of their contents then Mr. Francis-Simms should be discharged.
172In Mr. Hamedi's second police statement he identified the shooter as wearing a grey hoodie T-shirt and that he was part of a group of black males that were arguing with his friends. Mr. Hamedi in his statement also described the person in the grey hoodie T-shirt as carrying a side bag – pouch, which he thought was dark grey. In the Snapchat video Mr. Francis-Simms (as identified by Donaghue Morgan) was wearing a grey hoodie T-shirt, with short sleeves and he was carrying a side bag or pouch over his shoulder. Mr. Hamedi's evidence from his statement meshes with Shamar John's description of the events leading up to the shooting.
173If Vaughan Roberts hand-written police statement is admitted under the principled exception to the hearsay rule, Mr. Roberts said there was an altercation or argument between a group of older individuals and his friends. He said he went over to where this was occurring and he was shot, and he saw Shamar was shot too. P.C. Moulton testified she heard someone screaming behind a bush and she found Mr. Roberts on the other side of these bushes. This was consistent with what Shamar John told the police that Vaughan Roberts went over to where these guys were trying to pull Jayden to the other side of Glenanna Road. Mr. Roberts said he was down by the bushes, which from the photographs filed the semi-circle roundabout goes around some bushes and trees and is closer to the east sidewalk on Glenanna. Mr. Roberts described the person he believed had a gun was wearing a grey hoodie. He described hearing four "pops" and then three more. Mr. Hamedi said he heard four or five shots and Mr. John said in his statements he heard five or six shots. Mr. Roberts also described the group involved in the argument with his friends as being "grown men." Again, Mr. Roberts evidence describes similar events to Mr. John.
174The evidence of Sierra Oliver concerning her friendship with Josh Lawrence, whose nickname she knew was "Rico," and her evidence of how she was friends with Mr. Lawrence on Snapchat and his Snapchat account was "Rico Flipmode" also provided confirmation of Mr. John's evidence concerning one of the persons he identified at the Ribfest as being Rico. A further link is Ms. Oliver's evidence that Josh Lawrence or "Rico, which she said was his nickname," sent her a Snapchat message on June 12, 2018, which told her to "Tell your YBs to know their size and they won't get hurt. Don't be a casualty." Ms. Oliver testified she believed this message was in reference to what occurred at the Ribfest. She testified she showed it to Jayden, one of her young boys. Mr. John said the person arguing with Jayden outside the Ribfest entrance was a male person whose nickname was "Rico." He told the police Vaughan and ZK told him the guy arguing with Jayden was called "Rico."
175Brianna Morgan was at the Ribfest with some friends and was not part of either of the two groups who she described as yelling at each other. She did not know any of the people arguing. She was by the entrance of Ribfest by the library and the argument was 10 to 12 feet away from her. She saw the person that was shooting standing by the bushes closer to Pickering Town Centre parking lot. Only saw one person shooting, who was wearing a Roots grey track suit, salt and pepper in colour. He had dark hair and darker skin colour. She knew he was shooting because she saw the gun. She heard the gunshots but could not recall the number of shots. Mr. Hamedi saw the person with the grey hoodie T-shirt walk to the other side of Glenanna before he heard the gunshots and saw the smoke around the gun and the hole where the bullets come out. Mr. John in his statements said the group of people were arguing with Jayden at the bottom of the semi-circle driveway/roundabout at Glenanna Road. All of this evidence fits together in terms of the positioning of the two groups, the fact there was an argument and voices were raised and that the result of this was shots were fired by someone wearing a grey hoodie or grey clothing. Ms. Morgan saw this person in the grey hoodie shooting a gun, which meshes with Shamar John's evidence of observing the person with the grey hoodie fidgeting with his waist before the shots were fired causing him to believe he had a gun.
176Ms. Morgan testified she provided her statement to the police a half hour after it happened. She believed the shooter had braids – not long and she saw them coming out from under his hoodie. His skin was dark black. She did not recall saying anything about his age. She ran back to the entrance and was focused on getting away from him.
177Mr. Angelo Goco testified he was at the Ribfest with friends. They arrived at 10:30 and stayed till closing at 11 p.m. He was walking out of the entrance by the library to go to his car parked in the Pickering Town Centre parking lot. As he was crossing Glenanna he heard people yelling. They were black males wearing hoodies. He was close to the sidewalk by the parking lot. He heard gunshots and looked towards the direction they were coming from and saw a male shooting towards the entrance of City Hall. He did not get a good look but he believed the person shooting was wearing a white hoody. The hoody was up. This person had black skin. Mr. Goco ran the opposite way. He was able to see the gun – it was a handgun and he believed it was small. He believed there were more than five shots. The person shooting was in his 20s. Mr. Goco said it happened very quickly, a matter of seconds. He believed the white hoody was long sleeved. He saw some people picking up stuff from the ground. He believed they were picking up shell casings.
178Jwoel Benn was one of the individuals who was shot at the Ribfest. He was walking into the Ribfest when he heard an argument behind him that he believed might have caused the shooting. He saw his partner business Karim, who he has a clothing brand with, as he was walking into the Ribfest and he also saw Zach. He spoke to both of these people. Mr. Benn's back was to Glenanna and he hear a loud bang, he started running and he was struck in his right arm with a bullet. He continued running and got near to Sears in the Pickering Town Centre. He saw a man and told he him he was shot and could he take him to the hospital and this man drove him. The police spoke to him in the hospital. Mr. Benn knew "Rico" or Josh Lawrence but he did not see him at the Ribfest. He knew him through people he went to school with in Ajax and he bought sweaters off of him.
179Andrew Joseph was the fourth person shot while he was exiting the Ribfest. He was shot in both legs. He was coming out of the entrance by the library at the top of the roundabout. He heard a little commotion and then shots fired. There were a lot of people outside at the entrance leaving. He did not see who was shooting. He was taken to Sunnybrook Hospital.
180Both Mr. Benn and Mr. Joseph became aware of an altercation or argument between a number of people just before the shots started firing, which is consistent with Shamar John's statements to the police.
181The hearsay risks associated with Mr. John's three statements relate to whether Mr. John was being untruthful in what he told the police, whether he was misremembering the events leading up to the shooting or whether his belief the male person in a grey hoodie as being the shooter was influenced by information he was provided by others. First there is no evidence to suggest Mr. John was being untruthful in his identification of the individual in the grey hoody shown in the Snapchat video. There is no evidence he even knows Mr. Francis-Simms or the other two individuals in that video. There is no evidence that he bore ill-will against Mr. Francis-Simms that would cause him to falsely accuse him. There is no motive for Mr. John to lie about seeing a person in a grey hoody he believed had a gun.
182His mother, Stephanie Fountain testified she showed this video to her son while he was in the hospital and he pointed out the person in the grey hoody as being the person he believed had a gun because of his fidgeting with his waist and his observing a black bar. The core of his narrative in my view meshes with the evidence of a number of other witnesses who described an individual in a grey hoody shooting a gun. One witness believes the colour of the hoody was white but the location of the shooter with the gun is consistent with all of the witnesses I have discussed above. Mr. John's account of what occurred is strikingly similar and consistent with the information and time lines furnished by other witnesses. In my view these indicia of reliability support the admission of Mr. John's statements.
183Mr. John might be mistaken in his identification from the video he observed shortly after he was shot, while he was at the hospital and again on June 7 in his second statement. Whether he was mistaken is not a specific hearsay risk given the accuracy of the audio recording and the observations by his mother and the police of his identification from this video, which I ruled above is admissible. Whether Mr. John is mistaken is a credibility issue to be determined by the trier of fact. The completeness of the audio recording regarding the identification, as well Mr. John's availability for cross-examination, in my view, provide the circumstantial guarantees of trustworthiness to overcome the hearsay concerns.
184What other alternative explanation exists other than when Mr. John provided his statements and identification to the police he was telling the truth. He did not know who the shooter was. He did not know who the other individuals were who were in the video with the guy in the grey hoodie he identified as the shooter. He advised the police in his statement it was CW, who drove up in the van in the roundabout driveway, and who told Mr. John that the "big guy's" name was Biggz. He did not know who this person was and had never seen him before June 2, 2018. He was told at some point by Vaughan Roberts and ZK, who got out of the passenger seat of a black car in the roundabout driveway, that the guy with the glasses' name, who was arguing with Jayden, was Rico. He told the police in his June 7 statements he heard the name of the guy with the glasses, who was shorter than the other two, that night but he could not remember it. In his third statement he advised the police the guy's name with the glasses was Rico and he told them who told him this. He also told the police in his third statement when he watched the video again that the guy in the grey hoodie/track suit was called Sooky. He told the police who told him this name as well.
185In my view another hallmark of reliability were the occasions when D.C. Butt would repeat something incorrectly that she thought Mr. John had told her and he corrected her. For example, she referred to Sooky as Zooky and Mr. John corrected her or when she said ZK got out of the van and Mr. John corrected her and said no he got out of the black car or when she said he did not know anyone in the van and he said no he knew CW. If Mr. John was making everything up as he went along it is my view he would not have corrected D.C. Butt when she misstated what he had told her previously.
186For all of the reasons listed above it is my view the corroborating evidence of other witnesses and the Snapchat video itself, with the user name Rico Flipmode, which Ms. Oliver confirmed was her friend Josh Lawrence or Rico's Snapchat account user name. Further, she received a Snapchat message from Josh Lawrence's Snapchat account threatening her YBs (young boys), who included Jayden and Shamar John. Mr. Benn said he was an acquaintance of Josh Lawrence, who he also knew as Rico.
187It is my view considering the totality of the evidence the circumstantial guarantees of trustworthiness I have outlined above are sufficient to overcome any hearsay dangers and the Crown has established threshold reliability and Shamar John's three police statements are admitted for the truth of their contents.
Assessment of the Requirements of Necessity and Threshold Reliability on the Principled Approach to the Hearsay Rule as it relates to Zachery Hamedi's police statements
188In respect of Zachery Hamedi's two statements to D.C. Butt and D.C. Conforti, I have already found the traditional exception of past recollection recorded is applicable and admitted his statements for the truth of their contents. If I was wrong in my assessment respecting past recollection recorded, it is my view that the criteria of necessity and threshold reliability are both met in relation to his statements.
189His loss of memory and his lack of present recollection respecting some of the details set out in his statements, which I found to be genuine, has been found to satisfy the necessity requirement (see Richardson, at para. 36 and R. v. C.C.F. (1997) 1997 CanLII 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.)).
190As I indicated above the assessment of threshold reliability involves identifying the hearsay dangers inherent in admitting an out-of-court statement for its truth and then a determination as to whether the circumstances present surrounding the making of the hearsay statement, either procedural or substantive, provide sufficient circumstantial guarantees of trustworthiness to compensate or overcome those hearsay dangers.
191Not all of the procedural indicia of reliability are present in the taking of Mr. Hamedi's two police statements as neither are sworn or affirmed. However, there are a number of procedural indicia of reliability and importantly, there are a number of substantive reliability indicia present, which factors provide sufficient circumstantial guarantees of trustworthiness to be able to admit the statements into evidence:
a) The two statements are taken in a timely fashion after the events of June 2, 2018 – one the next day, within several hours of the shooting and the other within three weeks of the event;
b) There was no evidence Mr. Hamedi had any motive to lie, in fact he testified he was attempting to provide accurate and truthful information of his observations and knowledge of the events leading up to the shooting;
c) D.C. Butt did not ask leading questions when questioning Mr. Hamedi and there was no evidence of any misconduct by the police in obtaining the statements, in fact, the evidence supports the fact Mr. Hamedi voluntarily provided both of his statements to the police, the first statement occurred after he attended the police station concerning his car, which had been seized for evidence because of its location and Mr. Hamedi was advised after entering the interview room he was free to leave at any time if he wanted to and when the police arrived at his house for a follow-up interview Mr. Hamedi invited them in;
d) The first statement was recorded on video and audio at the police station and had been accurately transcribed and the second statement was taken at his home and was audio recorded and an accurate transcript was completed;
e) Mr. Hamedi testified in court he understood the importance of telling the police the truth and he was being as truthful and accurate as possible when he gave his two statements;
f) D.C. Butt cautioned Mr. Hamedi prior to his providing each statement, emphasizing the importance of telling the truth and the potential criminal consequences for providing false information to the police;
g) Mr. Hamedi was available to be cross-examined by the defence concerning the events leading up to the shooting, his current recollection, which had been partially refreshed and the circumstances surrounding his providing the two statements; and
h) Mr. Hamedi had an "imperfect present recollection" as there were some specific details he no longer recalled because of the passage of time, his memory had been refreshed when he reviewed portions of his statements and not refreshed in respect of other details. A number of the details he recalled were corroborated by other witnesses evidence, the fact the shooter wore grey, the shooter was on the other side of Glenanna and he saw a gun from the smoke around it being held by the guy in grey and the fact there was an argument he heard before the shooting occurred.
192In my view the factors listed above satisfy me that the Crown has established necessity and threshold reliability and Mr. Hamedi's two statements will be admitted pursuant to the principled approach to the hearsay rule for the truth of their contents.
Assessment of the Requirements of Necessity and Threshold Reliability on the Principled Approach to the Hearsay Rule as it relates to Vaughan Roberts' police statement
193I did not admit Vaughan Roberts' police statement under the past recollection recorded exception to the hearsay rule because I was not satisfied his memory loss was genuine. This is not a requirement under the principled approach to the hearsay rule.
194As indicated above memory loss, whether genuine or feigned will be sufficient to establish the criteria of necessity and I am satisfied the Crown has met that requirement. Mr. Roberts' statement is not given under oath or affirmed. However, with respect to whether the Crown has established the threshold reliability of Mr. Robert's police statement, it is my view there are a number of factors that provide circumstantial guarantees of trustworthiness such that his two page hand-written statement given to P.C. Moulton should be admitted for the truth of its contents.
a) Vaughan Roberts' hand-written statement was taken within two hours of when he was shot so it is clearly timely, when the events were fresh in his mind;
b) There is no evidence that would support any suggestion Mr. Roberts had a motive to lie or bore any animus towards Mr. Francis-Simms, as he did not know who he was;
c) P.C. Moulton who recorded the questions she asked and the words spoken by Vaughan Roberts in answer testified she recorded them verbatim, it is my view the way in which the statement is recorded supports P.C. Moulton's evidence in this regard;
d) The questions asked by P.C. Moulton were not leading and did not suggest the answers and there was no evidence that P.C. Moulton engaged in any misconduct in respect of coercing Mr. Roberts to provide a statement and it is my view Mr. Roberts answered her questions voluntarily;
e) P.C. Moulton testified Mr. Roberts was calm, conscious, alert, cooperative and responded appropriately to the medical staff and herself in conversation throughout her involvement with him and there was no evidence presented to refute her observations;
f) Mr. Roberts testified under oath in court he had no reason to lie when he was questioned by P.C. Moulton, in fact, he said on a number of occasions, "Why would I lie, I had no reason to lie";
g) Mr. Roberts was cautioned by P.C. Moulton that it was important that he tell her the accurate recollection of the events, that his statement was for court purposes, this was why she was taking the statement and that he make sure he was not providing a false statement because he could be charged with public mischief;
h) Mr. Roberts was available to be cross-examined about the events of the shooting, his current recollection of it and the circumstances surrounding his providing the statement; and
195In my view the factors listed above satisfy me that the Crown has established necessity and threshold reliability and Mr. Roberts' hand-written two page police statement will be admitted pursuant to the principled approach to the hearsay rule for the truth of their contents.
Does the probative value of Shamar John's statements, Zachery Hamedi's statements and Vaughan Roberts statement outweigh their prejudicial effect?
196In R. v. Bradshaw, at para. 24, the Supreme Court refers to the gatekeeper function played by a trial judge and indicates there is a constitutional dimension because of the difficulties in testing hearsay evidence that can threaten an accused right to a fair trial. Consequently, even where the trial judge is satisfied the evidence is necessary and sufficiently reliable, she has the discretion to exclude the evidence if its prejudicial effect outweighs its probative value.
197The probative value of Shamar John's statements is particularly high having regard to the fact they contain his identification of a person he says was the shooter on June 2, 2018, who fired a gun into the crowd of people who were exiting the Pickering Ribfest. In his second and third statements he identifies an individual in a Snapchat video, who he does not know, but says he is the person he saw with what he believed to be a gun just before the shots were fired. The individual in the Snapchat video is subsequently identified as being Ahyjah Francis-Simms by his brother. Mr. John's statements also contain information concerning an argument involving some of the friends he is with and the three individuals in the Snapchat, which led to the shots being fired. The location of this argument, where the shots were fired from, the colour of clothing attested to by other witnesses who did not view the Snapchat video corroborates the information provided by Shamar John. Some of that information is also corroborated in the statement provided by Vaughan Roberts, which he no longer remembers and both the testimony of Zachery Hamedi in respect of some details and other details he provided in his police statements that he no longer recalls. There is also corroborative evidence from other witnesses I have set out above which identifies a man dressed in a grey hoodie firing a gun as a result of an argument between two groups of people. This evidence has the potential of being powerful evidence implicating Mr. Francis-Simms in the shooting of four individuals, however, the use of a short seconds-long video as the basis for an identification of the individual who is alleged to be the shooter raises as many questions about the quality of that identification. The Snapchat video as I indicated in my reasons does not depict someone committing a criminal act, as in Nikolovski. There will be no surprise that the identification of Mr. Francis-Simms will be the central issue in this trial.
198Further, in this case the identification evidence relates to a very short Snapchat video containing only three individuals, which the trier of fact will have to assess, together with the evidence of Donaghue Morgan, the brother of Mr. Francis-Simms, which the trier of fact will also have to assess and from Mr. Fry's cross-examination of Mr. Morgan there is an allegation of bias and animus by Mr. Morgan towards his brother.
199In my view the prejudicial effect of the admission of these three witnesses' police statements, which clearly amount to out-of-court hearsay statements, can be ameliorated and reduced by the cross-examination of these three witnesses, who are available, albeit with less than perfect memories, however, the trier of fact will be able to assess their credibility by comparing their evidence in court, which they may find is untruthful, such that they do not believe either their testimony or what they said in their statements.
200The major concern arising from the admission of the statements of Shamar John, Vaughan Roberts and Zachery Hamedi is the danger that the jury will rely on it to the exclusion of other evidence, and without adequate consideration being given to dangers inherent in hearsay evidence. In my view, these concerns can be dealt with adequately through appropriate instructions to the jury or a trial judge instructing herself on the issue of ultimate reliability.
Conclusion
201As a result of my findings that the Crown has demonstrated the criteria of necessity and threshold reliability the statements of Shamar John, Vaughan Roberts and Zachery Hamedi are admitted on this preliminary inquiry for the truth of their contents. Applying the law respecting preliminary inquiries, the Sheppard test and the limited weighing allowed by Arcuri, it is my view there is some evidence upon which a reasonable jury properly instructed could find Mr. Francis-Simms guilty of the indictable offences he is facing respecting his being a party to the shooting the occurred on June 2, 2018, outside the entrance to the Pickering Ribfest on Glenanna Road in Pickering.
202Further, based on the concessions of counsel there will be a committal on aggravated assault contrary to s. 268(2) x4; assault with a weapon contrary to r s. 267 (a) of the Criminal Code x4; discharging firearm contrary to s. 244(1) of the Criminal Code x2; discharge firearm contrary to s. 244.2(3) of the Criminal Code; possess firearm contrary to s. 96(1) of the Criminal Code; possess restricted firearm contrary to s. 91(3) of the Criminal Code; possess restricted firearm contrary to s. 92(3) of the Criminal Code; use restricted weapon contrary to s. 86(1) of the Criminal Code; possess restricted weapon contrary to s. 91(2) of the Criminal Code; possess firearm while prohibited under s. 51(1) of YCJA contrary to s. 117.01(3) of the Criminal Code;.; possess firearm while prohibited contrary to s. 117.01(3) of the Criminal Code; and possess firearm while prohibited under s. 51(1) YCJA contrary to contrary to s. 117.01 of the Criminal Code.
Released: February 6, 2020
Signed: Justice Peter C. West