WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
— AND —
WALLACE WALTER PLEASANT
Respondent
Before Justice H. Borenstein
Ruling on Out-of-Court Statements released on April 30, 2021
Mr. Ari Linds counsel for the Crown
Mr. Vincent Rishea counsel for the defendant Wallace Walter Pleasant
BORENSTEIN, J.:
1This is an application by the Crown to adduce two out-of-court statements of the complainant C.B.
2Wallace Pleasant is charged with assault causing bodily harm and forcible confinement. The allegations are serious. The complainant, who is herself in custody awaiting break and enter charges, has refused to leave her cell and come to court. She will not even appear before a video camera at the jail to testify. I am told that she has also flooded her cell by opening the sink and has been unruly with correctional staff. As a result, the Crown brings this Application. The governing case law is Khelowan and Bradshaw. The Crown must establish that the statements are necessary and reliable. Necessity is conceded. The issue is whether the Crown has established on a balance of probabilities that either or both statements have sufficient threshold reliability to justify their admission without the need for cross-examination.
Overview
3By way of background, at 9:30 in the morning of February 5, 2019, police received 911 calls in relation to a commotion at an apartment building on Bleeker Street.
4Officers Huang and Muirhead were on bike patrol nearby and attended the building immediately. They were directed to the 17th floor. As they exited the elevator on the 17thfloor, they heard screaming and followed the screams. As they got to the apartment door, Wallace Pleasant’s apartment, they heard screaming from inside. The only word Officer Huang remembered hearing was “help” screamed several times. There was no handle on the outside of the apartment door. They began banging and then kicking the door. After numerous kicks, they heard about 15 seconds of noise on the inside of the apartment. As it turns out, the apartment door is locked by chains located on the inside of the door under plywood. After 15 seconds of that noise, the door was partially opened and the officers immediately pushed the door open, which knocked Mr. Pleasant down. Officer Muirhead took control of Mr. Pleasant.
5Officer Huang testified that he had never seen an apartment in such disarray. There was broken glass and broken furniture all over the floor.
6Officer Huang went to the bedroom which he was locked from the outside with numerous chains and locks. Inside the bedroom was C.B. Officer Huang’s evidence about the locks on the door, quite vital evidence in my view, was extremely vague and quite unreliable. Photos were not taken of those locks. The only photo in the area partially captures a lanyard hanging on the outside the bedroom door. Huang clarified that was the lock he was referring to when he spoke of numerous locks and chains. The lanyard had been fixed to a clasp on the other side of the door frame. Any lock from the outside is alarming and is still a lock, but his evidence about the locks and chains was surprisingly vague. Muirhead did not recall any locks on the door.
7Officer Huang unlocked the door, entered the bedroom and began to calm C.B. down. She made certain comments to him, which the Crown is not seeking to tender as part of this application. Huang saw scratches and bite marks on C.B.’s neck. Photographs were tendered which show what appears to be scratch marks on C.B.’s neck and a bit mark on her chest. She has other scratches on her body as well. A Centre for Forensic Science (CFS) Report reveals that Mr. Pleasant’s DNA was found on C.B.’s neck.
8Huang testified that C.B. was cowering and crying in the bedroom. Muirhead testified that C.B. was irate and screaming and had to be calmed down.
9Neither Pleasant nor C.B. appeared intoxicated to Officer Huang as he recalled.
10The officers placed Mr. Pleasant in custody and turned him over to other officers who arrived on scene. C.B. was taken to the police station. There, she met Officers Lee and Castell who took her to an interview room, where they conducted a videotaped interview which is the subject of this application. This was about an hour after the police arrived at the apartment.
The Statement
11Officers Lee and Castell conducted a video taped interview with C.B.
12Throughout this statement, which began with an oath and caution, C.B. was completely unfocused, repetitive and spoke over everyone, including the officer trying to administer the oath. It was hard to watch the statement given her manic and unfocused state. Whether her condition was caused by the trauma due to what she alleged, or a mental health crisis, or drugs, or a combination is unknown. But what is clear is she was unfocused, with her mind and words racing.
13For example, she kept repeating and speaking over the officers throughout, saying – it’s fucking bad – it’s fucking bad. The officers did their best to try to calm her down and have her focus. The officers contemplated bringing her to the hospital. As Officer Castell testified, C.B.’s answers were not direct nor focussed but she answered some questions. At one point, they took her out for a cigarette, and she was a little calmer after that. After the statement, they took photographs of her injuries. She was apparently calm at that stage, so they turned the video on, and she gave a calmer, more coherent account of some of the allegations she made in her initial unfocussed state. I will refer to that part of the statement as the addendum.
14PC Lee testified that it was hard for C.B. to remain focused during the interview. He described her statement as visceral, as if she seemed to still be in Mr. Pleasant’s apartment as she was describing the events. He did not think she was intoxicated. He did not smell any alcohol nor note glassy or watery eyes. He thought she had an operating mind and knew what she was doing. He had asked her if she wanted an ambulance.
15The officers did not agree with the defence suggestion that C.B. had a warped sense of reality. Had C.B. not been through what she alleged, her manic behaviour might have been attributable to being impaired or high, but they believed her behaviour was attributable to the trauma she suffered. The officers agreed that C.B.’s comments about Pleasant being a serial killer or they would find bodies were not true. I refer to their opinions only because much was made of that during cross-examination.
16Detective Castell is an officer with 14 years experience. She was in charge of Youth and Family Services police matters at the time. She is now with the Homicide Squad. She characterized C.B.’s statement as sort of stuck in a loop, which is a very good description. She was screaming and crying and appeared in emotional distress. It was difficult to get her to focus.
17Officer Castell believed C.B. understood what was being asked. She believed the loop was related to the crisis she was in rather than an inability to understand. She did not exhibit any obvious signs of intoxication. Castell would not have taken a statement if she thought C.B. was intoxicated. C.B. was frantic and panicked and in distress and crying and breaking down. Castell would not have continued the statement much longer if C.B. had not calmed down. Her behaviour would have caused Officer Castell concern regarding her coherence or lucidity were it not for the trauma she had just gone through and believed her behaviour was attributable to that trauma. She too rejected the defence suggestion that C.B. was disconnected from reality.
18Officer Castell testified that she did receive answers – not specific or pointed answers but she got answers.
19Eventually, Officer Castell put C.B. in touch with a mental health worker as she seemed to be in a mental health crisis and needed housing.
20It was clear that C.B. was experiencing some sort of crisis at the time of her statement. Whether that was due to what she alleged occurred, if it occurred, or some other reason is not certain. As a result, her statement, other than the addendum, was completely unfocussed, repetitive, scattered and appeared to be the product of someone in crisis and distress.
21For the majority of statement, it was very difficult to get a coherent account from C.B. of what occurred. The narration of events was completely disjointed and unfocused. At its very core, she says Pleasant assaulted her, choked her, bit her, tried to kill her and confined her. But the basic chronology of what happened and when is lacking.
22A few examples follow. At the very outset of the interview, C.B. began:
It’s bad it’s fucking it’s fucking bad it’s so it’s fucking bad.
23The officers tried to introduce themselves and C.B. continually repeated:
It’s bad. It’s fucking bad.
24The officer tried to read her a warning about the consequences of giving a false statement and C.B. replied:
This is fucking bad. Fucking bad.
25The officers tried to interrupt and ask her to focus but it continued, and it continued during the caution:
This guy tried to kill me man. He was choking me and throwing me around.
I fell asleep and woke up and it’s really fucking bad. I can’t tell you what he did. It doesn’t matter what he did
Q: When do you remember falling asleep C.B.?
A: I don’t even know. It’s not even about that. I don’t care that I got choked. I don’t care when I got choked, but I almost died. It’s fucked. It’s bad.
All I did was get choked.
He tried to kill me
We were drinking the three of us
26The officer kept asking who this third person was and C.B. gave scattered and largely unresponsive answers for the most part. She said she did not know; then said she was an Indigenous woman and she was there when the police were apparently at the apartment earlier. If the police were indeed there earlier, that was never confirmed or explained.
27When asked what happened after they began drinking, C.B. replied:
I don’t know. He just started acting up and fucking like his normal self and fucking I passed out and I wake up and I’m fucking. I didn’t even have a shirt on or anything and I don’t know where my stuff went and I’m trying to get out and then fucking he’s choking me to death he’s trying to kill me he’s trying to fucking kill me he’s trying to fucking kill me man I’m trying to get out so I was playing his wife and he’s like the cops come you better say anything don’t say anything he’s still choking me before just two seconds before you guys knocked on the door he’s fucking choking to kill me but it wasn’t even about choking me even if he’s choking me it wasn’t even about that it’s the it’s you where was fucking he’s real bad he’s real bad like fucking
The officers asked, You say you passed out? and she replied:
I don’t know he’s fucking choked a few times now and I’m out and I fucking now he’s trying to kill me he’s trying to kill me.
28She said she would have been killed if the police had not arrived.
29The officer asked if she could describe how he choked her, and she replied:
No I can’t. It was death. It was evil. I can’t. It was fucking it was I’m telling you it was something fucking wrong. I can’t explain it. I can’t explain it. I don’t even care choked me choke me all you want
30She then said she did not lose consciousness when he choked her as he would let go.
31She said he was a serial killer and they would find bodies buried.
32The officer testified that was not accurate.
33She said she was held hostage. The officer asked her to explain how she was held hostage. She replied:
It wasn’t even the hostage. Fuck – I felt death. Death. Death. Death. Death.
34The officer asked if she was allowed to leave the apartment. She replied:
No. But even still. No. Maybe. I don’t know. I just felt death. Death.
… I might have, I don’t know. But it fuck, I was playing girlfriend I don’t know but it was my fault. It was my fault. I don’t know cause of what it felt.
35She said she pretended to be his girlfriend or wife in order to not be choked. He kept telling her to say nothing if the police come. She kept saying he would have killed her had the police not arrived. And stated:
It’s something like off a fucking movie. It’s (inaudible and crying) It’s something like off a fucking movie like fucking it’s real evil it’s real evil it’s real fucking evil and it’s real fucking evil I’ve been choked I’ve been slapped I’ve been punched I had my ribs broken had my nose broke this is fucking really evil you don’t understand you’re don’t understand it’s real evil.
36At page 38, the following exchange occurred:
Officer - You said he threw things at you
C.B. - The evil. You don’t understand the evil. The death. The death. The death. I’m
Officer - Okay
C.B. - Telling you the death man
Officer - Okay, C.B., Do you know what he threw at you?
C.B. - I (inaudible) – he’s throwing all kinds of shit. Punched me. I don’t even know. I don’t even. I wasn’t paying attention cause I was (inaudible) worried about whether I was gonna live or not
Officer - Okay so he’s throwing things at you and he was
C.B.- No. I. you don’t understand. It’s a death. I did fucking
Officer – C.
C.B. - I can’t remember shit but I was just the death, the death, the death. I felt. I fucking thought and the death I felt I didn’t fucking pay attention
Officer – C.B.
C.B. - just the death I felt.
Officer - when he punched you, where did he hit you
C.B. - I don’t know. It’s just the death. The death I felt. I was so fucking scared. I was fucking frozen. I’m so scared. It’s the death I felt and I don’t even know what happened to me honest with you cause it it’s a death
37They then went out for a cigarette which calmed C.B. down somewhat.
38The officer wanted to know about this third person in the apartment and tried to question C.B. but she was hardly responsive.
39At pages 71-72, the officer repeatedly tries to get C.B. to focus on his question as to whether they were drinking and using drugs. She said, “Yes, he does use drugs.” When asked what he used, she replied: “I don’t know. Yes, he uses drugs, he uses.” The officer asked: “What did he use?” And the context of the questions, assuming she understood the context, was: What was used the day before? She replied: “We use alcohol and fucking meth, crack maybe. I don’t know what he uses.”
40The officer again tried to get an answer about the third person in the apartment:
Officer - So C.B. I want to be able to talk to this native woman can you
C.B. - She was there so I don’t know
Officer - You said she was on the couch
C.B. - Doesn’t matter she’s not gonna feel it if I didn’t feel it I’ve been (inaudible) Walter’s but fucking arguing with somebody kicked her out and I stuck up for him though he didn’t do anything she was kicking the door she’s not gonna feel it does does
Officer - Was she outside the apartment or inside the apartment
C.B. - I didn’t feel it - I didn’t feel it I didn’t feel it
Officer - Do you know her name
C.B. - No
Officer - What about a street name
C.B. - I don’t I don’t know but I just know that feeling you understand
Officer - Where does she hang out
C.B. - I don’t know
Officer - but you said she was on the couch right
C.B. - you don’t understand even this other person that tried you don’t understand
Officer - who’s the other person
C.B. - the evil the one whoever charged him you don’t understand it’s pure evil psycho evil I’m telling you murderous evil serial killer evil
41She said he kept biting her and holding her down so she could not move.
42After the statement, the officers took photos of C.B.’s injuries, which are an exhibit on this hearing. Apparently, the discussion was calmer. Therefore, 30 minutes later, the officers went back on camera and asked her to repeat what she had told them when they were taking pictures. Thereafter, she gave a much more coherent account of events.
43That can be seen at pages 76-83 of the statement which will be appended to this ruling. I will refer to this portion of the statement as an addendum.
44To conclude, in the addendum, C.B. gives a coherent account of being repeatedly bitten, choked and confined by Mr. Pleasant.
45Before turning to the legal issues on this Application, I add the following: C.B. has a criminal record which includes several break and enter charges and numerous administration of justice offences, such as failing to appear or comply with Court Orders. She has approximately 40 charges outstanding at the present time.
46C.B. would not leave her cell to come to court. She would not attend a video suite. She was aggressive with correctional officers and flooded her cell. Defence counsel points to those as some evidence of a mental health issue and erratic, inexplicable behaviour.
47From a prior motion, I was told the defence position is that there was a sexual relationship between Pleasant and C.B. and that which would explain the presence of his DNA.
Admissibility of the Utterances
48The Crown seeks to adduce the cries for help heard by the officers in the hallway as an excited utterance. The Crown seeks to adduce the video statement pursuant to the principled exception to the rule that hearsay is presumptively inadmissible.
The Cries for Help
49C.B.’s cries for help were heard by the officers when they exited the elevator.
50There are two potential bases upon which this evidence might be admitted. The first is as circumstantial evidence and the second as the spontaneous or excited utterance exception to the rule against hearsay. The officers’ evidence about what they heard when they exited the elevator is admissible as circumstantial evidence in this case. It is narrative in a classic sense and details the unfolding of events. The officers exited the elevator, heard cries for help and followed the cries. The evidence is relevant circumstantially as to that fact and gains force when one considers what the officers observed when they entered the apartment.
51With respect to the spontaneous or excited utterance exception, the Ontario Court of Appeal recently discussed this issue in 2019 in R. v. Nurse, where they quoted with approval Robins, JA in Khan explaining the rationale underlying the spontaneous exception, as follows, at p. 207:
…a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. [Emphasis added.]
52If the stress or pressure from an event which lead to the utterance would still be operating to the degree that one could safely discount the possibility of concoction, the statement would be admissible.
53In this case, I am satisfied on a balance of probabilities that the cries for help were made in circumstances where the stress and pressure of the situation was ongoing. She was in a locked room, injured, yelling for help. It will be admitted on both bases.
The Recorded Statement at the Police Station
Hearsay
54Hearsay is presumptively inadmissible.
55The Crown submits that it is admissible under the principled exception to that presumption. The Crown must prove on a balance of probabilities that the evidence is necessary and reliable. Necessity is conceded. This case is about whether the taped statement has sufficient threshold reliability to warrant its admission.
56In 2017, the Supreme Court of Canada refined the approach judges should take when assessing whether hearsay has sufficient threshold reliability to warrant admission at trial. If admissible, a trier of fact may then assess the hearsay, in the context of all the evidence, to determine whether and to what extent they will rely upon it (ultimate reliability).
57Bradshaw focussed on the question of establishing threshold admissibility on the basis of substantive reliability and narrowed the circumstances of when and how corroborative evidence can be used to assist in establishing threshold reliability.
58Given the importance of Bradshaw and the defence position that this new approach dictates that the recorded statement not be admitted, I will review that case in some detail.
59In Bradshaw, the police suspected one Mr. Thielen of committing two murders five days apart. They employed a “Mr. Big” ruse where they introduced an undercover agent to engage with Thielen. The agent successfully induced Thielen to admit the killings to him. Thielen told the officer that he killed one of the victims and Bradshaw killed the other victim. Thielen and Bradshaw then met. Unbeknownst to them, their meeting was recorded. At that meeting, Bradshaw admitted to the killing.
60Both men were arrested and charged with murder. Upon arrest, Thielen initially denied the killings but when he was told he had been the target of a Mr. Big operation, he confessed and said unnamed persons were also involved. The next day, he implicated Bradshaw by name. A few days after that, he participated in a six-hour video recorded re-enactment of the killings where he again implicated himself and Bradshaw.
61Thielen plead guilty to second-degree murder but refused to testify against Bradshaw. The Crown sought to adduce Thielen’s video re-enactment at Bradshaw’s trial under the principled exception, arguing that it was necessary and reliable. The evidence was necessary given Thielen’s refusal to be sworn. The trial judge found the video re-enactment met the test for threshold reliability and admitted it. Bradshaw was convicted of two counts of first-degree murder. The B.C. Court of Appeal overturned the ruling. On further appeal, a majority of the Supreme Court dismissed the appeal, holding the trial judge erred in admitting the video re-enactment. Justices Moldaver and Cote dissented.
Rationale Underling Presumptive Inadmissibility of Hearsay
62The majority noted that the reason hearsay is presumptively inadmissible was because it is often difficult for the trier of fact to assess the truth or accuracy of the hearsay statement. They noted that the truth-seeking function of a trial is predicated on witnesses giving evidence under oath or affirmation in front of the trier of fact where their evidence can be challenged in cross-examination. That process, the Court noted, gives the trier of fact the tools to test that evidence and assess its value.
63Hearsay is an exception to that approach. It does not typically allow for the testing of the declarant’s truthfulness, perception, memory or narrative recounting. These are the hearsay dangers and there are concerns that the trier of fact will give potentially unreliable evidence more weight than it deserves. This undermines the truth-seeking function of a trial. Hearsay should only be admitted where it presents such minimal danger and that its exclusion would impede the accurate fact finding.
64The Court emphasized the importance of maintaining the distinction between threshold from ultimate reliability.
65Threshold reliability is established where the tendering party proves on a balance of probabilities that the evidence is sufficiently reliable to overcome the hearsay dangers of the inability to test or probe the declarant’s perception, memory, narration of events and sincerity.
66Those dangers can be overcome by showing that there are adequate substitutes for testing the truth and accuracy of the hearsay statement (i.e. procedural reliability) or where there are sufficient circumstantial or evidentiary guarantees that the statement is inherently reliable (substantive reliability).
67Procedural reliability is usually established where the evidence is taken under oath, is recorded on video and, most often, where some form of testing through cross-examination occurs, either at a preliminary hearing or at trial in the case of a recanting witnesses. These conditions enable the trier of fact to rationally evaluate whether the hearsay statement is true.
68The majority held that substantive threshold reliability is established where the tendering party proves that the material part of the hearsay statement, not the whole statement, is unlikely to change under cross-examination such that cross-examination would add nothing to the trial and where even a skeptical observer would say that the statement is truthful.
69The standard for admission based on substantive reliability is and should be very high; hence the use of the term circumstantial “guarantee” of reliability. While that is a high standard, absolute certainty is not required.
70When determining threshold reliability, the Court can consider the circumstances of the statement and any evidence that corroborates or conflicts with the statement. That corroboration itself must be reliable. Further, and this is critical, a trial judge can only rely on corroborative evidence in this assessment if it shows, when considered as a whole, that the only likely explanation for the hearsay statement is the declarant’s truthfulness or the accuracy about the material parts of the statement.
71To be admissible, corroborative evidence must assist in overcoming the specific hearsay dangers in the case. It will do so only if it shows that the only likely explanation for the material aspects of hearsay statement is its truthfulness or accuracy. If alternative explanations could have been probed or elicited in cross-examination, the hearsay dangers persist and the corroborative evidence should not be admitted in the threshold analysis. Corroborative evidence assists in establishing substantive reliability if it demonstrates that alternative explanations for the hearsay statement are rendered unavailable. To be admissible, the circumstances and corroborative evidence must substantially negate the possibility that the declarant was untruthful or mistaken.
72Corroborative evidence that is equally consistent with truth or accuracy as well as another hypothesis is of no assistance.
73The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination on the specific point, not cross-examination in general. At the threshold stage, the corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers. To overcome those dangers and establish substantive reliability, it must show that the material aspects of the hearsay statement are unlikely to change during cross-examination.
74On rare occasions, procedural and substantive reliability can work in tandem to establish threshold reliability, but care must be taken to not allow this combination to result in the admissibility of hearsay where specific hearsay dangers have not been fully addressed.
75The Court directed trial judges to engage in the following four step analysis in determining admissibility.
Identify the material aspects of the hearsay evidence;
Identify the specific dangers raised by the evidence in the case;
Based on the circumstances and the dangers, consider alternative, even speculative explanations for the statement;
Determine whether, in the circumstances, the corroborative evidence rules out these alternatives such that the only remaining likely explanation is the truth of the hearsay statement.
76Applying that approach to the video re-enactment in Bradshaw, the majority held that the specific danger at issue in Thielen’s video re-enactment was whether he was truthful in implicating Bradshaw. The Court held that there was nothing in this circumstances of the case that assisted in establishing the truthfulness of Thielen’s utterances implicating Bradshaw. His knowledge of the specifics of the crime, including its location and the weather could be attributed to his own involvement and did not assist in establishing the truth of his statement implicating Bradshaw.
77Moreover, there were also concerns about the fact that Thielen had given contradictory prior statements and was an “unsavoury” or Vetrovec witness.
78With respect to Bradshaw’s own admission that he participated in the killing, captured on tape, that did not assist in establishing the reliability of Thielen’s statement as there were reliability concerns with respect to Bradshaw’s admission as it arose in the context of a Mr. Big operation. Therefore, the Court held the corroborative evidence did not substantially negate the possibility that Thielen was untruthful when he implicated Bradshaw, which after all is the material part of the statement. Given that the trier of fact could not adequately test Thielen’s hearsay statement, it did not meet the test for threshold reliability and was excluded.
79Justices Moldaver and Cote, in dissent, criticized the majority position, stating that they were effectively discarding the approach of relying upon both procedural and substantive threshold reliability, creating an exceptionally high standard before corroborative evidence could be used and were designing a test that created a threshold within a threshold.
80Returning to this case, and employing the four-part analysis mandated by the Court.
1) Identify the material aspects of the hearsay evidence
81In essence, within C.B.’s statement, and particularly the addendum, the material aspects of the hearsay are that C.B. was choked, assaulted, bit, confined and threatened by Wallace Pleasant.
2) Identify the specific dangers raised by the evidence in the case
82Given the circumstances, and the fact that C.B.’s credibility and reliability cannot be probed and tested, the hearsay dangers in this case are whether she was truthful, misperceived the events and whether she could accurately recount or narrate the events she says occurred.
3) Based on the circumstances and the dangers, consider alternative, even speculative explanations for the statement
83Alternative and speculative explanations are that C.B. lied about being assaulted, bitten, choked and locked in the room. Or, that she was either high or suffering a mental health crisis such that she may have misperceived the events that took place and inaccurately recounted them.
4) Determine whether, in the circumstances, the corroborative evidence rules out these alternatives such that the only remaining likely explanation is the truth of the hearsay statement
84The corroborative evidence; namely the cries for help, the visible injuries to C.B.’s neck and chest, the accused’s DNA and the evidence that she was in a locked room, considered as a whole, render her statement that she was assaulted, choked, bit and locked in a room, the only likely explanation for that statement. The alternative scenarios, while theoretically possible, are not likely ones. She did have a bite mark on her chest and scratch marks on her neck. The accused’s DNA was on her chest. She was found in a locked room. Her statement that those things occurred, being true is the only likely explanation before me.
85The very essence of her statement, the bite, or the locked room in particular are corroborated to the point that the only likely explanation for that statement is the truth of those facts. Cross-examination would not alter the fact that she has a bite mark on her chest, that the accused’s DNA is on her chest and that she was in a locked room. The circumstances may be another issue but that goes to ultimate reliability as opposed to threshold reliability.
86For these reasons, the utterances in questions are admissible.
Released: April 30, 2021
Signed: “Justice H. Borenstein”
Addendum
(referencing paragraph 43)
C.B.: Yeah.
CASTELL: Uh, throughout those photographs, uh, you identified some other injuries.
C.B.: Yeah. So like my whole...
CASTELL: Yeah.
C.B.: ...my legs, my butt.
CASTELL: Okay. And there's a bite mark on your chest as well.
C.B.: On the chest (inaudible), yeah.
CASTELL: Yeah. A bite mark...
C.B.: Bite marks all over...
CASTELL: ...and some scratch...
C.B.: ...I don't know where they are exactly. Like a whole bunch of them maybe but...
CASTELL: Yeah. So I just...
C.B.: ...he took pictures.
CASTELL: ...wanted to restart the video to see if we can have a further discussion about, uh, about that.
C.B.: Okay.
CASTELL: Uh, can you tell me what you had mentioned to me while we were taking the pictures (inaudible)?
C.B.: Um, just basically like I didn't even know some of my injuries 'cause I was so freaked out about like-, just fucking thing and I was getting murdered and stuff. Like I didn't...
00:01
CASTELL: Mm-hmm.
C.B.: ...even-, was thinking about my injuries and like I think I got some here too. But the bites, I got bites all over. He took pictures and like I didn't want him to bite me.
CASTELL: Mm-hmm.
C.B.: He just kept biting me and like holding me down so I couldn't move and stuff.
CASTELL: Mm-hmm.
C.B.: And like I didn't leave or didn't call the police or anything 'cause like it was just, I was just an awkward situation. Like it wasn't-, it didn't get-, like-, I don't even know. Like that was just-, and it, and it was outside too right, in the middle of the night and where am I supposed to go and I-, I di-, I didn't le-, want him to do it and obviously I told him-, he kept-, every time I did it-, I kept telling him to stop. I don't want him to do it. I kept pushing him off me. He kept holding me down, right? And holding me down. And like just the way it was it was kinda like it was abusive, but it was like I didn't-, but the way he was holding me down then he'd be all nice all of a sudden and give you a cigarette and maybe a drink and like. So I didn't want it to happen but like he just made it feel like it was okay-, like not that it was okay but-, like I didn't fucking want to complain too much 'cause like I, I had to sleep for the night...
CASTELL: Mm-hmm.
C.B.: ...you know. And, um, at that point that didn't get progressed. Um, and so-, like I didn't really even want to be there. And I didn't want him to do it. I kept telling him to
00:02 stop like it's hurts. It's still hurting.
CASTELL: So at what point-, so you mentioned you got there around one a.m.
C.B.: 'Cause there were different times, right, when he did it, right?
CASTELL: Okay.
C.B.: So it was kinda progressive.
CASTELL: Okay. So when did...
C.B.: So...
CASTELL: ...the biting start?
C.B.: Um, t-, I don't even know 'cause I didn't even know how as I was there pla-, I think I showed-, when I get there like yesterday maybe 1:30. I think it's-, d-, it's probably today. The course of today. Or yesterday. I ge-, I showed up the day before...
CASTELL: Mm-hmm.
C.B.: ...it's probably the course of from today or yesterday to today. And previous to that I had showed up and, um-, what happened when I first got up? Everyone was good and then friggin I don't know it just kinda got-, he started biting me, he started holding me down. Little things that were o-, kinda off, um, he had just got arrested for the, the, the, uh, forceable confinement and I was kinda sticking up for him 'cause like I known him for years and I didn't expect it from him. And then all the stuff that happened like, honest to God, I thank you guy like you guys came because like I felt real evil. And I thought I was gonna die and he
00:03 kept choking me and I tr-, called out and I couldn't. He bust up the lock so I couldn't get out the door.
CASTELL: Mm-hmm.
C.B.: It's not even like he usually does 'cause I, I know-, why I even felt like was okay before with him locking the door, but he used, used to lock with a lock. But this time the whole fucking thing was gone off and he was throwing stuff all over the place and I was trying to calm him down and then, then all of a sudden he just started choking me and-, I felt like I was gonna die. I really felt like I was gonna die and he kept choking me to the point when I was gonna pass out and then he would let me go. And I just-, I really felt like I was gonna die. I just felt pure evil. I never felt that before and I was like how can I feel that from somebody I know for so long?
CASTELL: Okay. So C.B., when he was biting (inaudible)...
C.B.: And then when it's-, but through the process of this he just kept biting me.
CASTELL: Okay.
C.B.: Right? And like I kept telling him to stop, get off me, and he would just bite me and just stay there and obviously I have to like listen and behave because I don't-, I-, it's hurting. I want him to get off me, right?
CASTELL: Mm-hmm.
C.B.: So like I just have to listen to him and fucking just behave because him to not bite me, right? So and then he just
00:04 doing till cro-, for the process of the night, right, so it wasn't just like whenever or what happened it was kinda the process of the night and then when I try to move away he'd be-, once he would stop biting me I'd try to move away and get up and go and then he just, he just hold on to me so I couldn't go anywhere. And then like a couple of times I tried to-, actually a few times through the night I did try and leave, and he just fucking held me there. Like and then sit and he would bite throughout the night. Like just do stupid stuff. Like I got bites. I woke up, I passed out and woke up and then my shirt was off and like I got bruises on my arms, bruises on chest, bruise on my legs. Like I don't even know like and I just couldn't leave so...
CASTELL: And was he biting you before or after you woke up?
C.B.: He's kinda biting me all through.
CASTELL: Okay.
C.B.: I don't know if he bit me when I was sleeping too because f-, I have b-, he might have bit me when I was sleep because I didn't have that there. That was when I was sleeping. I woke up with no shirt on.
CASTELL: Mm-hmm.
C.B.: So like I don't how they got there till I-, I ne-, I don't-, like it must have been when I was sleeping. But I passed out 'cause I-, he had given me so much alcohol and stuff. I don't even know how I passed out, honestly. Like I don't know what happened.
00:05
CASTELL: Now the bites and scratches on your buttocks, when did you get those do you know?
C.B.: Um, they were probably just throughout the night 'cause there were different times. Like I tell him to s-, don't bite me, don't touch me, don't (inaudible). Leave me alone. And then he would just keep doing it and, and then hold me down so I couldn't go anywhere. And then like obviously I don't want him to bite me no more so like I just, I just played nice, right? And I'm like okay I'll just get through the night. And like I just-, it did happen a few times but fucking this, I don't know. This must have been when I was K.O.'d. So I didn't even know what kind of stuff he gave me so.
CASTELL: Okay. Now-, so the bites on your, uh, backside you said you, you're not sure when you got those?
C.B.: The bites on my buttocks, yeah. They were, they were just the kind of, um, throughout the night. There were different times, so it wasn't just one set time. 'Cause he would just bite and fucking I'd, I'd scream and let go like you're hurting me.
CASTELL: Mm-hmm.
C.B.: And then, uh, he would just like-, he would just hang on there for a minute and then just be quiet because I like I want-, all I want is to let him go-, to let me go. And then
00:06 friggin after he, he let, let go of biting, I tried to move away and leave, and he was ch-, holding me down. And then he tried talking nice and give me cigarettes and all kinds stuff like that and like I just, I just stayed. I don't know why I stayed. But while I was actually to getting up to go every time and he just hold me down. You know...
CASTELL: (Inaudible.)
C.B.: ...after he bit me. So...
CASTELL: When he bit you were you're pants on at the time?
C.B.: Um, I think I had long-, just long johns on.
CASTELL: Okay.
C.B.: Just long johns, yeah.
CASTELL: And did you...
C.B.: And this I don't know. This must have been when I was passed out 'cause I was on the floor and I was pa, passed out and I had clothes on.
CASTELL: Mm-hmm.
C.B.: When I woke up I didn't have clothes on, and I had bites so. I don't know.
CASTELL: Okay. So he's-, in terms that you had your long johns on but...
C.B.: Yeah.
CASTELL: ...so was he biting you through your clothes or did he pull your, uh, long johns down.
C.B.: Um, I think once he might have pulled them down. And the other time-, one time he-, I think he bit through the long johns and one time he bit through the pants.
CASTELL: It's-, the pants that you had on top of the long johns?
C.B.: Yes. I think one time he did. I'm not sure because he was
00:07 kinda randomly kept doing it and all I was concerned about was just like-, 'cause he was clenching on to me and I was just was more concerned about just staying still and le-, and make like (inaudible) with him, let me go you know what I mean.
CASTELL: So when I was taking the pictures I noticed you had your jeans on...
C.B.: Yeah.
CASTELL: ...and they're a black kinda that's...
C.B.: That's what it is...
CASTELL: ...what you refer to as...
C.B.: ...yeah.
CASTELL: ...long johns.
C.B.: This one, yeah. This one.
CASTELL: Okay.
C.B.: (Inaudible.)
CASTELL: And how-, do you remember how your pants came off?
C.B.: My pants?
CASTELL: Yeah, your jeans.
C.B.: Um, I don't remember.
CASTELL: Okay.
C.B.: I must have (inaudible) try and go to bed.
CASTELL: Okay so...
C.B.: Um...
CASTELL: ...you have your long johns on and at that time what did you have on up top?
C.B.: Um, I had clothes. I don't remember. I know I had shirt, and I a undersh-, oh, look I don't-, see I had all this. This I had on but when the police came to get me I didn't have no clothes on. This, I just had pants. Like how did that happen?
CASTELL: Okay. Alright. I think in that regard those are all my question. Uh, do you have anything? Okay. So we'll just conclude this again at 12:06 p.m., uh, so on Tuesday January the 5th. That concludes our secondary interview.