Her Majesty the Queen v. V.O., 2021 ONCJ 709
ONTARIO COURT OF JUSTICE
Date: June 15, 2021 Court File No.: Brampton 19-2360
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
V.O.
Before: Justice Hafeez S. Amarshi
Application: To Admit Hearsay Evidence Written reasons released on: June 15, 2021
Counsel: A. Simitsis, counsel for the Crown E. Brown, counsel for V.O.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.
Reasons for Ruling
A. Introduction
1V.O. is charged with three counts of sexual assault. The allegations commenced when A.M. was 17 years old and continued after she turned 18 years old.
2The Crown has made an application for the admission of two out of court statements made by the complainant to be admitted as proof of the truth of their contents. The first statement is an utterance made by A.M. to a visiting life skills coach at her high school on February 21, 2019. The Crown wishes to tender the statement pursuant to the common law res gestae exception. In the alternative the Crown proposes the utterances be admitted under the principled approach to the admission of hearsay evidence.
3The Crown further seeks the admission of A.M.’s videotaped statement to police.
4The defence reasonably conceded that necessity has been established. The complainant left Canada on June 27, 2019 and she is believed to be in Nigeria. Her refugee claim was withdrawn approximately two months earlier on April 23, 2019.
5Multiple attempts made by police to contact A.M. have been unsuccessful.
6Earlier I advised the parties orally that the videotaped statement of A.M. is to be admitted. I am satisfied that threshold reliability has been established in this case and the statement has adequate features of substantive and procedural reliability.
7These are the reasons for this conclusion. I will also address the Crown’s application to admit utterances into evidence as a res gestae exception to the hearsay rule.
B. Procedural history
8At the outset of the trial, the parties agreed that the Crown’s hearsay application and the trial proper proceed by way of a blended hearing. [1] As part of the application the Crown called two witnesses – Nicolle Viera, a program facilitator at A.M.’s high school, who the complainant disclosed acts of sexual abuse and Cst. Anderson McDonald, an officer with the Special Victim’s Unit of the Peel Regional Police Service. The defendant did not testify on the voir dire.
9At the outset of this trial, the Crown filed “Agreed Facts/Documents.” It contains a three-page agreed statement of facts and a number of supporting documents. [2] The Agreed Statement of Facts is in large part derived from information contained in these documents.
10The following admissions were made and conceded for the purposes of trial – date, time, jurisdiction, identity and continuity of exhibits.
C. Evidentiary Record
11The following background is a summary of information contained in the Agreed Statement of Facts.
12V.O. is charged with three counts of sexual assault. The complainant is A.M. who lived with the defendant and his family in his home in Brampton.
13A.M. is a star tennis player. In 2015, the complainant lost her mother under tragic circumstances in Nigeria. Her uncle, D.N. became her guardian. In January 2018 she moved to Florida to attend IMG Academy. She was brought to Florida by her uncle. The defendant who is a training and strength coach is affiliated with IMG and had been working with the complainant in Nigeria since 2017.
14In June 2018 it is alleged that D.N. physically abused the complainant and the defendant was awarded temporary custody. [3]
15On September 5, 2018, A.M. came to Canada as a minor with her guardianship documents showing V.O. as her guardian. She applied for refugee status.
16In Canada she lived with the defendant, his wife and two children in Brampton. The complainant’s bedroom was in the basement.
17On February 21, 2019, the complainant alleged sexual abuse by the defendant. She revealed the abuse to Nicolle Coco LaRain Viera, a life skills coach that runs after school programs at A.M.’s high school. The Vice Principal of the school was alerted, and police called.
18The complainant provided a videotaped statement to police later that afternoon. That evening she completed a sexual assault examination kit at Chantel’s Place. [4] Both external and internal vaginal swabs were collected, and samples of DNA collected.
19A DNA warrant was executed and a sample from the defendant was obtained and compared with samples taken from the complainant’s vaginal swabs. The samples were examined at the Centre of Forensic Sciences (CFS) which confirmed the presence of semen. The CFS report concludes that the defendant cannot be excluded as the source of the male DNA profile from the complainant’s vaginal swab. [5]
20On April 23, 2019, A.M.’s refugee claim was withdrawn with the Immigration and Refugee Board.
21On June 27, 2019, the complainant boarded a flight from Montreal to Frankfurt, with a connecting flight to Lagos Nigeria.
Evidence relevant to the hearsay application
(i) Nicolle Viera
22Ms. Viera is a program facilitator and she has a background in developing programming for girls focused on enhancing self-esteem.
23Ms. Viera has been working with schools in Peel Region for the last 10 years. Starting in October 2017, she was working with students at a Brampton high school where the complainant attended school. She initially met A.M. when she was facilitating a dance routine.
24She testified that on February 21, 2019, she had come to the school to facilitate after-school programming for Black History Month. Ms. Viera says she was approached by friends of the complainant, who told her that A.M. wanted to tell her something. She described seeing A.M. in the school hallway and that she was in tears.
25She sat down with the complainant and explained that before they spoke further, she had a duty to alert school authorities if she believed A.M. was in danger.
26Ms. Viera testified that the complainant told her of a plan she devised with a woman she calls “mom” to set up a camera to catch a person she called “Mr. V.,” in the act of sexually abusing her. That the complainant had set up a video camera in her room and that Mr. V. had abused her in the past starting when she was 17.
27A.M. told Nicolle Viera that during the night that had just passed, the defendant came into her room and had sexual intercourse with her while she pretended to be asleep.
28The complainant explained she called “mom” earlier that day to see if there was any footage of the incident and learned there was no recording because the camera was either not charged or not working properly. After learning this, A.M. told Ms. Viera that she became upset and started crying, that she was distraught. Her friends who were consoling her encouraged her to speak to Ms. Viera.
29When asked about the complainant’s demeanour, Ms. Viera stated she was crying and shaking, that her head was down, and she avoided eye contact as if she were scared. However at other times she would get angry, “And was kind of a bit of a roller coaster because there was hesitance at first and then she was crying and then the information would rush out and then she would put her head down and then she would continue telling me with some anger.” She testified that she did not guide A.M. but just sat and listened and let the complainant tell her story. Ms. Viera concluded that A.M. did not appear to be under the influence of drugs or alcohol.
30Ms. Viera took the complainant to speak with Gina Renda, the school’s Vice Principal. She later learned that police attended the school to speak with the complainant.
(ii) Cst. Anderson McDonald
31Cst. McDonald has been a police officer for 12 years. He testified that at approximately 4 p.m. on February 21, 2019, A.M. attended at his office at the Special Victim’s Unit. He described her demeanour as quiet and that her eyes were red, and she looked like she had been crying. She did not appear to be under the influence of any drugs or alcohol.
32He conducted a videotaped interview with the complainant. The statement was not taken under oath. Officer McDonald does tell the complainant at the outset of the interview that she tell the truth. She responds “mm-mm” and nods her head indicating yes. Despite this short exchange, Cst. McDonald testified that he was satisfied that she understood the importance of telling the truth.
33When asked if the complainant understood the seriousness of the situation the police were investigating, Officer McDonald replied he believed so because she had earlier interacted with uniform police officers and then himself. He testified that no-one put pressure on her to provide a statement that afternoon.
34The interview lasts approximately 50 minutes.
35According to Officer McDonald after the interview was completed, Michelle Ward, the defendant’s common-law spouse, attended at the police division. She handed over several items including an audio recorder, a video recorder, a memory card, underwear and a bedsheet to police. [6]
(iii) A.M.’s videotaped statement
36In her videotaped statement A.M. described setting up a camera in her room the previous night and going to sleep. She described the defendant at some point penetrating her with his finger and having intercourse with her. That she was pretending to be asleep.
37The next morning, she took the camera with her to school. She met with the defendant’s spouse – Michelle Ward, who she referred to her as her guardian, outside the school during her lunch period and handed her the camera. She subsequently learned that afternoon from Ms. Ward that the camera only began taping from 5 a.m. onwards. She says she started freaking out.
38In her statement A.M. described another incident in January 2019, in the basement when she says the defendant penetrated her with his finger and attempted to have intercourse with her.
39When asked by Officer Anderson when the first time something happened involving the defendant, she recounted that on November 11, 2018, she was in the basement, getting ready to go swimming and was in her bathrobe. [7] The defendant’s dog was in the basement and she was afraid and climbed a chair. The defendant helped her down from the chair and while assisting her put his hand under bathrobe and touched her buttock.
D. Legal Principles
40The Crown seeks to admit A.M.’s videotaped statement for the truth of its contents to establish that the defendant sexually assaulted the complainant.
41The statement is hearsay and presumptively inadmissible. The exclusionary rule exists to guard against the trier of fact affording such evidence more weight than it deserves.
42However, as the Supreme Court in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, noted, the goal of the criminal justice system is truth seeking and therefore if hearsay concerns can be sufficiently overcome, then the trier of fact should not be denied the use of the evidence. [8]
43Under the principled exception, hearsay can exceptionally be admitted into evidence when the twin criteria of necessity and reliability are satisfied on a balance of probabilities.
44The defence has conceded necessity. It is a reasonable concession in the circumstances. The complainant is no longer in Canada and has withdrawn her application for refugee status. She left the country on June 27, 2019, via Montreal and transferring in Germany for a flight to Nigeria. Cst. McDonald testified to making extensive efforts to try and contact her in Nigeria but was unsuccessful.
Threshold Reliability
45To determine whether a hearsay statement is admissible, a trier of fact is to assess the statement’s threshold reliability. Ultimate reliability of a statement relates to the weight the trier of fact gives when considering all of the evidence in the case. Threshold reliability is established when hearsay, “is sufficiently reliable to overcome the dangers arising from the difficulty testing it.” [9] These dangers arise notably due to the absence of contemporaneous cross-examination of the declarant. [10] Where a witness is unavailable for cross-examination, as is the situation in this case, the demand for threshold reliability is understandably high.
46According to the Supreme Court in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paragraph 26, when determining whether a hearsay statement is admissible, the trial judge must first identify the specific dangers presented by the statement and consider any means of overcoming them. These dangers relate to difficulties in assessing the declarant’s perception, memory, narration or sincerity.
47The Court goes on to explain that threshold reliability can be established by showing that 1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or 2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). [11]
48Procedural reliability considers whether, "there are adequate substitutes for testing the evidence." [12] These substitutes must provide the trial judge with a satisfactory basis to evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards relevant to assessing procedural reliability include recording of the statement, the presence of an oath, and a warning about the consequences of lying.
49In addition, a hearsay statement may be received as admissible evidence if the statement is deemed inherently trustworthy, in other words if substantive reliability is established. In this determination the trial judge can consider the circumstances in which the statement was made and evidence that corroborates or conflicts with the contents of the statement. [13]
50Although the standard for establishing substantive reliability is high, it need not be established with absolute certainty. The trial judge must be satisfied that there are sufficient circumstantial guarantees of trustworthiness to conclude that the only likely explanation of the hearsay account is that it is true. [14]
51Procedural reliability and substantive reliability are not mutually exclusive and these two approaches to establishing threshold reliability may work in tandem and in some circumstances complement each other. [15]
52The Court in R. v. Bradshaw further discussed the use of corroborative evidence to establish threshold reliability of a hearsay statement. At paragraph 44, Karakatsanis J. states (internal citations removed):
A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
And further at paragraphs 45 and 47:
First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement. Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on.
Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing the admissibility of hearsay evidence, "the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility." Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.
53In considering whether corroborative evidence is of assistance in the substantive reliability inquiry, the trier of fact should:
(i) Identify the material aspects of the hearsay statement that are tendered for their truth. (ii) Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case. (iii) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement. (iv) 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. [16]
E. Position of the Parties
54The Crown argues that there is compelling and reliable corroborative evidence that is directly related to the truthfulness and accuracy of material allegations contained in A.M.’s video statement such that the out of court statement should be admitted under the principled approach to hearsay. Ms. Simitsis points to the following corroborative evidence that support’s the complainant’s version of events and leads to the only available inference she argues – that A.M. is being truthful when she says the defendant sexually assaulted her:
(i) DNA evidence – the defendant’s semen is located on vaginal swaps taken from A.M. (ii) Video recorded evidence – an adult figure is observed on video in the basement while A.M. is sleeping (iii) Audio recorded evidence – conversations surreptitiously recorded by A.M.
55The defence argues in his written materials that the Crown has established neither procedural nor substantive reliability. That A.M. was not under oath when she gave a videotaped statement and she was not subject to cross-examination. Further, the statement was not taken “contemporaneous with the events alleged.” In addition, Mr. Brown submits that the complainant’s statement is lacking any strong indicia of reliability and this court should be concerned about the possibility of concoction.
F. Analysis
Substantive Reliability
56The first step to determine the potential value of corroborative evidence is to determine the material aspects of the videotaped statement that are tendered for their truth. In this case A.M. alleges the defendant sexually assaulted her on three separate occasions.
57The second step of the analysis requires this court to consider specific hearsay dangers implicated by the admissibility of A.M.’s video recorded statement. These include sincerity, perception, memory and narration, which I have considered in my analysis.
58At step three under Bradshaw, I am required to consider alternative, even speculative explanations for the hearsay statement. In this case the defence suggests fabrication or concoction on the part of A.M. The specific hearsay danger being the sincerity of the complainant.
59In the final analysis I must determine whether the corroborative evidence demonstrates that material aspects of A.M.’s statement is unlikely to change under cross-examination. In other words, whether I am satisfied that the only likely explanation for the complainant’s statement in light of the corroborative evidence is that she has truthfully and accurately described what occurred to her in her videotaped statement, specially that she was sexually assaulted by the defendant.
(i) DNA evidence
60The DNA evidence provides corroborative evidence to support the truthfulness of the complainant’s statement. The DNA evidence is obtained on the same day of the alleged sexual assault and supports material aspects of the complainant’s statement. That is, the defendant came to the basement where the complainant was sleeping during the early morning hours of February 21, 2019, and had sexual intercourse with her.
61Swabs taken from the complainant’s external genitalia area and vaginal swabs confirmed the presence of semen. Only one DNA profile was obtained, other than the complainant and it belonged to the defendant. The presence of sperm on the vaginal swabs is consistent with penetrative sex as described by A.M. [17]
62Clearly there was sexual activity that occurred between the parties. The defence has conceded Mr. V.O. was her guardian [18] and therefore consent is vitiated pursuant section 273.1(c) and not an operating consideration in this analysis.
63I am of the view that this evidence alone is sufficient to establish substantive reliability. That the DNA evidence is corroborative of a material aspect of the Crown’s case – that there was sexual contact between A.M. and Mr. V.O..
64I will however consider, in the alternative, the other corroborative evidence tendered at the voir dire in the event that s. 273.1(c) is not applicable. At this stage of the analysis I can consider the broader evidentiary record surrounding the circumstances of the alleged sexual assaults. [19]
65In this case I also consider the video and audio evidence tendered by the Crown. I also consider the act of surreptitiously setting up the video recorder in the basement which supports A.M.’s account that she was seeking proof of the sexual assaults as probative. When assessing the evidence tendered at the voir dire in its totality on a balance of probabilities it is not plausible that a consensual sexual encounter occurred.
(ii) Video evidence – adult figure
66The Crown tendered a video recording obtained from a memory card provided to police by Michelle Ward. The video evidence consists of nighttime recordings in January and February 2019. The camera on all occasions is positioned on the ground facing the complainant’s mattress.
67On February 16 at 5:20 a.m. an adult figure is observed in the recording, which appears to be male. [20] He leans down and touches A.M.’s face with his left hand. The complainant is sleeping. The action is short and approximately 15 seconds later the figure exits the view of the video camera. According to the Agreed Statements of Facts there are four individuals outside of the complainant that live in the home – the defendant, his wife and two children. Although the identity of the adult figure is unclear it is reasonable to conclude that it was Mr. V.O., the only male in the household, who was lurking in the complainant’s room. [21]
68The video evidence corroborates an important detail in A.M.’s account. That the defendant would come into her room at night, when the complainant says she was sleeping or pretending to be asleep. The video does not reveal a sexual assault but shows Mr. V.O. to be lurking in the basement and touching the complainant while she is sleeping. This evidence alone is not sufficiently corroborative, but when considered with the other evidence tendered at the voir dire supports material aspect of the complainant’s statement.
(iii) The act of setting up the video recorder and the participation of Michelle Ward
69A.M. says in her statement that she set up a video camera in the basement in order to have proof of the defendant’s nighttime assaults in the basement. This she says was at the urging of Michelle Ward.
70She describes the active participation of Ms. Ward in securing the camera and ensuring it is working. [22]
71This detail of the statement is corroborated by video evidence. On January 6, 2019, starting at 10:47 a.m. Michelle Ward can be observed to place a video recorder on the ground behind a storage tub. [23] The placement of the camera is directed to the area where the complainant lays her mattress down to sleep.
72Further, at 11:18 a.m. Ms. Ward can be observed to be setting up the video camera. [24] A.M. is standing directly behind her watching which suggests some level of cooperation or agreement between the two.
73It is not plausible had the sexual relations been consensual that the defendant’s spouse and A.M. would act in this coordinated fashion to obtain recorded proof of Mr. V.O.’s activities. Further, it would have been highly unlikely for A.M. to reveal the abuse in the first instance to Ms. Ward if the sexual encounters with her spouse were consensual.
(iv) Officer McDonald receives the video camera from Michelle Ward
74In her statement A.M. says she went to school with the video recorder in her backpack on February 21. She says she called Ms. Ward and they met at a gas station near her high school over her lunch period and that she handed over the video recorder.
75This portion of A.M.’s statement is corroborated by Officer McDonald who testified that Ms. Ward attended the police division that same day on February 21 with a video recorder and a memory card. [25] The memory card included a video file recorded that morning starting at 5:29 a.m. This confirms a very recent transfer of the video recorder to Michelle Ward from A.M. as indicated by the complainant in her video statement. It also supports A.M.’s account that she learned the recording commenced late – from 5 a.m.
(v) Audio recordings
76The Crown argued that the content of the audio recordings is corroborative of A.M.’s account of acts of sexual assault.
77In the audio recording, which I have concluded is a conversation between Mr. V.O. and the complainant, [26] A.M. says, “don’t touch me,” to which the defendant responds, “I touch you all the time.” And later in the audio recording:
V.O.: I touch you all the time A.M. That’s disgusting V.O.: How’s it disgusting? You’re so silly. What’s disgusting about that? A.M. Everything
78This exchange however is not conclusive, and subject to differing interpretations. The substance of the audio recordings does not rule out alternative explanations or inferences that can be drawn in the circumstances as the Crown fairly acknowledged. The conversation is untethered to any additional context that would allow this court to properly evaluate its value as a corroborative piece of evidence.
Procedural Reliability
79Although A.M.’s statement was recorded on video, it was not taken under oath. Further there was no warning given by officer McDonald about the consequences of lying, although the officer urged A.M. to tell the truth at the outset of the interview.
80Such surrogates assist the trier of fact in evaluating the truth and accuracy of a witness statement. That is, they operate as a substitute for the traditional method for testing evidence through contemporaneous cross-examination - which is lacking in this case. [27]
81Despite the absence of an oath, there are factors that enhance the procedural and substantive reliability of A.M.’s video recorded statement. These include - the use of open-ended and non-leading questioning posed by Officer McDonald. [28] The timing of the statement, which is within 24 hours of the alleged third sexual assault. [29] An acknowledgement on the part of A.M. that she tell the truth. Further, I am satisfied she understood the seriousness of the situation. Prior to her interview at the police division she was met by two uniform officers at her high school. She was introduced to a third officer – Cst. McDonald who advised her prior to her statement that the interview room is audio and video recorded. She was aware that police were collecting evidence.
82I was able take into account A.M.’s demeanour on the video recording, although I am cautious not to place undue reliance on this factor alone. I observed A.M. to be forthcoming and responsive to the inquires put to her by Officer McDonald. Further, she was lucid and did not appear to be under the influence of any substances - a factor that could undermine her ability to observe and recall events.
83I accepted Cst. McDonald’s evidence that her statement was voluntary and no-one put pressure on her to provide a statement to police that afternoon.
Prejudice versus Probity
84This court retains a residual discretion to exclude hearsay evidence if its prejudicial effect outweighs its probative value. [30] The admission of A.M.’s videotaped statement may assist this court in determining whether the allegations are proven beyond a reasonable doubt. Unfairness accrues to an accused only where the evidence admitted is gravely prejudicial and where the probative value in relation to the main issue before the court is trifling. [31] That is not case in these circumstances.
G. Conclusion – admissibility of A.M.’s video statement
85I am satisfied that A.M.’s videotaped statements are substantively reliable. Further there exists some measure of procedural reliability. In tandem I have concluded these two approaches have established threshold reliability in this case. I am satisfied on a balance of probabilities after considering the entirety of record that the corroborative evidence rules out alternative or even speculative explanations. That the only likely explanation for the hearsay statement is A.M.’s truthfulness about materials aspects as described in her police interview.
H. Spontaneous statements
86The Crown seeks to admit A.M.’s utterances to Nicolle Viera at the complainant’s high school on the afternoon of February 21, 2019. The Crown argues the utterances meet the conditions to be admitted into evidence pursuant to the common law res gestae exception. In the alternative the utterances be admitted pursuant to the principled approach to hearsay evidence.
87The defence disputes the statement qualifies as res gestae, especially given the timing of the utterances, which are not contemporaneous and occur many hours after the last alleged assault. Further, Mr. Brown argues that there was nothing “particularly startling” about the events underlying the utterances and the possibility of fabrication cannot be ruled out in the circumstances.
I. Legal Principles
88Res gestae or spontaneous utterances has long been recognized in common law as an exception to the hearsay rule and will be admitted for the truth of its contents where its probity outweighs its prejudicial value.
89The exception will apply where the statement is made in circumstances in which a startling event occurs and the declarant is under stress or excitement caused by the event when the statement is made, such that the possibility of concoction can be disregarded.
90The spontaneous statement need not be part of the transaction. It is sufficient if the statement comes in response to an event in which there is only a remote possibility of fabrication or concoction. On this issue of timing of the utterance, each case depends on its own circumstances. [32]
91In R. v. Nicholas, 2004 O.J. No. 725, the Ontario Court of Appeal summarized the state of the law when considering the admissibility of spontaneous statements. At paragraph 88, the court wrote:
A spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
J. Analysis & Conclusion - Spontaneous Utterance
92In applying the exception to the present case, I find that the statement made by A.M. to Ms. Viera disclosing the sexual assault is admissible and qualifies under the spontaneous utterance exception to the hearsay rule.
93Although the alleged sexual assault took place hours before A.M.’s disclosure at her high school, the triggering event is closely temporally connected to the statement. It is only when A.M. learns from Michelle Ward that the video recording was deficient and as a result there is no recorded evidence of the assault that she reacts. She is still dominated by the stress of that knowledge when she discloses to Ms. Viera, she had been sexually assaulted that early morning. Nicolle Viera testified that she observed the complainant to be crying and shaking. That the information would rush out. At times she was angry.
94I appreciate A.M. sought out Ms. Viera at the encouragement of her friends but it does not sufficiently diminish the spontaneity of the utterance. A.M.’s disclosure of the sexual assaults was made while she was under the ongoing stress and pressure of the startling event. The utterances were made close in time to the triggering phone call with Ms. Ward. I am satisfied that possibility of concoction or fabrication was remote in the circumstances.
95I found Nicolle Viera, an experienced program facilitator in Peel Region high schools, to be a credible and a particularly detailed witness. I accepted her evidence that she did not guide A.M. but just listened to her disclosure. Further I concluded that she reliably conveyed the substance of A.M.’s utterances during her testimony.
96I find the statement from A.M. to Nicolle Viera as coming within the res gestae exception to the rule against hearsay.
H.S. Amarshi J.
1After my initial ruling allowing this application and prior to written reasons being released, counsel for Mr. V.O. – Edmond Brown sought to be removed as counsel of record. I allowed the application. I understand the Crown’s case will continue once new trial dates have been secured.
2The “Agreed Facts/Documents” contains the following: Agreed Statement of Facts, documents obtained from the Canada Border Services Agency (CBSA), including records from the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida, Forensic Evidence Form and Physical Examination Form completed on February 21, 2019 and contained as part of a Sexual Assault Evidence Kit, a Centre of Forensic Sciences (CFS) report analyzing DNA samples taken from the complainant and from her clothing, a statement of qualifications of the Forensic Biologist, and photographs of an audio recorder and a video recorder and scandisk.
3Tab 2 of the “Agreed Facts/Documents” contains information and documents held by the CBSA that were provided to the Peel Regional Police Service pursuant to a Production Order. Included in the documents is a copy of a “Petition for Injunction for Protection Against Domestic Violence” filed by V.O. on behalf of A.M. The respondent is A.M.’s uncle. (Tab 2, p. 21). Further, an order issued by a Circuit Court Judge of the Twelfth Judicial Circuit in and for Manatee County, Florida specifying as one of the conditions of the order that, “The Respondent shall allow the minor J.A.M. to remain in the United States of America to pursue her education and in the temporary care and custody of the petitioner, subject to any immigration limitations.” The petitioner is V.O., the Respondent is A.M.’s uncle. “J.A.M.” refers to the complainant (Tab 2, p. 6).
4Chantel’s Place is located at Mississauga Hospital, Trillium Health Partners.
5According to “Biology Report #2” (Tab 4 (b)), “The STR DNA results are estimated to be greater than one trillion times more likely if STR profile 1 originates from V.O. than if it originates from an unknown person, unrelated to him.” According to the Agreed Statement of Facts, “This internal deposit must be either directly, for example from penile penetration with ejaculation or indirectly, for example with a turkey baster or semen on fingers and then inserted into the vagina.” (Tab 1 para. 20).
6According to Officer McDonald he understood the underwear and bedsheet to be unrelated to the February 21, 2019, incident and retrieved on an earlier occasion by Michelle Ward. The underwear and bedsheet were never submitted by police to the CFS for DNA testing.
7A.M. was 17 at the time of this alleged sexual assault and turned 18 a few days later on November 15, 2018.
8R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 63.
9R. v. Bradshaw 2017 SCC 35, [2017] 1 S.C.R. 865 at para. 26.
10Khelawon at paras. 35 & 38.
11Bradshaw at para. 27.
12Ibid at para. 28.
13Ibid at para. 30.
14Articulated in another way substantive reliability is established when the statement, “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.” - Bradshaw at para. 31.
15Ibid at para. 32.
16Ibid at para. 57.
17In her videotaped statement, A.M. says the following about the defendant, “He did have sex with me. He did finger me and I, I just couldn’t do anything.” (At page 5, video transcript, February 21, 2019).
18Agreed Statement of Facts (Tab 1, paras. 9 and 10).
19In R. v. Thyagarajah, 2017 ONCA 825, a post-Bradshaw decision, the Ontario Court of Appeal stated:
On the second branch of the appellant's submission, the Crown fairly acknowledges that the DNA evidence standing alone could not corroborate the complainant's evidence that she did not consent to the sexual activity. However, the DNA evidence was only part of a much broader evidentiary record about the circumstances of the sexual assault. Those circumstances included the complainant being found half naked on the bathroom floor, crying. The evidence taken as a whole corroborated the reliability of the complainant's statement: see Bradshaw at para. 4.”
20File size - 51,040 KB. Due to the number of video files contained on the DVD exhibits, I have identified the relevant recording by file size for ease of reference.
21I have taken into account the possibility that the adult figure, who is wearing baggy clothes, is Michelle Ward, however this is very unlikely given Ms. Ward’s role in setting up the video camera and the purpose of the recordings. The figure appears to be a male although I accept the gender of the adult figure is not conclusive based on a viewing of the video recording alone.
22For example, A.M. described in her statement Michelle Ward inquiring as to whether the camera was charged. Further she says Ms. Ward had an app on her phone specific to the camera.
23File size 33,766 KB. Michelle Ward was identified in the video by Officer McDonald.
24File size 23,246 KB.
25In addition, she brought an audio recorder, bed sheet, clothing and underwear belonging to the complainant. These items were made exhibits.
26This conclusion is based on the following: (i) The audio recordings were provided to police by Michelle Ward on February 21 at the same time as the video recordings (ii) Officer McDonald recognized the voices on the audio recording as belonging to V.O. and A.M. (iii) The content of the recordings - the parties refer to each other by name or very close approximations of their names. (iv) There is a discussion about coaching in the audio recording and references to Florida and Nigeria in the context of sport. Of note the defence did not dispute the authenticity of the audio recordings as being between A.M. and the defendant.
27R. v. Vickers, 2020 ONCA 275, at para. 59.
28See R. v. J.M. 2010 ONCA 117, at para. 54.
29Ibid at para. 54.
30Bradshaw at para. 24.
31R. v. Wray, [1970] 4 CCC 1 (SCC).
32As the court stated in R. v. Hartley, [2000] O.J. No. 5635 (OCJ), at para. 7:
One of the first circumstances which a court would review would be the timing of the utterance. In applying the Andrews decision, Rooke, J. in R. v. Toy, located at [1998] A.J. No. 147 (Q.B.) found that there is "no precise test" to determine the length of time that may elapse before uttered statements can no longer be considered contemporaneous with the alleged event, but that "each case depends on its own circumstances."