ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
(Crown)
— AND —
MADISON SPRAYSON
(Defendant)
VOIR DIRE RULING
Before Justice of the Peace L. Bourgon
Heard on June 22 and 23, 2022
Reasons released on October 3, 2022
Clerical Amendment October 4, 2022
G. Black Counsel for the Crown
A. Touchette Counsel for the Defendant
JUSTICE OF THE PEACE L. BOURGON:
Introduction
Madison Sprayson, the defendant, is charged with careless driving causing bodily harm and death. It is alleged that on July 26, 2019, while operating a motor vehicle in the eastbound lanes of Highway 407 east she did drive carelessly causing the fatality of a rear passenger in her motor vehicle as well as bodily harm to a front passenger in her vehicle and in addition caused bodily harm to the driver and passenger of an oncoming westbound motor vehicle. She is charged pursuant to s.130(3) of the HTA.
On the date in question, the defendant was operating a motor vehicle, a Dodge Caliber, in the eastbound lanes of highway 407 east. Aboard her vehicle was her then boyfriend, Jonathan Walker Clements, who was seated in the front passenger position. Located behind the driver’s seat was their friend and roommate, Mr. Riley Wamboldt. Mr. Wamboldt succumbed to his injuries arising from the accident.
The Crown has now closed its case. The defence called Stephanie Valley as its witness. Ms. Valley testified that Mr. Walker Clements made inculpatory statements to her at the hospital on the day of the accident prior to being interviewed by police and again on the day following the accident at his residence when Ms. Valley came to stay with him to monitor his condition.
Ms. Valley testified that she was present in Mr. Walker Clements’ hospital room on the day of the accident while he was lying in bed. Ms. Valley asked him if he remembered anything at all about the accident. Mr. Walker-Clements eventually stated: “I did it” and “I think I did it, I think I pulled the wheel”. During this conversation, Mr. Walker Clements promised Ms. Valley that he would tell the police what he had told her. Moments after this utterance from his hospital bed, police entered the room and interviewed Mr. Walker Clements. At the conclusion of the police interview, Ms. Valley returned and asked Mr. Walker Clements if he had discussed his involvement in the accident with police. Mr. Walker Clements replied that he had not because he was scared.
Ms. Valley testified that the following day she volunteered to watch over Mr. Walker Clements at his home that night after his release from the hospital. According to Ms. Valley, that evening while she was siting alone on Mr. Walker Clements’ porch, Mr. Walker Clements approached her from behind and stated the words: “I did it”. He then sat down beside her and said: “I did it, I pulled the wheel”. Ms. Valley was in shock and retreated to the kitchen to gather her thoughts. She then asked Mr. Walker Clements to clarify whether or not he had pulled the steering wheel. To which Mr. Walker Clements replied: “ I did it, I did pull the wheel.” Ms. Valley asked Mr. Walker Clements to explain what happened. Mr. Walker Clements replied that he was unsure but that he was having a conversation with Ms. Sprayson (‘Maddie’) and that it might have turned into an argument. He further indicated that in the past when he had gotten angry, he had grabbed on the steering wheel and yanked it.
Ms. Valley indicated that she is a casual acquaintance of both the defendant and Mr. Walker Clements, having interacted with them on 4 occasions prior to the accident. Ms. Valley’s connection to the parties is through Ms. Paula Carl, one of her best friends. Ms. Carl was dating Mr. Wamboldt at the time of the accident. Ms. Carl is also a friend of the defendant.
The Issue:
- The defence wishes to have the hearsay statements, allegedly made by Mr. Walker Clements to Ms. Valley, admitted into evidence for the truth of their content.
The Law
Hearsay evidence is presumptively inadmissible because of its inherent reliability risks. Hearsay evidence can however be admissible where a traditional exception applies OR where the contemporary principled approach to hearsay exception applies where it can be shown that the evidence is both necessary and reliable.
On the question of hearsay evidence, the Supreme Court of Canada in R. v. Bradshaw noted:
“Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial’s truth-seeking process and trial fairness. However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.1”
- Chief Justice McLachlin in R. v. Mapara [2005] 1 S.C.R. 358, 2005 SCC 23 at paragraph 15 summarized the law related to the principled approach to the admission of hearsay evidence as follows:
a) 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.
b) A hearsay exception can be challenged to determine if it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
c) In rare cases, evidence falling within an existing exception may be excluded because of the indicia of necessity and reliability are lacking in the particular circumstances of the case.
d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. (bolded for emphasis)
At paragraph 16, Justice McLachlin wrote:
“Admissibility of evidence is determined on the basis of “threshold reliability” provided by circumstantial indicators of reliability. The issue of “ultimate reliability” is for the trier of fact, in this case the jury.”
The parties are at idem that none of the traditional exceptions to hearsay are applicable in the circumstances. The defence seeks to have the alleged statements made by Mr. Walker Clements to Ms. Valley admitted based on the principled exception to the hearsay rule.
The threshold reliability analysis takes place on a balance of probabilities based on the circumstances and any evidence led on the voir dire. Moreover, the trial judge must rule out any plausible alternative explanations on a balance of probabilities.2
Threshold reliability can be established based on either procedural reliability criteria or substantive reliability considerations or some combination of the two.3
Onus
- The onus is on the applicant to demonstrate that there should be an exception to the rule against hearsay evidence. Therefore, the defence holds both the legal and evidentiary burden on this application.
Position of the Parties
At the outset of submissions on the voir dire, the Crown conceded that the necessity component of the principled approach exception has been met. Namely, necessity is met on the legal basis of availability of evidence given that Mr. Walker Clements testified during the course of the trial that he did not make the utterances attributed to him by Ms. Valley.
Therefore, counsel submissions were focussed on the reliability component of the principled exception analysis.
Defence
Defence counsel submits that the issue for the court, at this stage, is whether threshold reliability can be satisfied. The question of whether ultimate reliability surrounding the alleged statements made by Mr. Walker Clements to Ms. Valley can be established, is for the trier of fact to decide.
The defence recognizes the statements made by Mr. Walker Clements to Ms. Valley were not recorded or deposed to in any official manner apart from Ms. Valley’s affidavit of March 7, 2022, prepared with the assistance of defence counsel. However, counsel pointed out that there is jurisprudence supporting the proposition that such recording is not a pre-requisite to admissibility4.
Defence counsel takes the position that threshold reliability in this case is met on the substantive reliability prong of the reliability test.
The context in which the statements were made makes the statements inherently reliable and thus goes to the issue of substantive reliability.
First, it is argued that Ms. Valley has no vested interest in the matter. She comes before the court not as a partisan but rather as a disinterested party. The evidence is that she is an acquaintance of the defendant and Mr. Walker Clements and is a friend of neither of them. She has not spoken to the defendant since the immediate aftermath of the 2019 collision and prior to that had met the defendant about four times.
Defence counsel also highlighted for this court the fact that despite competent cross examination by the Crown, Ms. Valley in re-direct testified that she never doubted in her memory what Mr. Walker Clements had said to her concerning the circumstances of the accident.
Defence counsel submits that the statements made to Ms. Valley are trustworthy for substantially the same reason that a declaration against penal interest is trustworthy.
The criteria that govern the admissibility of declarations against penal interest for were summarized by Watt J.A. in R. v. Tash5 at paragraph 88 as follows:
i. The declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;
ii. The vulnerability to penal consequences must not be remote
iii. The declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest.
iv. In a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and
v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.
- In addition or alternatively, defence counsel submits that the court has the discretion to apply a relaxed standard of admissibility to exculpatory evidence when tendered by the defence. The defence urged this court to consider that if Ms. Valley’s evidence concerning Mr. Walker Clements is not permitted to be introduced, there is a real possibility that the Court will be deprived of evidence that has the possibility of exonerating the defendant.
Crown
The Crown submits that the applicant has not met the test for threshold reliability and therefore the application should be dismissed.
The Crown argued at length that Ms. Valley was not a reliable witness and that the prejudicial impact of admitting her evidence concerning Mr. Walker Clements would exceed the probative value.
The Crown raised a number of reliability concerns as well as credibility concerns regarding Ms. Valley’s evidence, including:
- The absence of any recording of the alleged statements made to her by Mr. Walker Clements;
- Omissions in her affidavit which she was given an opportunity to review; namely an alleged statement made by Mr. Walker Clements at the hospital in the presence of Ms. Valley, Ms. Carl, and the Defendant wherein he advised that he had caused the accident. As well as a further statement with the same parties present in Ms. Valley’s vehicle, about how Ms. Valley held her steering wheel in a similar fashion to the defendant;
- Offering evasive answers during cross-examination to relatively uncomplicated questions by including disconnected information to create a narrative bolstering the defence’s application;
- The evidence is uncorroborated by any other sources;
- The sheer implausibility of Ms. Valley’s explanation as to why she did not go to the police in the last 3 years to report the matter: namely that she did not know what police service to report the matter; and
- By Ms. Valley’s own evidence, she was dealing with personal trauma on several fronts including being stalked and sued by her ex-boyfriend, her father’s cancer diagnosis, her own cancer scare, and having to respond to her professional college. These stressors affected her memory during this period.
The Crown also made reply submissions with respect to the criteria that govern the admissibility of declarations against penal interest.
On the question of applying a relaxed standard of evidence to prevent a miscarriage of justice, the Crown submits that the rules of evidence apply equally to the Crown and the Defence. Moreover, trial fairness is a broad concept that includes more than just a defendant’s right to make full answer and defence. The notion of trial fairness includes the Crown’s ability to present its case and to society’s interest in having a trial process which arrives at the truth.
The Crown further pointed to the existence of admissible corroborative evidence that did not correspond to the theory that Mr. Walker Clements was the cause of the accident. This evidence includes corroborative evidence suggesting a pattern of unsafe driving including the testimony of eyewitness, Jegateesan Ramasamy and lead accident reconstructionist officer Steven St. Amand.
Finally, the Crown points to the jurisprudence, including the Bradshaw decision of the Supreme Court that re-iterates that the threshold for admissibility is high and such evidence is only admitted in exceptional circumstances.
The Crown submits that to admit such unreliable statements would distort the truth seeking function of the court and would cause a miscarriage of justice.
Analysis
- As a starting point of any analysis of substantive reliability of hearsay evidence under the principled exception, it is useful to review the guidance of the Supreme Court in R. v. Bradshaw. The Court reminds of the following:
30A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).
31While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).
Now keeping in mind that the Court is assessing threshold reliability at this stage, consider the circumstances in which the alleged statements were made by Mr. Walker Clements to Ms. Valley.
In the court’s view, Ms. Valley comes before the court as an impartial witness. She has no close association with either the Defendant or Mr. Walker Clements. The undisturbed evidence is that she interacted with them approximately four times at Mr. Walker Clements home before the accident. She has had no contact whatsoever with the defendant since 2019 after the immediate aftermath of the accident. She knows of the defendant and Mr. Walker Clements because her best friend, Ms. Carl, was in a romantic relationship at the time with Riley Wamboldt.
The Crown expressed concern and frustration over the manner in which Ms. Valley testified during cross-examination, suggesting that her answers demonstrated a bias to shaping a narrative designed to help the defence’s application.
Ms. Valley was admittedly very emotional throughout her testimony requiring the court to take recesses to allow her to regain her composure. At times she struggled with effective communication. For example, during cross-examination, while answering questions about the circumstances surrounding her affidavit, Ms. Valley indicated that the affidavit presented to the court had information that is “blacked out”. At first glance her answer suggested a redacted affidavit. However, it later became clear that Ms. Valley meant her memory had “blacked out” on a piece of information missing from her affidavit.
However, when reviewed as a whole, Ms. Valley’s testimony is in fact coherent and forthright. When she did not know an answer to a question, she acknowledged this fact. When she recalled evidence not contained in her affidavit, she asked for permission before articulating this additional information. None of the additional evidence contradicted anything in her sworn affidavit. The omissions in the affidavit did not detract from Ms. Valley’s credibility. The defence also advised the court that it was not relying on this additional information for the success of its application.
The Crown also argued that some of Ms. Valley’s answers raised serious credibility concerns. For instance, on the subject of having not gone to the authorities to report what she had learned from Mr. Walker Clements, the Crown argued that her explanation that she did not know what authority to report the matter was unbelievable. While this is a valid observation, the court has also taken into consideration Ms. Valley’s evidence that she was overwhelmed at the time with many other personal matters and that she was, at least initially, led to believe that Mr. Walker Clements would do the right thing and disclose his involvement in the accident to police. The court observes that honest people make questionable choices all the time. This does not make them dishonest.
Ultimately, I was not left to conclude that Ms. Valley was motivated by bias when responding to very competent and rigorous cross-examination.
Turning to the criteria for the declaration against penal interest, while not determinative of an analysis under the principled exception to hearsay, they are factors that the court can consider to support a finding of threshold reliability.
i. The declaration must be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result;
The defence submits that Mr. Walker Clements must have known that he faced the potential for penal consequences while making his statements to Ms. Valley shortly after the collision which resulted in a fatality and serious injuries to other persons.
The Crown submits that there is no evidence that Mr. Walker Clements apprehended penal consequences for the alleged statements as this issue was not put to him during cross examination. Moreover, the utterance was made to a passing acquaintance who has no connection to the law. The fact that Ms. Valley never went to the authorities is, according to the Crown, proof that Mr. Walker Clements would have been correct in his assumption that he did not have to fear penal consequences (if in fact the statements were made).
First, I observe that Mr. Walker Clements denied making the statements during cross-examination. The fact that the cross-examination did not extend beyond that point once he denied making the statement, is not an obstacle to the defence’s argument on this element. I agree with defence’s submission that it would be too much to expect for Mr. Walker Clements to incriminate himself while testifying as a Crown witness in a provincial offences trial.
It is a very reasonable inference to make that Mr. Walker Clements apprehended penal consequences. Consider Ms. Valley’s testimony about how fearful Mr. Walker Clements was after interviewed by police at the hospital. Ms. Walker Clements could not expect with any certainty that he would be shielded by Ms. Valley, a casual acquaintance. Moreover, it is difficult to advance the argument that on the one hand that Ms. Valley ought to have reported the matter to police while at the same time arguing that there would have been no point in making such a report as Mr. Walker Clements would have faced no penal consequences.
ii. The vulnerability to penal consequences must not be remote
Similarly, I agree with the defence’s argument that Mr. Walker Clements could not have believed that his vulnerability to penal consequences was remote.
iii. The declaration must be considered in its totality, so that if, upon the whole tenor, the weight of it is in favour of the declarant, the declaration is not against his or her interest.
The Crown acknowledged that the statements, if they were in fact made, were not in Mr. Walker Clements’ interests.
iv. In a doubtful case, a court might consider whether there are other circumstances connecting the declarant with the crime, and whether there is any connection between the declarant and the accused; and
Mr. Walker Clements is connected to event. He was present as a front seat passenger in the motor vehicle. He was in an intimate relationship with the defendant. Moreover, there is the evidence of lead accident reconstructionist, Steven St. Amand who concluded that a human factor caused the accident. That human factor, according to officer St. Amand, was an abrupt steering input, although he could not say what was the cause of the abrupt steering input.
v. the declarant must be unavailable because of death, insanity, grave illness that prevents the declarant from giving testimony even from a bed, or absence in a jurisdiction to which none of the court’s processes extends.
The parties agree that this fifth criteria does not apply in the circumstances of this case.
With respect to other corroborative evidence running contrary to the alleged statements made by Mr. Walker Clements, the Crown pointed the evidence of testimony of eyewitness, Jegateesan Ramasamy and lead accident reconstructionist officer Steven St. Amand. The Crown argues that this evidence points to a pattern of careless driving leading up to the collision. While it is true that both Mr. Ramasamy and officer St. Amand’s evidence corroborate that the defendant’s vehicle was speeding and making lane changes prior to the accident, the court is alive to the conclusion of officer St. Amand. Namely, that an abrupt steering input was the cause of the accident.
On the issue of possible alternative explanations the Crown submits the following possibilities:
a) The statements were never made / the actions did not occur; OR
b) Mr. Walker Clements and the defendant were dating. The defendant had a poor driving record, as reviewed during the Crown’s cross-examination of the defendant. Perhaps, the statements were made by Mr. Walker Clements to assist his girlfriend and save her from penal consequences?
I have turned my mind to these alternative explanations and find neither of them to be satisfying. The second possibility in particular is highly speculative and suggests that from his hospital bed in the hours following the accident, Mr. Walker Clements had the wherewithal to develop a plan to shield the defendant by telling an acquaintance that he had pulled the steering wheel causing the accident.
On the issue of the court’s discretion to adopt a relaxed standard of admissibility where the exclusion of exculpatory evidence could lead to a miscarriage of justice, the court was referred to the decision of R. v. Barreira6. Justice Skarica cited with approval the British Columbia Court of Appeal’s decision in R. v. Post7 which considered the Supreme Court of Canada’s decisions in Finta and Khelawon and decided that: “the court has a residual discretion to relax in favour of the accused a struct rule of evidence where it is necessary to prevent a miscarriage of justice, and where the danger against which an exclusionary rule aims to safeguard does not exist.”8 At paragraph 86 of the Post decision, Justice Finch notes with approval the conclusion of the trial judge that: “there might be cases where evidence that is insufficiently reliable to form any part of the basis upon which a trier of fact convicts an accused may nevertheless have sufficient reliability to raise reasonable doubt.”
I find that the statements which are the subject of this voir dire were made under circumstances which substantially negate the possibility that the Mr. Walker Clements was being untruthful or mistaken. On the issue of the statements not having been recorded in any fashion, formal or otherwise, I observe that the statements are not subtle, nuanced, or complicated to understand or recall. They are short, punctuated, admissions of responsibility by the declarant made shortly after the event. “I did it…I pulled the wheel”.
While the threshold reliability standard is nonetheless still a high one, I am satisfied that the defence has established sufficient indicia of circumstantial reliability in this application.
Conclusion / Determination:
- I therefore rule that, on the basis of necessity and threshold reliability, the evidence of Ms. Stephanie Valley concerning statements made to her by Jonathan Walker Clements are admissible for the truth of their contents in this trial. The issue of ultimate reliability will have to be determined by the court in its role as trier of fact.
Released: October 3, 2022
Signed: Justice of the Peace L. Bourgon
Footnotes
- R. v. Bradshaw 2017 SCC 35 at para. 1.
- Ibid at para. 49.
- Ibid. at para. 27.
- R. v. Tash 2013 ONCA 380 and R. v. Young 2021 CarswellOnt 1021, 2021 ONCA 535.
- R. v. Tash 203 ONCA 380.
- R. v. Barreira 2017 ONSC 2623.
- R. v. Post 2007 BCCA 123 at para. 23
- Ibid. at par. 23.