ONTARIO COURT OF JUSTICE
COURT FILE No.: Central East Region: Oshawa Courthouse File #2860 999 19 2307 00
BETWEEN:
HIS MAJESTY THE KING Appellant
— AND —
MADISON SPRAYSON Respondent
Before Justice Peter C. West
Oral Submissions Heard: October 26, 2023 Reasons for Judgment Given: January 10, 2024
Counsel: Mr. G. Black............................................................... counsel for the Appellant Mr. A. Touchette................... counsel for the Respondent, Madison Sprayson
WEST J.
1This is a Crown appeal of an acquittal following a trial on a charge of careless driving causing death and two charges of careless driving causing bodily harm, contrary to s. 130(3) of the Ontario Highway Traffic Act. I received factums and caselaw from both the Appellant and Respondent and have reviewed all materials provided.
2For the reasons which follow I am allowing the Crown’s appeal, quashing the acquittals and ordering a new trial on all charges facing Madison Sprayson.
Grounds of Appeal
3The Crown’s grounds of appeal are as follows:
- The learned justice of the peace erred in law in his application of the test for the admissibility of hearsay under the principled approach in R. v. Bradshaw by applying the test for admissibility under declarations against penal interest and relied on that test alone to make a finding of threshold reliability;
- The learned justice of the peace failed to conduct meaningful portions of the principled exception test respecting his determination as to whether the defence met threshold reliability;
- The learned justice of the peace materially misapprehended central evidence to his ultimate assessment of the admissibility of the hearsay statements;
- The learned justice of the peace failed to provide adequate/sufficient reasons for his ruling on the defence hearsay application in a material respect – by failing to rule on whether or not he had exercised his discretion to apply a relaxed standard of admissibility on this application; and
- The learned justice of the peace failed to adhere to foundational evidentiary principles in assessing credibility on the trial proper.
Evidence Led at the Trial
4On July 26, 2019, around 8:15 p.m., Madison Sprayson was operating a motor vehicle, a Dodge Caliber, eastbound on Highway 407 near Lakeridge Road and an overpass known as Kinsdale overpass. She had two passengers in her vehicle: Jonathan Walker Clements, who was sitting in the front passenger seat and Riley Wamboldt, who was sitting in the back seat. As Ms. Sprayson was travelling eastbound her vehicle lost control and entered the centre median area, crossing into the westbound lanes of Highway 407. The Dodge Caliber began to rollover as it came out of the ditch and was impacted by a Honda Accord, driven by Keith Gruben with his wife as a passenger, which was travelling westbound in the westbound lanes.
5Mr. Wamboldt sustained fatal injuries at the scene and Mr. Walker-Clements, Mr. and Mrs. Gruben all received non-life threatening injuries. Keith Gruben sustained injuries including broken ribs and a collapsed lung and Mary Gruben sustained injuries including broken ribs, a cervical and vertebrae fractures and a laceration to her groin.
6The trial began as a Zoom trial due to COVID-19, commencing on April 4, 2022, over several days. The defence had brought an application pursuant to a traditional hearsay exception: declarations against penal interest, or if this exception did not apply then to the principled exception to the hearsay rule, to tender on the trial proper for the truth of its contents statements allegedly made by Jonathan Walker-Clements (the front passenger) to Stephanie Valley after the collision when he was in the hospital and later after he was released from the hospital at a residence he was staying at.
7The Crown led evidence from Peter Armoogan, a traffic management supervisor of the Ontario Ministry of Transportation since 1999, respecting the CCTV cameras that monitor the 407 Highway on a 24/7 basis. He provided a number of videos from July 26, 2019, which were played and marked as Exhibit 2. It was his evidence that the cameras were functioning properly on that date and the times shown on the videos were accurate.
8P.C. Brandyn Johnson (O.P.P.) interacted with Madison Sprayson and Jonathan Walker-Clements at Sunnybrook Hospital and recorded in his notebook his questions and their answers. The Crown led this evidence on a voir dire to be considered on the defence application to admit Stephanie Valley’s hearsay evidence. His notes indicated Mr. Walker-Clements said he was the passenger, Ms. Sprayson, his girlfriend, was driving. When he was asked what happened, he told the officer it was still blurry in his mind and wanted to rest before he said anything about what happened, he said the vehicle had gone to the right, then the left and then it started skidding. The officer testified Mr. Walker-Clements did not say anything to the officer about his grabbing or interfering with the steering wheel of the Caliber. P.C. Johnson spoke to Madison Sprayson and obtained her personal information from her but did not ask her any questions about what had happened as to what caused the accident.
9Glenn Mizen was travelling eastbound on the 407 with his partner Tammy Noseworthy in a Honda Accord. The weather was clear and roadway was dry. There was nothing in the eastbound lanes that would have caused a vehicle to swerve or take evasive action. He noticed a white vehicle veer sharply to the left and make its way across the median towards the westbound lanes. It started to roll when it hit the shoulder and then a westbound vehicle made contact with it. He stopped on the left side of the road and Tammy Noseworthy went to see if she could assist. Mr. Mizen did not know which lane this vehicle was in when he first saw it other than it was not the fast lane or left lane, it was either the middle or the right lane. He believed his speed was 110, on cruise control. He did not notice the white car until it started to veer to the left. This vehicle was approximately 500 metres ahead of him. Traffic was moderate. The video from 407 was played and he identified this as being what he observed.
10Tammy Noseworthy testified the collision occurred in the evening. Her step son and his friend in the back seat began pointing to a vehicle ahead of their vehicle they saw go towards the median and when she looked over to the left she saw the vehicle already hitting the median and throwing up dirt and grass. The vehicle was out of control and she had not noticed this car until the boys pointed it out. This vehicle ultimately hit a westbound car. Traffic was not busy. They pulled onto the left shoulder and she got out and ran to the vehicles. The driver of the white car was in shock and Ms. Noseworthy could tell there was a fatality in the backseat. The male passenger was sliding out of the car onto his back. The driver was clearly distraught, crying, asking repeatedly what happened. Ms. Noseworthy identified five photos of the white car in the ditch by the westbound lane, which were marked as Exhibit 4. In cross-examination Ms. Noseworthy said she had not noticed the white car before the boys pointed it out. She believed if the car had been driving erratically before this then she would have noticed it or Glenn would have said something. The veering came out of no where. In re-examination she testified she did not know what lane the car was in before it veered to the left. She did not know if other vehicles were merging or changing lanes. She said it was certainly possible for those things to be happening as they were on the 407 Highway and travelling a hundred kilometres an hour. She was unable to say if there was another vehicle in front of their vehicle blocking her view of the white car. She did not see the white car until the boys pointed it out and it was travelling across the shoulder onto the median.
11Ms. Noseworthy’s evidence then became part of the voir dire (if the defence advanced the hearsay application). The passenger was asking if the driver was okay. Ms. Noseworthy was on her phone with 911. The passenger said his name was Jonathan and the driver was Maddie. He was consoling her and Ms. Noseworthy assumed she was his girlfriend, the way he was holding her and consoling her. She kept asking the two of them what happened and she believed Maddie was in shock, as she kept asking what had happened. Jonathan said he did not know what happened, as “one minute they were driving and the next minute they were, yeah, out of control.” Ms. Noseworthy provided a statement to the police and said Jonathan said Maddie lost control, she tried to correct it and maybe that’s what made it flip. Mr. Walker-Clements told her they were driving along and she lost control of the vehicle and tried to correct it and they started flipping. Justice Bourgon asked Ms. Noseworthy, “Okay. So, so your evidence is she tried to correct, she tried to correct the car? That, that’s your evidence?” Ms. Noseworthy responded, “That’s what he told me….Tried to correct herself, yes.” Mr. Walker-Clements did not say he was the one who caused the accident or that he had grabbed the wheel to her knowledge and if he had this would be something she would have remembered.
12It should be noted that Mr. Walker-Clements was only located by police to be subpoenaed just prior to the trial commencing. Mr. Touchette advised on the first day of the trial, just before the Crown called Jonathan Walker-Clements that he had decided to abandon his hearsay application.
13Jonathan Walker-Clements and Madison Sprayson were boyfriend and girlfriend for two months prior to the accident on the 407 Highway. Ms. Sprayson was both living with her parents and also with Mr. Walker-Clements in Peterborough. On July 26, 2019, Ms. Sprayson and he and Riley Wamboldt travelled to Guelph in Ms. Sprayson’s white Dodge Caliber to return some horse tack equipment. After that they stopped at Big Al’s in Brampton for Ms. Sprayson to purchase some aquarium fish and then they headed home using the 407. Nobody had consumed any alcohol that day. Both Madison and Riley had smoked marijuana through a bong that morning. Mr. Walker-Clements had not consumed any marijuana. This would have been four hours before they left to go to Guelph.
14When they were driving on the 407 Mr. Walker-Clements said he was looking at his phone, Riley was in the backseat, music was playing and they were kind of singing along and then all of a sudden the vehicle did a big jerk. Madison was screaming and the next thing he woke up being put into an ambulance. He was asked if he could say what Ms. Sprayson’s speed was just before the collision and said “with the speed of things moving beside us probably in the ballpark of 120 to 140 kilometres an hour.” He was unable to say whether they were passing other vehicles or other vehicles were passing them at the time just before the collision.
15Mr. Walker-Clements said he did not at any time interfere with Ms. Sprayson’s driving as it was not the passenger’s responsibility to have care and control of the vehicle. He did not grab the steering wheel at any time. He did not interfere with Ms. Sprayson’s hands while she was driving immediately before or during the collision. If someone grabbed the steering wheel while the vehicle was driving on a highway he would expect an accident to happen. He would not want that to happen. He would never put his own safety in danger at the time this vehicle was travelling on the 407. He would not want to put anyone else in danger when they were driving on the 407. In cross-examination Mr. Walker-Clements said he never looked at the speedometer when Madison was driving on the 407. He does not have a driver’s license and has never been licensed to drive a vehicle and has no experience driving a vehicle on a highway. He agreed it was fair he really had no way to gauge how fast Ms. Sprayson was going. He disagreed that Ms. Sprayson had told him before the collision she wanted to end their relationship. He agreed there had been prior occasions they had been arguing or disagreeing in a vehicle and he had asked her to pull over so he could get out, as he did not want to fight and argue. He denied on one occasion he had jerked the wheel trying to get her to pull over to the side. He denied doing that on the Port Hope pier.
16Mr. Walker-Clements agreed he had some brief conversation with Stephanie Valley after the collision. He agreed that Madison, Ms. Valley and Paula Carl had been with him at the hospital. He agreed that he was apologizing for everything that happened, anyone would when their best friend dies. He had been friends with Mr. Wamboldt for two to two and a half months. He never told Ms. Valley that he thought he had done it. He never said, “I think I pulled the wheel, I think I did it.” Ms. Valley never said to him to tell the police. When he was asked if Ms. Valley spent the night keeping an eye on him, he testified he thought Ms. Carl was monitoring him and Ms. Valley monitored Madison. He said he was not sure who monitored him as everything was a bit of a blur. He was asked if everything was a blur then he cannot say whether he told Ms. Valley he thought he pulled the wheel, to which he replied, “I can’t recall.” When it was put to him this was not what he said earlier he said, “I’m going off my best judgment of what I can recollect from the accident.” He was asked if it was fair to say that he could have, could have said, “I did it, I pulled the wheel.” He responded, “No. I don’t recall. So, I wouldn’t, no.” When Mr. Touchette put it to him again that he told Ms. Valley, “I did it, I pulled the wheel,” Mr. Walker-Clements answered, “No.” In re-examination Mr. Walker-Clements was asked if it is simply he can’t recall the conversations he had with Ms. Valley or he can’t remember or doesn’t have a memory of saying that thing? His answer, “I don’t have a memory of saying that thing.”
17On the second day of the trial, April 6, 2022, Mr. Touchette advised his decision to withdraw his hearsay application was premature and he was now intending to bring the hearsay application. The Crown continued with calling evidence on the trial proper. Jegateesan Ramasamy operates a transport truck, fifty-three foot truck and trailer, 70 hours a week for the past five years. On July 26, 2019, he observed a collision on the 407 Highway. He was operating his car on that occasion, returning from work. His car is a white Mercedes Benz. He was driving approximately 110 kilometres per hour going eastbound around 8 p.m. He was driving in the center lane around Lakeridge and 407. He observed a white vehicle about 250 feet in front of him. This car had overtaken him in the express lane, then it cut in front of him into the center lane. When it went into the center lane it was shaking left to right, about five seconds after passing him. It was going fast, more than 120 to 130 kilometres per hour, as it moved more than a hundred metres in front of him. When it moved to the centre lane there was another car in the left lane and it overtook that car and went back into the left lane. This was when the car was like “fishtailing” going left to right then left to right, more than two or three times and after that it went into the ditch. While he was making these observations he did not see any brakes lights coming from the vehicle. The Crown played the 407 video, Exhibit 1, for the witness and he pointed out his white vehicle under the bridge where he pulled over to call 911. He ran over to the white car.
18In cross-examination Mr. Ramasamy agreed he provided a statement to the police who arrived on scene to investigate the collision. The police asked him what he saw concerning the collision. The white car was the only vehicle that passed him. The collision only took three or four seconds, very fast and before seeing the video in court he had thought the white car had rolled after hitting the westbound vehicle but he saw on the video it also rolled in the median before hitting the other car. Mr. Ramasamy agreed he had spoken to the passenger of the white car after the collision. The Crown objected to Mr. Touchette eliciting what Mr. Walker-Clements apparently said to Mr. Ramasamy, as it would be hearsay. [1] The learned justice of the peace allowed the question to be asked and an answer given because Mr. Touchette was not seeking to elicit this for the truth. Mr. Ramasamy testified the passenger told him that the driver and he were separated.
19A number of OPP police officers were called by the Crown: P.C. Maurice Wong, he made observations of the two vehicles involved in the collision and he identified the deceased, Riley Wamboldt from his driver’s license; P.C. Peggy Horton, arrived at 9:20 pm and took measurements to assist the lead accident reconstructionist on scene, P.C. Steven St. Amand. She produced a scale diagram of the accident scene, Exhibit 6, that was contained in P.C. St. Amand’s report; P.C. James Lafave, SOCO photographer, who entered a series of photographs, Exhibit 7 and 8; P.C. Carl Sheardon, was qualified as an expert in the area of motor vehicle mechanical inspections and he determined there were no mechanical defects respecting the Dodge Caliber which contributed to the collision. P.C. Adam Smith assisted scene investigation, the tires of Caliber were inflated and the tread was in good condition, and he extracted the data from the airbag control module (ACM) to be used by the accident reconstructionist.
20P.C. St. Amand was qualified as an expert in accident reconstruction. He gave the following evidence; the posted speed is 100 km/hr on Highway 407; 3 lanes eastbound with an off ramp lane from lane 3 (far right lane) and 3 lanes westbound; shoulder area with a rumble strip, gravel section and grassy section dividing eastbound and westbound lanes, no centre barrier; no concerns in eastbound lanes with asphalt or debris on road. The collision occurred around 8:15 pm, sunset was 8:46 pm, all lighting was working properly. He found tire marks (black marks on pavement) and tire marks through center ditch/median area, transfer marks on westbound lanes and debris from vehicles as well as blood. Two vehicles were found on westbound side: white Dodge Caliber and black Honda Accord.
21Tire marks from the Caliber begins to leave marks in lane 2 (center lane) into lane 3 (right lane) then hooked counter clockwise back over lane 2 and lane 1 (express lane) into the centre ditch/median area. On westbound lanes there were four white transfer marks indicating the white vehicle rolled prior to it impacting the Honda Accord. P.C. St. Amand was confident the tire marks in the eastbound lanes were from the Dodge Caliber. Vehicle debris in the westbound lanes was caused by the two vehicle collision and there was no debris in the eastbound lanes.
22The ACM revealed that at -5 seconds (pre-crash data) the vehicle speed was 109 km/hour with the brakes activated. This would be at the point just before the vehicle went into the ditch/median between the eastbound and westbound lanes and prior to the Caliber’s rear being impacted by the Accord on the westbound lanes before rolling into the ditch off the right lane. P.C. St. Amand also reviewed the video footage from 407 Highway provided by Mr. Armoogan. He determined that based on the camera times indicated the 1400 metres or 1.4 kilometres prior to the Caliber leaving the eastbound left lane and going into the median, the Caliber was travelling at a constant average velocity of 136 km/hour. He used Google Earth to determine the distance of 1400 metres between the bullnose of the two cameras (Cameras 943 and 944 on Highway 407) where he took the times from, for a total time of 37 seconds. P.C. St. Amand testified he looks to three factors when conducting his accident reconstruction: (i) mechanical causations; (ii) environmental causations and (iii) human factors. There were no mechanical deficiencies noted from the mechanical inspection. The road and weather conditions at the time of the accident were good. This left human factors for consideration. He determined the Caliber was in a yaw at the time of the accident and this results from steering input or impact from a collision to cause the vehicle to be in a yaw. There were no signs of impact in the eastbound lanes, such as debris, which left the conclusion there had to be an abrupt steering input of some sort to cause the vehicle to enter into yaw. He was unable to calculate a yaw mark speed because of the configuration of the yaw marks in this case on the road surface of the eastbound lanes. It was P.C. St. Amand’s opinion this was a preventable collision. He was unable to determine what exactly was the human factor involved, other than it was a steering input. What caused it, he was unable to say. His Collision Reconstruction Report was marked as Exhibit 10.
23In cross-examination P.C. St. Amand testified the -5 second speed in the ACM of 109 km/hour was accurate. This was at a point just before the vehicle’s wheels left the road surface. The service brake is on but it does not record how gently or aggressively it was applied. P.C. St. Amand’s estimated speed of 136 km/hour prior to the ACM speed of 109 km/hour was based on the Caliber travelling 1400 metres or 1.4 kilometres in 37 seconds. P.C. St. Amand was of the opinion this was firm and accurate data. He agreed he did not physically measure the distance between the two cameras. He utilized Google Maps for the distance. He has used Google Maps in other cases where he has also physically measured distances and determined the accuracy of Google Maps and as a result he has no issue with the accuracy. The time stamps in both cameras are being run simultaneously so the same time is being recorded in both frames at the same time. His calculation of speed was based on his belief that both Google Maps and the time stamps were accurate. P.C. St. Amand agreed that if the passenger grabbed the steering wheel this would be a human factor and none of the data he reviewed would exclude that possibility. In re-examination P.C. St. Amand testified this was a possibility with nothing to support it or deny it. When he was asked by the Crown whether an animal or pet in the car could have influenced the collision, he agreed this would be asking him to guess in the absence of any evidence to help him form the opinion.
24On April 7, 2022, the Crown called P.C. Eric Levely, the first OPP officer on scene at 8:23 p.m., to investigate the collision. His first concern was getting the occupants of the vehicles extracted with the assistance of EMS. He spoke to civilian witnesses who were on scene, although other officers took their statements. He conducted a search of the Caliber and found a bong with a grinder with residue from previous use, under the passenger seat, more to the rear, its location likely caused by the collision. He did not find any marijuana. He also found a pink iPhone in the vehicle. The Crown sought to prove that Madison Sprayson’s police video statement from August 3, 2019, to P.C. Levely was voluntary for use on the trial proper and for use on the voir dire relating to the defence hearsay application, so P.C. Levely’s evidence then entered into a voir dire to determine voluntariness for that purpose. At the conclusion of this voir dire the learned justice of the peace ruled on April 7, 2022, that Ms. Sprayson’s police statement was voluntary after hearing the evidence of P.C. Levely.
25The Crown also led as part of the Crown’s evidence on the voir dire relating to the defence hearsay application, the video statement given on August 3, 2019, by Jonathan Walker-Clements to P.C. Levely, which the Crown filed as an exhibit of the voir dire. The video was played in court and a transcript was also filed as an aid to the video statement. After the Crown completed his examination in chief, Mr. Touchette cross-examined P.C. Levely respecting Mr. Walker-Clements’ statement. This was part of the voir dire respecting the defence hearsay application. Mr. Touchette cross-examined on two areas in Mr. Walker-Clements’ statement; namely, (1) the fact only Riley Wamboldt used marijuana before they drove to Guelph and (2) that Ms. Sprayson speed at the time of the accident was only 100 to 110 kilometres. P.C. Levely’s evidence then reverted back to the trial proper, as it had started with questioning by the Crown as to P.C. Levely’s involvement at the scene. Mr. Touchette began his cross-examination at this stage by indicating he wanted to ask the officer some questions about Mr. Walker-Clements’ police statement on the trial proper. The Crown objected to Mr. Touchette questioning the officer on the trial proper on areas of Mr. Walker-Clements’ statement given it had been entered as part of the voir dire respecting the defence hearsay application and Mr. Touchette had not put in cross-examination to Mr. Walker-Clements any portions of his police statement when he had testified in the trial proper earlier. Mr. Black submitted this was contrary to the decision in Browne and Dunn. The defence should not be permitted to attack Mr. Walker-Clements’ credibility through this officer concerning things he said in his police statement that may be inconsistent with his evidence in court. Mr. Touchette should have put anything he alleged to be inconsistent to Mr. Walker-Clements directly in cross-examination and it was improper for the defence to try and put this evidence before the court on the trial proper through P.C. Levely. The learned justice of the peace ruled Mr. Black’s objection was premature given Mr. Touchette had not yet indicated what he intended to ask the officer and the objection would have to be made again once Mr. Touchette asked his question. A recess was taken and when court resumed Mr. Touchette advised he had no questions of the officer on the trial proper.
26The Crown’s evidence on the trial proper was led over the following dates: April 4, 6, and 7, 2022. On April 21, 2022, the defence brought a motion for a directed verdict and submissions were made by both counsel. On June 22, 2022, the learned justice of the peace dismissed the defence motion for a directed verdict. On that same date the defence commenced the hearsay application at the end of the Crown’s evidence on the trial proper and a voir dire was held, This voir dire already included some of the evidence of Crown witnesses (P.C. Brandyn Johnson, Tammy Noseworthy and P.C. Levely’s evidence concerning the two video statements by Madison Sprayson and Jonathan Walker-Clements) previously presented by the Crown with the defence agreement as to procedure. Stephanie Valley was then called by the defence on the hearsay application voir dire, respecting the admissibility of her evidence as to what Jonathan Walker-Clements said to her. The alleged hearsay statement testified to by Stephanie Valley involved Jonathan Walker-Clements telling her, while he was in the hospital that he thought he had grabbed the wheel of the Dodge Caliber, which caused it to leave the eastbound lanes of Highway 407 and go into the centre ditch and then travel into the westbound lanes where, as it rolled, the Honda Accord driven by Keith Gruben impacted it.
27Stephanie Valley’s best friend is Paula Carl, who was at the time of the collision in July 2019, the girlfriend of Riley Wamboldt. Ms. Valley had only met Madison Sprayson on four occasions as a result of Ms. Sprayson being best friends with Riley Wamboldt. She described herself as a passing acquaintance of Ms. Sprayson. She met Jonathan Walker-Clements as he was Madison Sprayson’s boyfriend. She went with Paula to meet Riley and that was where she first met Maddie (this was Ms. Valley’s name for Ms. Sprayson) and John. She went to the hospital with Paula Carl after the collision occurred because Paula called her all upset. She drove Ms. Carl to the hospital. When they got there they first met Mr. Walker-Clements. He was in a neck brace. He kept saying he was so sorry to Ms. Carl and Ms. Valley.
28Ms. Valley testified she asked him if he could remember anything at all. He told her, “Everything just seems hazy.” She said she did not push him. They could not see Maddie at this point and she was on the left side of John’s bed and Paula was on the right side. Ms. Valley said John muttered, “I did it.” She asked him “What do you mean you did it?” He said, “I think I did it. I think I did pull the wheel.” She said to him, “Okay there’s a big difference between you think you did or anything please just tell the police. Like, I know the police are coming, please.” John said he would and she said to him, “No, no, no, you have to promise me, cause I am now in a weird situation I do not want to be in where I have to tell people what you said to me.” He said, “I promise.”
29It was Ms. Valley’s evidence the police arrived then and wanted to speak to Mr. Walker-Clements, so she and Paula left so they could speak to him. When she spoke to John after the police left she asked if he told them and he said, “No, he was scared.” She testified she did not know what to do because the police had not given her anything. She left the hospital with Paula and later got a call from Paula saying John wanted to talk to them, so Ms. Valley picked up Paula and then picked up John and drove him she believed to his sister’s house. Someone had to watch over John because he had a mild concussion and Ms. Valley testified she volunteered to do that.
30She described sitting on a step on the porch at this house and John came up behind her and said, “I did it.” She asked him, “What do you mean?” He told her, “I did it, I pulled the wheel.” She said she was in shock and told him, “Okay there is a big difference between you thinking you had caused the accident versus you have done something that caused it.” He told her he had done this multiple times before to her. She then described being in the kitchen and she heard him on the phone tell someone, “I don’t know,” so she asked him, “You said, ‘I don’t know” Did you or did you not pull the wheel?” He told her, “I did it, I did pull the wheel.” She continued to talk to him about this and asked him what happened, did he recall anything and he told her they were having a conversation and it might have turned into an argument but he was unsure. She told him again to call the police and tell them.
31She went with him to pick up Maddie from the hospital a day later. She was driving, Paula was in the passenger seat and Maddie and John were in the back and John kept bringing the situation up. Ms. Valley kept telling him to stop but he wouldn’t, so she told him to shut up.
32Ms. Valley then said she recalled something she had not put in her affidavit and asked if she could say what she remembered. It related to when Maddie was in bed in the hospital with a neck brace, Paula was sitting on a chair, John was across from Maddie looking at her and he said, “I’m going to tell them I did it, Maddie. I’m going to tell them, remember this.” She said Maddie‘s like, “Yeah but” and he said, “No, I am going to say it.” Mr. Touchette asked where this conversation occurred and she said the Toronto Hospital but could not recall the wing. She thought this might have been July 29 but was not sure.
33Mr. Touchette then asked her again about the conversation in the car after picking up Maddie from the hospital she had been relating but Ms. Valley now said, “That one is hazy to me, I’m going to be honest, That one I don’t remember.” She then began describing when she drove and picked up Maddie from the hospital with Paula and John in the car and he said that Ms. Valley drove like Maddie because of using the stick shift, where her right hand was on the stick shift. She described after he said this to her, how she always made sure her hands were in the nine and three positions on the steering wheel because of his comment.
34In cross-examination she testified it was Mr. Touchette who affirmed her affidavit in March 2022. Ms. Sprayson’s lawyer affirmed it as he was the only one she was talking to. When she was asked when she first spoke to Mr. Touchette she said she thought it was the fall of 2019 but could not confirm it. She spoke to him by phone. She described being with Paula Carl, who was speaking with Mr. Touchette on her phone and Paula told her that he wanted to talk to her. She changed the time to the spring of 2020 when this occurred. She then testified she could not confirm the year she first spoke to him because there was so much going on. She was already being sued for $35,000 and she was dealing with so many lawyers. This was because of all the traumas she has gone through the last number of years. She described dealing with serious health issues, a boyfriend stalking her, having to deal with the police in terms of her boyfriend’s stalking behaviour, and being sued for a large amount of money. She said she had spoken to the police many times about her boyfriend. At one point she testified the first time she got her affidavit was just a couple of months previous. She did not recall if she had been served with a subpoena to testify. The actual writing of the affidavit was from her talking with Mr. Touchette.
35Ms. Valley agreed she knew that Maddie and John were living together and Riley Wamboldt lived with the two of them in Peterborough. Prior to the collision she had been to their house a couple of times. She reluctantly agreed she saw Maddie on two occasions after the collision, the first time at the hospital the day of the collision and then a day or two after the collision when she picked Maddie up from the hospital with Paula and John. When Mr. Black asked if Ms. Valley ever spoke to Maddie about what Mr. Walker-Clements had said to her on the porch and in the kitchen, she said, “No.” When he asked, “You’ve never talked to her about it?” she replied, “I don’t recall.” When he pressed her again if she ever spoke to Maddie about the events where Riley Wamboldt died, she volunteered, “I recall talking to Paula about it. I recall talking to her about this because I didn’t know what to do.” When Mr. Black asked her again if she had spoken to Ms. Sprayson about this she said, “I don’t have a memory of that.” And then admitted, “I don’t remember if I did or didn’t.”
36Mr. Black then asked questions about Ms. Valley’s kitchen conversation with Mr. Walker-Clements when she was keeping watch on him after his release from the hospital, she maintained this was a conversation she remembered distinctively, it was an upsetting memory, something that was deeply engrained, something she remembered well, yet it was not in her Affidavit, dated March 7, 2022. She reviewed the affidavit a couple of days prior to affirming it was true. When Mr. Black confronted her respecting this Ms. Valley returned to saying she had an interview with Mr. Touchette in 2020. She remembered affirming the affidavit in March 2022, 32 months after the collision and her conversations with Mr. Walker-Clements. It was Ms. Valley’s evidence that she had recalled this when she first spoke to Mr. Touchette in 2020, but did not recall it when the March 2022 affidavit was written up because of all of the stress she was dealing with at that time.
37Ms. Valley admitted in cross-examination that she knew Madison Sprayson and Paula Carl were close friends. Ms. Valley also confirmed that Paula Carl was one of her best friends. She maintained there were three occasions that Mr. Walker-Clements said he had pulled the wheel causing the collision. The first was in the hospital when Ms. Valley and Paula Carl were first there with him. The second was when she had volunteered to watch him and she was on the porch when she was sitting on the step and the third was later the same night in the kitchen. It was then her evidence she had just remembered a fourth time when everyone was with Maddie in the hospital, Maddie had a neck brace on, Ms. Valley, Paula Carl and Mr. Walker-Clements were there and he told Maddie he was going to going to tell them (the police) “I did it, Maddie. I’m going to tell them.” She just remembered this for the first time when she was testifying, 36 months after the collision. She agreed she was still friends with Paula Carl and she had seen her recently.
38Ms. Valley agreed she was just a passing acquaintance of Mr. Walker-Clements yet he was making this significant admission to her on multiple occasions and on two occasions in front of other people. She agreed her affidavit was missing a lot of proper information and despite reviewing it before testifying she did not make note of this important conversation at the hospital. She agreed what she was alleging Mr. Walker-Clements told her and others was potentially significant criminal conduct on his part. It was Ms. Valley’s position he was admitting he committed a criminal act of killing her best friend’s boyfriend. She claimed she overhead him on a phone call say, “I don’t know,” which she believed was him being untruthful to the person he was speaking with given what he had just told her. When Mr. Black suggested to Ms. Valley despite what she had been told by Mr. Walker-Clements she decided not to follow up with the police herself, Ms. Valley’s explanation was she did not know what jurisdiction she would report this to. When Mr. Black suggested she did not contact the police because none of these confessions in fact ever occurred she responded, “I literally was dealing with so much other stress.”
39In re-examination she said she wished she had gone to the police but she thought John would have it in his heart to speak to them. She never doubted her memory of her conversations with Mr. Walker-Clements.
40Madison Sprayson also testified on the hearsay application voir dire where she testified she had no memory of how the collision was caused because she had been diagnosed with traumatic amnesia, due to blunt force trauma. This was the only evidence given by Ms. Sprayson in chief. Mr. Black asked if the defence was calling any expert evidence respecting Ms. Sprayson’s lack of memory and Mr. Touchette advised he was not.
41Submissions respecting the defence hearsay application were made by the defence on June 22, 2022, and by the Crown on June 23, 2022. The Crown conceded necessity on the principled approach to hearsay evidence and as a result the voir dire submissions only focused on whether the defence had established the evidence of Stephanie Valley met threshold reliability. Prior to the defence making submissions, Mr. Black reiterated a number of areas of evidence led on the voir dire during the Crown’s case (P.C. Brandyn Johnson and Tammy Noseworthy and Jonathan Walker-Clements’ police video statement and Madison Sprayson’s police video statement), which were part of the evidence to be considered in the determination of whether the defence had established threshold reliability. After hearing submissions, the learned justice of the peace reserved his ruling. In reasons dated October 3, 2022, the learned justice of the peace granted the defence hearsay application, finding that the defence had established threshold reliability of Ms. Valley’s evidence concerning statements made by Jonathan Walker-Clements to her after the collision. As a result, Stephanie Valley’s evidence became admissible on the trial proper when ultimate reliability would be determined considering the totality of the evidence led during the trial. No other defence evidence was called on the trial proper.
The Law Respecting Hearsay Evidence
42Hearsay is an out-of-court statement tendered for the truth of its contents. Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 34-35, 42, and 56. Eventually, a more flexible approach to hearsay developed through the jurisprudence. In R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35, at para. 1, Justice Karakatsanis for the majority held hearsay “may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.” The Supreme Court had earlier summarized the framework governing the admissibility of hearsay evidence in Khelawon, at para. 42 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:
(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 whether 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 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.
43The criteria for the declaration/statement against penal interest exception to the hearsay rule were distilled by Watt J.A. in R. v. Tash, 2013 ONCA 380, [2013] O.J. No. 2642, (C.A.), at para. 88:
The principles that govern the admissibility of declarations against penal interest are these:
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.
44It was the position of the Crown that all five of the criteria required for a declaration against penal interest to be applied were not met. The defence agreed the fifth criteria was not met, as Mr. Walker-Clements was present and available to testify.
45Eventually, a more flexible approach to hearsay developed through the jurisprudence where a traditional exception to hearsay is not applicable. Beginning with R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, the Supreme Court of Canada held that if a hearsay statement was not admissible through a traditional exception, it could be admitted using the principled approach. The most recent decision of R. v. Bradshaw, supra, at para. 23, held that hearsay can exceptionally be brought into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability have been met on a balance of probabilities.
46At the beginning of submissions, Mr. Black for the Crown, advised the learned justice of the peace that in this case necessity was conceded as a result of the evidence of Jonathan Walker-Clements denying in his testimony that he said the statements attributed to him by Stephanie Valley and he also denied he engaged in the conduct alleged as well. [2] Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49) In assessing threshold reliability, “the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome” (Bradshaw, at para. 26). As a result the only issue for the learned justice of the peace in this case was whether threshold reliability could be established through procedural reliability and/or substantive reliability.
47It was agreed by counsel that procedural reliability was not applicable, there was not a video or audio recording of the statement, or the presence of an oath or affirmation, or a warning about the consequences of lying by a person in authority in respect of the declaration/statement. It is interesting though in this case that Mr. Walker-Clements was in fact available to testify as a witness and did testify and he was subject to cross-examination by the defence, yet no argument was made that this should be considered as part of procedural reliability – adequate substitutes for testing truth and accuracy (Bradshaw, at paras. 27-28). In Bradshaw, at para. 32, the Court held the two approaches (procedural and substantive) could work in tandem but this was not put before the learned justice of the peace for consideration. Both the defence and Crown focused their submissions on substantive reliability, where a hearsay statement could be found to be admissible if the statement is determined to be inherently trustworthy by considering 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).
48The standard for substantive reliability is high, although the phrase ‘circumstantial guarantee of trustworthiness’ does not require reliability to be established with absolute certainty (R. v. Smith, [1992] 2 S.C.R. 915, at para. 30). Substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy (Bradshaw, para. 40). Justice Karakatsanis held in para. 44:
In my view, the rationale for the rule against hearsay and the jurisprudence of this Court make clear that not all evidence that corroborates the declarant's credibility, the accused's guilt, or one party's theory of the case, is of assistance in assessing threshold reliability. 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.
49For evidence to be corroborative it must go to the truthfulness or accuracy of the material aspects of the hearsay statement (Bradshaw para. 45). Further, 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 (Bradshaw para. 47). In assessing substantive reliability the trial justice must identify alternative, even speculative, explanations for the hearsay statement (Bradshaw para. 48). As Justice Karakatsanis concluded in para. 48:
Corroborative evidence is of assistance in establishing substantive reliability if it shows that these alternative explanations are unavailable, if it "eliminate[s] the hypotheses that cause suspicion" (S. Akhtar"Hearsay: The Denial of Confirmation" (2005) 26 C.R. (6th) 46, at p. 56 (emphasis deleted)). In contrast, corroborative evidence that is "equally consistent" with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), [1996] 2 S.C.R. 291, at paras. 34-35). Adding evidence that is supportive of the truth of the statement, but that is also consistent with alternative explanations, does not add to the statement's inherent trustworthiness.
50Justice Karakatsanis drew an important distinction between threshold and ultimate reliability (Bradshaw, at para. 36):
The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). When threshold reliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess the trustworthiness of the hearsay statement. However, they do so for different purposes (Khelawon, at paras. 3 and 50). In assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case (Khelawon, at para. 50; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36). This determination is made "in the context of the entirety of the evidence" including evidence that corroborates the accused's guilt or the declarant's overall credibility (Khelawon, at para. 3).
51In Khelawon, at para. 50, Justice Charron in dealing with the importance of the distinction between threshold and ultimate reliability emphasized the importance where there is a jury of the crucial questions of ultimate reliability of the hearsay statement be left to the jury. She also referred to a trial where the judge sits without a jury: “it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all the evidence in the case.”
Analysis
52It was Mr. Touchette’s submission to the learned justice of the peace that if the first four criteria of the traditional exception of declarations against penal interest were met, then the declaration/statement would be sufficiently reliable under the principled exception as well. [3] Mr. Black argued while the learned justice of the peace could certainly consider those factors under the traditional exception, they were not determinative respecting threshold reliability and a finding that the first four criteria of the declaration against penal interest were met did not automatically equate to a finding of threshold reliability. It was the Crown’s position there were separate requirements for a party seeking to establish threshold reliability of a hearsay statement under the principled exception pursuant to R. v. Bradshaw.
53It is important to note that Mr. Touchette conceded before the learned justice of the peace that the traditional hearsay exception of declaration against penal interest did not apply as the fifth criteria was not met. Originally Mr. Walker-Clements was not able to be found and was not expected to be in attendance as a witness at Ms. Sprayson’s trial, however, just before the start of the trial he was located. Mr. Touchette advised the learned justice of the peace he was abandoning his hearsay application because of his pending attendance as a witness. He reconsidered his decision and ultimately decided to proceed with the application. It was Mr. Touchette’s submission that despite the traditional exception not being available, the learned justice of the peace was entitled to examine the first four criteria set out in R. v. Tash, supra, at para. 88, as these were the criteria which were concerned with reliability, whereas the fifth criteria was really only concerned with necessity. If the learned justice of the peace found that the first four criteria were met then the defence would have established threshold reliability. I asked Mr. Touchette to point to any binding authority that supported this submission. No case was provided.
54Mr. Black took the position none of the criteria required under this traditional exception were met. Mr. Touchette submitted to the learned justice of the peace that the two cases provided by Mr. Black (R. v. Kimberley, 2001 ONCA 24120 and R. v. Tash, supra) supported his submission of looking to the first four criteria in the traditional exception respecting declarations against penal interest; however, I do not believe either case supports this proposition. [4] In the defence response to the Crown’s appeal he cited R. v. MacKinnon, 2022 ONCA 769, at para. 34; R. v. Starr, supra, at para. 212; and R. v. O’Brien, [1977] 2 S.C.R. 354, [1977] S.C.J. No. 65, at para. 21. However, these decisions were dealing directly with the traditional exceptions to the hearsay rule, which recognize these traditional exceptions contain “circumstantial guarantees of reliability,” which had been determined at common law. Perhaps a trial justice is entitled to consider circumstances surrounding criteria set out in the traditional exception of statements against penal interest; however, in my view this does not obviate the need to address those issues and stages identified in R. v. Bradshaw that are necessary in the determination of necessity and threshold reliability.
55I do not agree with Mr. Touchette’s submission in paragraph 75 of his Response that “The Trial Justice is not required to undertake a further reliability test as the circumstantial guarantees of reliability were already made out by reference to the indicia of reliability in the statements against penal interest.” In my view this is not a correct statement of the law and the learned justice of the peace erred in applying the defence submission in determining substantive reliability. This ignores the decisions in the Supreme Court of Canada recognizing the need for flexibility in dealing with hearsay statements that do not meet the criteria or requirements within a particular traditional exception given that hearsay evidence is presumptively inadmissible if it does not fall within a traditional exception. This led to the creation of the principled approach, commencing with R. v. Starr, supra, with further refinement to the principled approach in R. v. Khelawon, supra, and most recently, in R. v. Bradshaw, supra.
56The Supreme Court has set out certain requirements to be followed and met in order for threshold reliability to be satisfied, which I have set out above. In this case the learned justice of the peace did not apply the test for determining whether threshold reliability was established by the defence “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)” (Bradshaw, at para. 27), rather, he simply set out the five criteria in Tash in paragraph 42 of his ruling. The fact that Mr. Walker-Clements was available to testify and did testify imposes an obligation on the trial justice to consider that evidence when assessing and determining whether the hearsay is sufficiently inherently trustworthy to warrant its admission. The trial justice is to consider “not only the circumstances surrounding the making of the statement but other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statement” [Emphasis added] (see R. v. Dupe, 2016 ONCA 653, [2016] O.J. No. 4586 (C.A.), at para. 45-46; Khelawon, at paras. 4, 56-63; and R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35).
57In paragraphs 35 to 41 of his Hearsay Ruling the learned justice of peace focused exclusively on the evidence of Stephanie Valley without any analysis or comparison of other evidence by considering the circumstances in which the alleged statement was made and evidence (if any) that corroborates or conflicts with the statement. He completely ignored the fact that Ms. Valley testified on two of the occasions Mr. Walker-Clements made his statement to her, others (the accused, Madison Sprayson and Paula Carl, the deceased’s boyfriend and Ms. Valley’s and Ms. Sprayson’s best friend) were present. If Ms. Sprayson and/or Ms. Carl had testified and provided evidence which corroborated Ms. Valley’s evidence as to Mr. Walker-Clements’ statement that he had grabbed the steering wheel of the Dodge Caliber, which resulted in the vehicle leaving the eastbound lanes and entering the grass median, this would have been very significant confirmatory/corroborative evidence supporting the statements being inherently trustworthy. This would have been corroborative evidence that would have been of great assistance in establishing substantive reliability. However, this evidence was not presented and the learned justice of the peace did not in any way address this circumstance or consider what impact it had on his determination of substantive reliability.
58A further deficiency in the learned justice of the peace’s analysis is the fact that in his ruling he only dealt with Ms. Valley’s evidence without considering it in light of the police statements of both Ms. Sprayson and Mr. Walker-Clements. Ms. Sprayson provides her police statement, Exhibit 11, a week after the collision. She was out of the hospital. Ms. Valley testified Maddie was in the hospital when Mr. Walker-Clements told her he would tell the police he did it. Ms. Carl was present then as well. Yet Ms. Sprayson does not advise P.C. Levely that her boyfriend said this to her during her police statement. She tells the officer she really did not know what happened to cause the collision. Further, Ms. Sprayson, in her police video statement was able to provide a fairly detailed description of her driving, her speed, what was happening in the vehicle and the other vehicles around her vehicle on the 407 just prior to her losing control of her vehicle. She told P.C. Levely she remembered being in the middle lane, there were transport trucks ahead of her, with one in the middle lane with her and two other vehicles between them, one in the slow lane and there was also a motorcycle, a Harley, in the fast lane. The last thing she remembered was watching a car whizz by her in the fast lane. Further, in her police statement Madison Sprayson indicated Jonathan Walker-Clements was her boyfriend, they were dating for roughly two months, and there were no issues relationship wise between them. She was asked if there were any arguments that day, tensions and she told the officer, “No.” They were talking about the animals, listening to music. She told the officer they never really fought. Most importantly, Ms. Sprayson does not tell P.C. Levely that Mr. Walker-Clements grabbed the Caliber’s steering wheel during an argument they were having and this is what caused the collision. She also did not tell the officer that while she was in the hospital that Mr. Walker-Clements told her, in front of Stephanie Valley and Paula Carl, that he was going to tell the police he did it.
59Ms. Sprayson also told the officer she remembered a woman, Tammy, who came to the car and was telling her not to move to further injure herself. She remembered talking to her but could not remember what she said. Then the paramedics were there, then she woke up in a trauma room with her parents and a friend of hers – Steph, was also with her. Her friend Paula was with her boyfriend (Mr. Walker-Clements) in the other room. She told the officer Paula Carl was Riley’s girlfriend and Paula and Steph drove up when Paula found out what had happened. Ms. Valley described her relationship with Ms. Sprayson as a passing acquaintance, yet Mr. Sprayson described Ms. Valley as her friend, Steph. Interestingly, Ms. Valley throughout her evidence referred to Madison Sprayson, her passing acquaintance, as “Maddie,” which was what Ms. Sprayson’s friends called her. The learned justice of the peace did not in any way as part of his analysis of substantive reliability address the police statements of Ms. Sprayson set out above. The learned justice of the peace did not deal with any of this evidence in his determination of whether the defence had established threshold reliability of the statement on a balance of probabilities.
60A further interesting aspect of Ms. Valley’s evidence came out in her cross-examination. In chief Ms. Valley referred to only meeting Ms. Sprayson a couple of times because Ms. Valley’s best friend, Paula Carl’s boyfriend, Riley Wamboldt, lived with Maddie Sprayson and Jonathan Walker-Clements in Peterborough in Mr. Walker-Clements’ residence. Ms. Valley testified she was aware Riley and Maddie were best friends for many years but she had only met Maddie because of Ms. Valley’s close friendship with Paula. In cross-examination, her contact with Ms. Sprayson increased to four occasions and she disclosed that Ms. Sprayson was not only best friends with Riley, but she was also best friends with Paula Carl, Ms. Valley’s best friend. Ms. Sprayson referred to Stephanie Valley in her police statement, Exhibit 11, as her friend, Steph. Again, none of this evidence was discussed by the learned justice of the peace.
61The learned justice of the peace made only a single reference to Mr. Walker-Clements’ denial of having made the statement alleged by Ms. Valley: “First, I observe that Mr. Walker-Clements denied making the statements in cross-examination.” [5] The learn justice of the peace ignored Mr. Walker-Clements’ evidence in-chief, in which he not only denied making the statements but also provided cogent reasons for why he would not have grabbed the steering wheel of the car when Ms. Sprayson was driving on the 407 Highway. The learned justice of the peace also did not deal in his reasons with the evidence of Tammy Noseworthy (on voir dire) respecting her observations of Mr. Walker-Clements’ interactions with Ms. Sprayson when Ms. Noseworthy was the first person to arrive at the Caliber after the collision in the westbound lanes. This was clearly evidence which could very well have undermined the accuracy and inherent trustworthiness of Ms. Valley’s evidence. Ms. Noseworthy’s evidence clearly supported a reasonable inference that Mr. Walker-Clements was Ms. Sprayson’s boyfriend and that he was concerned for her well-being by the way he was holding and consoling her following the collision. Ms. Noseworthy testified that the passenger (Mr. Walker-Clements) said that the driver (Ms. Sprayson) lost control of the car, tried to correct it and the car started flipping. Again, none of this evidence was even discussed in any way by the learned justice of the peace. Further, the learned justice of the peace did not take into account whatsoever Mr. Walker-Clements’ statement to P.C. Levely a week after the collision or the statement provided by Mr. Walker-Clements to P.C. Brandyn Johnson in his assessment and determination of threshold reliability respecting Ms. Valley’s statements.
62It is my view the learned justice of the peace fell into error by relying on the four criteria for the traditional hearsay exception of declaration against penal interest in finding substantive reliability. It is my view the trial justice completely failed to conduct the required assessment and determination under the principled approach test. He did not identify the specific hearsay dangers presented by the statement, which is a requirement for assessing threshold reliability (Bradshaw, at para. 26).
63In the Hearsay Ruling at paragraph 44, which dealt with the Crown’s submissions respecting possible alternative explanations, the learned justice of the peace purported to address the first submission that the statements were never made/the actions did not occur. The learned justice of the peace simply indicated he had turned his mind to this issue and he did not find it to be satisfying. He provided no reasons for coming to that conclusion. It is my view he fell into error again by not dealing with all of the evidence I have referred to above, which evidence I find was material and very relevant to determining whether the alleged statements had been made at all by Mr. Walker-Clements. There was no assessment or determination by the learned justice of the peace into substantive reliability of the hearsay statement.
64The Crown submitted another alternative explanation for the statement being made, which involved Mr. Walker-Clements attempting to protect his girlfriend from the consequences of her driving, given her horrendous driving record, which was brought out by the Crown when Ms. Sprayson testified on the voir dire. The learned justice of the peace in his Hearsay Ruling found this alternative explanation put forward by the Crown to be “highly speculative” and simply dismissed it without any analysis. At the threshold reliability stage of the principled exception, “the trial judge must decide on the availability of competing explanations (substantive reliability)” and “whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy” (Bradshaw, at para. 40). The trial justice must be able to rule out any plausible alternative explanations on a balance of probabilities (Bradshaw, at para. 49). The learned justice of the peace did not engage in any analysis from which he demonstrated this alternative explanation could be ruled out on a balance of probabilities.
65It is my view because of the above legal errors a new trial must be ordered respecting this matter.
66There are two further errors that in my view result in a new trial being ordered. The first relates to the learned justice of the peace’s reasons respecting the defence request for the learned justice of the peace to exercise his discretion to adopt a relaxed standard of admissibility where the exclusion of exculpatory evidence could lead to a miscarriage of justice. It is well established that although the rules of evidence generally apply equally to the Crown and defence, a trial judge can relax those rules in favour of the defence where it is necessary to prevent a miscarriage of justice: R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.); R. v. Finta (1992), 132 C.C.C. (3d) 14 (Ont. C.A.), at pp. 200-203 (Ont. C.A.), aff’d R. v. Finta, [1994] 1 S.C.R. 701, 88 C.C.C. 417 (S.C.C.), at pp. 527-28; R. v. Folland (1999), 132 C.C.C. (3d) 14 (Ont. C.A.), at pp. 31-32 (Ont. C.A.) and R. v. Kimberley, 2001 ONCA 24120 where Justice Doherty also held:
Those cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence. As Justice Martin said in R. v. Williams, supra, at p. 378:
…It seems to me a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exculpatory rule aims to safeguard does not exist. [Emphasis added]
67The learned justice of the peace indicated in paragraph 45 of his reasons in his Hearsay Ruling that the defence requested he exercise his discretion, referring to R. v. Barreira, 2017 ONSC 2623. Unfortunately, the learned justice of the peace did not indicate whether he was exercising this discretion of applying a relaxed/lowered standard of admissibility in this case, together with his reasons for why he did or did not do so (see R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30, at paras. 28, 46; and R. v. R.E.M., 2008 SCC 51, at para. 10-15). As a result it is impossible to permit effective appellate review in respect of this issue and this legal error results in a new trial to be ordered. I do not agree with the defence submission that the learned justice of the peace was not required to rule whether a relaxed standard was applied as the totality of the evidence demonstrated that a relaxed standard was not required. As I indicated, the learned justice of the peace having set out in his ruling the defence request, he was required to provide reasons for either relaxing the standard of admissibility as requested by the defence or his reasons for not relaxing the standard of admissibility. This was not something he could leave hanging in the air, particularly having regard to Justice Doherty’s admonishment in Kimberley referred to above. In my view this legal error results in the ordering of a new trial.
68The final legal error the learned justice of the peace committed relates to evidence upon which he relied in his trial judgment, dated December 21, 2022, to make findings of credibility respecting Mr. Walker-Clements. In his trial judgment the learned justice of the peace had to decide ultimate reliability of the hearsay statement of Jonathan Walker-Clements testified to by Stephanie Valley, having already determined threshold reliability of the hearsay statement. In determining issues of credibility and reliability respecting Stephanie Valley’s evidence and Jonathan Walker-Clements under a heading “Scenario 1 – Front Passenger Interference” the learned justice of the peace adopted his credibility and reliability findings of Ms. Valley in the Hearsay Ruling. The learned justice of the peace then conducted a credibility and reliability assessment of Mr. Walker-Clements, which was the first occasion he discussed Mr. Walker-Clements’ evidence in terms of credibility or reliability. As I have already set out he did not address Mr. Walker-Clements’ evidence in his Hearsay Ruling. His assessment of Mr. Walker-Clements in his trial judgment is restricted to three paragraphs, paragraphs 101 to 103. The trial justice indicated the following in his reasons in paragraph 101:
There were notable inconsistencies between his video statement provided to police and his testimony in court. The court is alive to the fact the transcript of Mr. Walker-Clements’ video was not put to him directly during cross-examination. Therefore, the court must be prudent not to draw negative credibility inferences. However, the inconsistencies remain and, as will be seen in the following examples, both statements cannot be true at the same time. Furthermore, the inconsistencies also conveniently painted the Defendant in a less favourable light at trial, conceivably, in an effort by Mr. Walker-Clements to escape liability.
69It is important to note at the outset that Mr. Walker-Clements’ police statement was only entered as an Exhibit on the defence voir dire. It was not made an exhibit on the trial proper by the Crown or by the defence. Further, Mr. Touchette did not cross-examine Mr. Walker-Clements on anything contained in his police statement. He did not cross-examine Mr. Walker-Clements on any alleged inconsistencies between his evidence on the trial proper and what he said to P.C. Levely a week after the collision on August 3, 2019. As a result, nothing contained in Mr. Walker-Clements’ police video statement was evidence on the trial proper. If this had been a jury trial the jury would have been completely unaware Mr. Walker-Clements had given a police statement unless the defence had cross-examined him about any alleged inconsistencies. The learned justice of the peace is taken to know the law as it relates to evidence presented on the trial proper and evidence presented on a voir dire and the use that can be made of both forms of evidence. If Mr. Walker-Clements had been cross-examined he would have been given an opportunity to explain or clarify the alleged inconsistencies. The learned justice of the peace in his reasons recognized that Mr. Walker-Clements had not been cross-examined on these alleged inconsistencies. He indicated because of this he was not to draw negative credibility inferences, which he immediately did in the next sentence. It is my view one would be hard pressed to describe the two areas of alleged inconsistency noted by the learned justice of the peace between Mr. Walker-Clements police statement and his testimony in court almost three years later as “notable inconsistencies.” The learned justice of the peace’s use of the voir dire evidence to discredit a witness’ credibility and reliability in my view is a serious legal error and this error alone would have resulted in a new trial.
70For all of the reasons indicated, the Crown appeal is allowed, the acquittals are quashed and a new trial is ordered on all charges.
Released: January 10, 2024 Signed: Justice Peter C. West
Footnotes:
1Mr. Touchette had not asked Mr. Walker-Clements in cross-examination about what Mr. Ramasamy said in his police statement Mr. Walker-Clements had said to him. Of course, this evidence would be hearsay and not admissible for the truth.
2See R. v. Johnson, 2022 ONCA 534, [2022] O.J. No. 3246, at para. 27, where similar circumstance existed and necessity was conceded.
3Respondent’s Factum, at paragraph 75.
4In R. v. Kimberley the issue was not dealt with under the traditional exception of statements against penal interest, rather the statement were dealt with exclusively on the necessity/reliability analysis required by the principled approach. Similarly in R. v. Tash the evidence of the third party suspect was called before the jury without a voir dire, on the basis of the traditional exception against penal interest without resort to the principled exception to the hearsay rule, which Justice Watt found was an error.
5Voir Dire Ruling dated October 3, 2022, at p. 9, part of para. 42.