Ontario Court of Justice
Between:
HIS MAJESTY THE KING
— AND —
LUIS McWHIRTER-JAVIER
Reasons for Judgment
Crown Khelawon/Bradshaw Application
Before: Justice P.F. Band
Heard: December 15 and 16, 2025
Counsel: Ms. J. Cheng.......................................................................................... counsel for the Crown Mr. J. Parkin............................................................... counsel for Mr. McWhirter-Javier
I. Introduction and Issue
1Mr. McWhirter-Javier stands charged with seven counts of assaulting his intimate partner JVM during the evening of July 14 and the early morning of July 15, 2024. On behalf of the Crown, Ms. Cheng seeks to have JVM’s statement to police admitted into evidence because she did not attend court on two successive trial dates.
2Two officers took JVM’s statement at the couple’s apartment approximately 19 hours after the alleged assaults. They captured it on a body worn camera (BWC). It took place in Spanish, with a Spanish-speaking officer doing her best to interpret. The statement is not under oath. While the officers advised JVM of the importance of telling the truth and the possibility of being charged for lying to police, JVM did not respond verbally to that caution.1 During the entire statement, JVM is holding her baby who, at times, is fussy and interferes with the audio.
3JVM had two opportunities to attend the trial of this matter: June 9 and December 15, 2025. She was served personally with a subpoena to attend court on June 9th. She did not attend, and the matter was adjourned to December 2 for this application, to be followed by trial on December 15 and 16.
4No efforts were made to locate or subpoena JVM again until December 1, when DC Cho, the officer-in-charge, spoke to her on the phone. She told him that she would not attend court on December 15 and 16. On December 2, Ms. Cheng candidly advised the Court that she could not meet the necessity requirement of the principled exception to the rule against hearsay. Also missing was a certified translation of JVM’s BWC statement. As a result, Ms. Cheng suggested that the matter go over to December 15, on the understanding that she might renew her application on that date. After December 2, DC Cho made further efforts to communicate with JVM. They were unsuccessful.
5JVM did not attend court on December 15 and Ms. Cheng renewed her application. It was supported by SOCO photos, JVM’s medical records, paramedic and ambulance call reports, two affidavits of DC Cho and the testimony of several officers, including DC Cho.
6Ms. Cheng argues that necessity and reliability, the twin requirements of the principled exception to the rule against hearsay, are now met. She also argues that JVM’s statement is corroborated in material ways, which would put the analysis set out in R v Bradshaw 2017 SCC 34 into play. With respect to necessity, Ms. Cheng A.C.A. points to the fact that the concept must be applied flexibly, as described by the Supreme Court of Canada in R v Smith, [1992] 2 SCR 915 at para. 35, R v B.(K.G.), [1993] 1 SCR 740 at para. 105, R v Khelawon 2006 SCC 57 at para. 78 and R v F. (W.J.), [1999] 3 SCR 569 at paras. 17 and 34.
7On behalf of Mr. McWhirter-Javier, Mr. Parkin opposes the Crown’s application. While he does not concede threshold reliability, his primary focus is the necessity requirement. Relying on R v A.A. and A.D. 2015 ONSC 2467,2 he argues that on this record, JVM’s failure to attend court is the result of mere disinclination, without more. I agree with Mr. Parkin that necessity is the principal issue in this application and find that the Crown has failed satisfy that requirement. As a result, the application must fail.
8The following reasons explain how I have come to that conclusion.
II. The Facts
9The following additional facts will put the issue and my analysis into proper context.
Events surrounding JVM’s BWC statement of July 15, 2024
10JVM called 911 on July 15, and officers were dispatched to attend her apartment at 12:30 p.m. She had visible bruising on her face and was seen by paramedics. There is evidence that she seemed fearful, nervous and concerned about her children at that time. Officers took JVM to the hospital with her small children shortly before 2 p.m. She was medically cleared at 6 p.m. and officers took her to 32 Division with her children, ostensibly to obtain a statement from her. As Sgt. Marks explained, the station was no place for small children. Also, there would be no officer who could speak Spanish until later. JVM asked to go home. In cross-examination, Sgt. Marks testified that it appeared to her that JVM wanted to go home rather than be at a police station with her children. Officers drove them home a brief time after. Later, two officers returned to her apartment and the BWC statement began at approximately 10:30 p.m.
Events surrounding the first trial date of June 9, 2025
11DC Cho spoke to JVM on May 1. She told him that she “did not wish” to participate in the trial. However, she was willing to meet with the prosecutor, VWAP and DC Cho. That meeting took place on May 12 with a Spanish interpreter. DC Cho did not take notes of what happened at the meeting but testified that JVM said that she “did not wish” to participate in the trial and was not coming to court. DC Cho told her that she would be subpoenaed, and she was served personally on May 29. There is no evidence that the person who served JVM could speak Spanish. Although DC Cho testified that he told her she would be “required” to attend, and that there are consequences for not doing so, he had no notes of having said that. He did, however, have a note that on June 1, he told JVM over the phone that “trials can get extended sometimes.” By that, he meant that trials can require additional dates. He also testified that JVM told him that she had no safety concerns regarding Mr. McWhirter-Javier.
12On June 9, JVM did not attend court. The Crown did not seek a material witness warrant, and the matter was adjourned to December.
Events surrounding the second trial date of December 15, 2025
13DC Cho spoke to JVM on the phone on December 1. She told him she would not be coming to court. She was living with a friend, whose address she “did not wish” to disclose. She did not give him the friend’s name and there is no evidence that DC Cho asked her for it. JVM also said she would be leaving Canada sometime in the month of December, but did not give a precise date. In his affidavit, DC Cho wrote that JVM told him she was “leaving Canada during December 2025” (my emphasis). There is no evidence that he asked her for her travel dates or that she is not returning to this country. In her submissions, Ms. Cheng made a passing reference to JVM’s status in Canada by stating that “she may not be a resident” of Canada. However, the record contains no evidence of her immigration status.
14On December 11, DC Cho asked an officer to attend the apartment where JVM resided with Mr. McWhirter-Javier and her children in July 2024. The purpose was twofold: to conduct a bail compliance check on Mr. McWhirter-Javier and to see if JVM was there. She was not, and Mr. McWhirter-Javier did not know where she might be. DC Cho tried to call JVM on that date, but there was no answer. He tried again on the morning of December 15, with the same results.
III. Applicable Legal Principles
15The basic rule in Canadian criminal trials is that relevant evidence is admissible: Khelawon at para. 34. However, that rule has exceptions. Hearsay is among them, owing to concerns about its reliability and difficulties inherent in putting it to the test. Such difficulties can lead to trial unfairness, which can give hearsay a constitutional dimension: ibid, at para. 47. As such, hearsay is presumptively inadmissible. That presumption, which was reaffirmed in “strong terms” by Iacobucci J. in R v Starr, was repeated at para. 59 of Khelawon:
By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system: ibid, at para. 59.
Cross-examination “remains a tried-and-true method” to test the truth of a witness statement, particularly when (as here) credibility issues must be resolved: ibid at para. 63.3
16However, hearsay concerns do not relate solely to the accused; the rule and its exceptions are founded in society’s interest in getting at the truth: ibid at para. 49. Hearsay can be “exceptionally admitted”: Bradshaw at para. 1. The trial judge is the gatekeeper who retains discretion to exclude a statement even when the twin requirements are met: ibid at para. 49; see also Bradshaw at para. 24. The Crown relies on the principled exception in this case and bears the onus of demonstrating, on a balance of probabilities, that JVM’s BWC statement is both necessary and reliable: Khelawon at para. 47.
17In Smith, at paras. 34-35, the Supreme Court of Canada explained the meaning of necessity. It is not about whether the Crown “needs” the hearsay evidence to prove its case; rather, it is about its necessity to prove a fact in issue. In R v Rowe 2021 ONCA 684, the Ontario Court of Appeal expanded on the definition. Necessity is not about the strength of the Crown’s case. It is about availability of evidence. Sometimes, the evidence is unavailable because
a witness goes missing, has died, is out of the jurisdiction or is otherwise unavailable to testify. And sometimes a statement becomes unavailable because a witness is present and available to testify but refuses to do so or … recants [their] earlier statement.”
In the latter case, the recanting witness holds the relevant evidence “hostage”: at paras. 41-42.
18It is true that the necessity requirement must be applied flexibly. The Supreme Court has said so repeatedly since Smith. However, I do not interpret those cases to mean that the necessity requirement has been watered down across the board. The cases themselves illustrate what the Supreme Court means, in context. For instance, in B.(K.G.), the Court was confronted with the fact that the recanting witness was not unavailable.4 As a result, it held that necessity is not synonymous with unavailability: at para. 108. The same goes for business and medical records: ibid. In R v Hawkins, [1996] 3 SCR 1043, the Court addressed spousal incompetence. In R v Khan, [1990] 2 SCR 531, the witness (a small child) was present, but incompetent to testify. In F.(W.J.), the Court discussed the necessity requirement in the context of children’s statements (the “Khan rule”) and reiterated that reasonable necessity was sufficient: at paras. 31-45. At the same time, the Court made it clear at para. 44 that a witness, even a child,
cannot be excused from testifying because the witness is not in the mood or is generally fearful of the process, which might create an incentive for witnesses, who would rather not endure the rigors of cross-examination, to “clam up”. The simple answer to this concern is that fear or disinclination, without more, do not constitute necessity. In each case the trial judge must determine whether, on the facts and circumstances of the case, necessity has been established. (My emphasis.)
19A.A. and A.D. is a case in point.
20It is also true that there is no rule requiring the Crown to subpoena a recalcitrant witness or seek a material witness warrant when they do not attend, just like there is no rule that testimonial aids must be offered to such a witness. But these factors can be relevant, and judges are entitled to give them due weight in appropriate cases: see R v Lachance 2023 SKCA 43 at para. 114; see also and A.A. and A.D.
IV. Analysis
21The Supreme Court has clearly stated that a witness’s disinclination to attend court, without more, does not constituted necessity.
22JVM is an adult woman with children of her own. Based on the BWC video, she appears to be in her late 20s or early 30s. She repeatedly told DC Cho that she did not wish to attend court. She also told him that she did not have safety concerns. This is not a case in which I can find or infer that fear is the cause of JVM’s refusal to participate.
23The only reasonable conclusion I can draw on this record is that for reasons known only to her, JVM does not want to participate in this process. It is not accurate to say that she is holding the evidence hostage like a recanting witness does. She has chosen to sequester herself by ignoring a subpoena, by keeping her whereabouts to herself and by traveling (or claiming to be traveling). That does not make her evidence unavailable, and therefore necessary, in the sense intended by the authorities.
24The question is whether there is more to this application than JVM’s disinclination. DC Cho made some efforts to find and serve JVM for the December trial dates. But he only started to do so on December 1, almost six months after JVM had ignored the May 29 subpoena. After checking Mr. McWhirter-Javier’s address and making some phone calls, DC Cho left it at that. But the problem had taken root in May.
25On May 1, JVM told DC Cho that she did not wish to come to court. On May 12, she told him that she would not come to court. The state was on notice. Yet, it did not take sufficient steps to try to ensure her participation. At no time was JVM offered testimonial aids. As for the subpoena, in light of all the evidence in this application, I am sceptical of DC Cho’s testimony that he told JVM that she was required to attend court in June and that failure to do so could have serious consequences. If he did, then either he did not drive the point home, or JVM did not take it seriously. Her failure to attend on June 9 is consistent with either inference. It called for timely steps to be taken. Options included seeking a material witness warrant, trying in earnest to meet with her and serve her with a second subpoena – this time with clear instructions – and discussing testimonial aids. The Court file indicates that the December dates had been set by the end of August. Yet, nothing was done until December.
26The state’s failure to take timely and meaningful steps on or after June 9 matters in this case. It could only have reinforced JVM’s apparent belief that attending court was no more than a function of her wishes. In these circumstances, the steps that the state took in December add little if anything to the strength of the Crown’s application. What is more, there is no evidence that JVM knew about the second trial dates before December, so there had been no impediment to her making plans to go away in December.
27Ms. Cheng added F. (W.J.), R. M.-N., R v Bekri et al. (May 17, 2024), Toronto 24-48103680 (Ont. C.J.) and R v Larionov (March 21, 2025), Toronto 24-48130097 (Ont. C.J.) to her materials in advance of December 15, so I will briefly address them. At para. 34 of F. (W.J.), the Supreme Court wrote that necessity “should not be approached on the basis that the case must fit into a preordained category.” Nevertheless, those cases must be read in context. F. (W.J.) involved a six-year-old girl who had stopped answering questions during her testimony. The witness in R. M.-N. was one of five teenage girls who were allegedly victims of serious sexual offences. Her video statement to police demonstrated that she was “clearly traumatized at the prospect of having to describe her experience with the accused at all, let alone to the court,” and the trial judge found that dragging her to court with a warrant would not enable cross-examination: at paras. 110-111.
28Bekri and Larionov, which involved adults, are clearly distinguishable. The facts of this case bear no comparison to the thorough and sustained efforts the police made in Bekri. In Larionov, the witness had recanted and was available for cross-examination.
V. Conclusion
29For these reasons, the Crown has not demonstrated that JVM’s “unavailability” constitutes necessity. The application is dismissed.
Released: January 15, 2025
Justice Patrice F. Band
Footnotes
- The certified translation of the interview indicates that she responded “M-hmm” but that is not borne out on audio.
- At para. 35, citing R v F. (W.J.) at para. 44.
- They usually do in cases of this nature. Mr. Parkin pointed to case-specific instances on the face of JVM’s BWC statement.
- See also Rowe.