GSB#2012-1308, 2012-1309, 2012-1310
UNION#2012-0517-0044, 2012-0517-0045, 2012-0517-0046
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Marshall et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel
HEARING
April 22, 2013.
Decision
1The Employer seeks to introduce into evidence inmate statements made in connection with an investigation by the Ministry and the Correctional Investigation and Security Unit (CISU) in regard to an alleged assault on an inmate by a Correctional Officer. As a result of that investigation, the Correctional Officer who is alleged to have struck the inmate was discharged and two other Correctional Officers who allegedly witnessed the event, but did not disclose that during the investigation, were terminated. These disciplinary actions were grieved and the grievances are presently before the Board. The Union opposes the Employer’s request.
2Specifically, the Employer seeks to introduce the witness statements of inmate Anthony Taylor – the person allegedly struck – as well as the statements of other inmates who were in the area at the time. The Employer recognizes that the statements are hearsay, but seeks to introduce the statements for the truth of the matters asserted under the “principled” or “flexible” approach to the hearsay rule set out in R. v. Khan 1990 SCC minicounsel 80, [1990] 2 S.C.R. 531. The Employer submits that the statements meet the tests of necessity and reliability, as established by the Supreme Court of Canada. In the alternative, the Employer submits that the statements may be admitted into evidence on the basis of Section 48(12)(f) of the Ontario Labour Relations Act, which permits an arbitrator “to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not.”
Facts
3On December 6, 2011, an inmate in the immigration wing of the Toronto West Detention Centre (TWDC), Anthony Taylor, alleged that a “Sikh” Correctional Officer had struck him across the face during a strip search. An initial Occurrence Report was written by Inmate Taylor on December 6, 2011, and he was interviewed by Security Managers at the TWDC on December 13 and by CISU investigators on December 15, 2011. Mr. Taylor was deported to Trinidad in 2012 and his whereabouts are unknown. The Employer also seeks to introduce written statements given to Security Managers at TWDC on December 15, 2011 by the following inmates: Serguei Kouchner (deported and whereabouts unknown); Yitzhak Melchek (living in Montreal); Arshad Muhammad, detained at Toronto West Detention Centre; Sergey Azarin (deported to the Ukraine in 2011), Salah Dabah (living in Mississauga). Mr. Kouchner’s statement was taken in his native language and translated on December 15, 2011. Verbal statements were also provided to CISU investigators on January 5, 2012 by Inmate Andre Lewis (deported and whereabouts unknown), Azarin, Kouchner, Melchek, and Muhammad, which the Employer also wants to have admitted into evidence.
4Occurrence Reports are not written “under oath”, nor were the verbal statements given to the Security Managers or the CSIU investigators. There is no evidence that any consequences for lying were explained to the inmates. There was no opportunity for cross-examination, or questioning by the grievors or their representatives. The evidence is unclear whether the inmates had any opportunity to discuss among themselves what allegedly occurred to Inmate Taylor during the strip search.
Reasons for Decision
5Having carefully considered the submissions of counsel and the case law provided, I conclude that the Employer did not establish either necessity or reliability sufficient to warrant an exception to the hearsay rule under R. v. Khan, supra, and the case law that follows that decision. I do, however, find that the statements and interviews, even though hearsay, may be admitted into the record, under Section 48(12)(f) of the Ontario Labour Relations Act, and the parties may argue what weight, if any, should be accorded to those statements at the conclusion of the case.
A. The “Principled” or “Flexible Approach” under R. v. Khan
6In R. v. Khan, supra, the Supreme Court of Canada adopted a “flexible approach” to the admission of hearsay evidence, provided that two general requirements were met: necessity and reliability. That case involved the alleged sexual assault of a three and a half year old child by her doctor. The child was not permitted to testify and the Crown sought to introduce a statement that the child made to her mother very shortly after the alleged incident – that he said “open your mouth”, and “put his birdie in my mouth, shook it and peed in my mouth.” A semen stain was found on the child’s clothes. The trial judge ruled the statement inadmissible because it did not fall within any of the recognized exceptions to the hearsay rule. The Supreme Court of Canada determined that although the trial judge correctly determined that the statement did not fall within the “spontaneous declaration” exception to the hearsay rule, it adopted a “more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.”
7The first requirement was that the “reception of the hearsay statement is necessary” – defined as “reasonably necessary.” (Id. at par. 37). The inadmissibility of the child’s evidence “might be one basis for a finding of necessity” but there could be others as well such as a “psychological assessment that testimony in court might be traumatic for the child or harm the child…” (Id.) The second requirement was “whether the evidence is reliable.” The Court determined that the child’s statement to her mother should have been received into evidence, stating at par. 42
It was necessary, the child’s viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence….
8The Court cautioned, however that in determining the admissibility of the evidence, “the judge must have regard to the need to safeguard the interests of the accused.” (Id. at par. 39) In addition, admissibility did not determine the weight that should be given to the evidence. Admissibility was “subject always to considerations affecting the weight that should be accorded to such evidence.” (Id. at par. 41).
9This “flexible approach”, based on necessity and reliability, has been followed since the Court’s decision in R. v. Khan, supra, in R. v. Khelawon 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.); R. v. Smith 1992 SCC minicounsel 74, [1992] 2 S.C.R. 915 (S.C.C.); and Starr v. R., 2000 SCC 40, 2000 S.C.C. 40 (S.C.C.). Each case is based on the Court’s assessment of the two requirements.
10In my view, the Court’s decision in R. v. Khelawon, supra, is particularly instructive. In that case, the manager of a retirement home was alleged to have assaulted and uttered death threats against a resident “S”. S reported what had occurred to an employee of the retirement home, who took him to see a doctor and then to the police where S gave a videotaped statement. The statement was not under oath, but S stated that he understood it was important that he tell the truth and that he could be charged if he did not tell the truth. A follow-up investigation by the police revealed four additional resident complaints of assault against the accused. By the time of the trial, however, four complainants, including S, had died and the fifth was no longer competent to testify. At issue was whether the statements provided to the police should have been admitted into evidence.
11The Court started with the premise that hearsay evidence “is presumptively inadmissible.” Khelawon, supra at par. 59 (emphasis in original). The Court determined that the traditional rule against hearsay evidence reflects “considerable wisdom and judicial experience” because it ensures that litigants will generally have the opportunity to confront adverse witnesses through cross-examination. There is an “assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination” and “[i]t is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible.” (Id. at par. 47). The more flexible approach in regard to hearsay was to ensure that strict adherence to the hearsay rules would not impede justice by excluding evidence that was necessary and reliable - “to ensure that they [the rules of evidence] facilitate rather than impede the goals of truth seeking, judicial efficiency and fairness in the adversarial process.” (Id. at par. 59) Trial fairness is important and it encompasses both the defendant’s right to make full answer and defense, but also society’s interest in having the trial process arrive at the truth. (Id. at par. 48) The Court explained at par. 49:
The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, though needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. … In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness.
12The onus is on the party who seeks to adduce the hearsay evidence to establish both necessity and reliability, on the balance of probabilities. Khelawon, at par. 47. Further, in determining admissibility it is “threshold” reliability that must be established, not “ultimate reliability.” (Id. at par. 50) Quoting from the decision in Re Starr, supra at pars. 215-217, the Court stated at par. 51: “Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.”(emphasis in original).
13The Court in Re Khelawon further stated that threshold reliability is usually met in two different ways. One is “to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about.” (Khelawon, par. 62). The other way “is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested.”(Id. at par. 63) The Court then referred back to the Khan case as an example “where the reliability requirement was met because the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy.” (Id. at par. 66) The statement was made almost immediately after the event, removing any concern about inaccurate memory. The child had no reason to lie, alleviating any concern about sincerity. The statement was made naturally and without prompting, so that there was no real danger of the mother influencing the statement. Further, the event described was one that would normally be outside the experience of a young child, giving it a “peculiar stamp of reliability.” Lastly, the child’s statement was objectively confirmed by a semen stain on her clothing.
14Quoting from another decision, R. v. Smith, supra at p. 933, in which the Court admitted some, but not all, of the statements made during telephone calls that the declarant, a murder victim, said to her mother shortly before she was killed, the Court stated that the circumstances under which the statement is made must “substantially negate the possibility that the declarant was untruthful or mistaken.”
15The Court also added, citing R. v. B.(K.G.), 1993 SCC minicounsel 23, [1993] 1 S.C.R. 740, that the Court must be satisfied that “the statement was not the product of coercion in any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or some other forms of investigatory misconduct.” (Khelawon, supra at par. 87). It also noted that “a witness’s testimony before a preliminary inquiry will satisfy the test for threshold reliability, since the fact that it was given under oath and subject to contemporaneous cross-examination in the hearing involving the same parties and mainly the same issues will provide sufficient guarantees of trustworthiness.” (Id. at par. 91)
16Applying these factors to the facts before it, the Court in Khelawon determined that the hearsay statements of the complainants should not be admitted. While the test of necessity was met because of the death of S prior to trial, the statement was not deemed sufficiently reliable. There was no opportunity for cross-examination at the trial or before, since he did not testify at the preliminary hearing and there was no attempt made to preserve his evidence. There was only the police video. The statement was not inherently trustworthy as in the child’s statement in Khan. On the contrary, in the Court’s view, the circumstances raised “a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination.”(Id. at par. 107). S was elderly and frail and his mental capacity was in issue. His injuries were consistent with either an assault or a fall, and there had been earlier complaints of dizziness, weakness and fatigue. The employee who had assisted him had recently been advised that she was losing her job, and thus had a motive to discredit the accused. The extent to which this employee influenced S was in dispute. Finally, S had his own issues with the management of the retirement home, as revealed in his video statement to the police. The Court stated that “[t]he absence of an oath and the simple ‘yes’ in answer to the police officer’s question as to whether he understood that it was important to tell the truth do not given much insight on whether he truly understood the consequences for Mr. Khelawon of making his statement.” (Id. at par. 107) In these circumstances, S’s unavailability for cross-examination “posed significant limitations on the accused’s ability to test the evidence and, in turn, the trier of fact’s ability to properly assess its worth.”(Id.)
17Other judicial decisions explore the issue of necessity. In R. v. Orpin [2002] Docket C30458 (Ont. C.A.), a witness had moved to the United States and when contacted by the police stated that she did not want to return to Canada to testify. There was no further attempt to pursue the matter, and the prosecutor did not explore “the possibility of compelling her testimony by taking commission evidence.” (Id. at par. 45). The trial judge had admitted her earlier statement to a professional oversight body on the basis that she had refused to come back to Canada and was therefore unavailable for trial. The Court of Appeal determined that the witnesses’ “refusal” to come had not been established, concluding that the evidence only showed that she “did not want to come and the police officer did not pursue the matter” and there was “no evidence before the trial judge that her testimony was non-compellable.”
18Similarly, in R. v. O’Connor [2002] Docket C30841 (Ont. C.A.), the Court overturned a trial judge’s decision to admit hearsay evidence on the basis that the witness, as an American citizen, was not a compellable witness. Even though the appellant had conceded “necessity”, the Court had “serious reservations” about that, stating at par. 57:
It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction, to satisfy the necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court. [citations omitted].
19Applying all of these factors to the instant matter, I conclude that the Employer has not established, on the balance of probabilities, that the tests of necessity or reliability have been met. In terms of Mr. Taylor, there was no evidence concerning efforts that have been made to locate him in Trinidad, or if he is willing to testify by videoconference or commission. I accept that it would be inappropriate for the Employer to bring Mr. Taylor back to Canada for this hearing, but there is no evidence that attempts were made to determine if his testimony could be obtained through alternative means. The same is true for the other inmates who have been deported from Canada. Finally, I note that one of the inmates is in Montreal and two are in Ontario. The evidence does not establish the necessity for relying on their statements.
20Similarly, the evidence does not establish, on the balance of probabilities, that the written and verbal statements of the inmates are sufficiently reliable to admit them for the truth of their content, without the ability of the Union to cross-examine them. The statements were not under oath. There is no indication that any consequences for lying were explained to them. There is no ability to observe demeanor. There was no opportunity for the grievors, or their representatives, to cross-examine the inmates on their recollection, vantage point, or potential motives to embellish or fabricate. There is no ability to determine whether anyone influenced their recollection of the events that day. Under these circumstances “it would be impossible to say that the evidence was unlikely to change under cross-examination.” Admission of the statements for the truth of their content would therefore pose a significant limitation on the grievors’ ability to test the evidence and, in turn, on this Board’s ability to properly assess its worth.
21Consequently, for these reasons, I conclude that the written and verbal statements cannot be entered into evidence for the truth of their content under the “flexible approach” set out in R. v. Khan, supra.
B. Admission under Section 48(12)(f) of the Labour Relations Act
22Nevertheless, the statements are admissible in this arbitration hearing. Under Section 48(12)(f) of the Ontario Labour Relations Act, I have the authority to admit relevant evidence, even if it might not be accepted in a court of law. This includes hearsay evidence. Re OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2003-1520 (Abramsky); Re OPSEU (Bijowski) and Community Safety and Correctional Services, 2012 OGSB minicounsel 162 (Dissanayake); Re West Fraser Electro/Mechanical Ltd. and C.E.P.U, Local 1133(Dan Hunt Grievance), unreported decision dated Sept. 6, 2009(Coleman); Re Canada (Attorney General) and Basra (2010), 190 L.A.C. (4th) 97 (Fed. C.A.); Re Hunter Drums Ltd. and U.S.W.A., Local 6868 (2000) CLB 12569 (Dissanayake); Re Girvin and Consumers Gas Co. (1973), Source decision, 40 D.L.R. (3d) 509 (Ont. Div. Ct.).
23The written and verbal inmate statements form part of the investigation record upon which Superintendent O’Connell’s decision to discharge the grievors was based. Under the case law cited above, they are clearly relevant and may be considered. The parties, at the end of the hearing, may argue what weight, if any, should be placed on these statements.
Conclusion:
For all the reasons set out above, I conclude:
The written and verbal statements made by the inmates are admissible under Section 48(12)(f) of the Labour Relations Act, but they are hearsay.
They are not admissible for the truth of their content under the “flexible approach” outlined by the Supreme Court of Canada in R. v. Khan.
The Employer did not establish, on the balance of probabilities, that the statements meet the required standards of “necessity” or “reliability.”
Dated at Toronto this 13th day of May 2013.