R. v. Sampu

Ontario Court of Justice (College Park – Toronto)

Between:

Her Majesty the Queen

Emma Haydon for the Crown

— AND —

Gallet Sampu

Coulson Mills for the Defendant

Heard: January 10, 2012 Reasons: February 13, 2012

REASONS FOR JUDGMENT

W.B. HORKINS, J.:

Overview

[1] This is a sexual assault case where the Crown's principal witness is not present for the trial. Rather than abandoning the prosecution, the Crown is seeking to present its case through the complainant's earlier-recorded statements, which collectively contain the allegations against the accused.

[2] The complainant's recorded statements are clearly hearsay and therefore presumptively inadmissible. In tendering this evidence, the Crown seeks to rely on the so called "principled exception" to the hearsay rule that has developed over the past 20 years following the Supreme Court's decisions in cases such as Khan, Smith, and Khelawon.

[3] If the case is presented as proposed by the Crown, the accused will be deprived of any opportunity to cross-examine on the allegations or to confront his accuser.

[4] The issue before me puts in play two conflicting policies of the criminal justice system; the first being to facilitate bringing to justice those accused of criminal conduct; and the second being to ensure a fair trial for the accused and to prevent wrongful convictions.

The Facts

[5] The factual context in which the issue arises is as follows: the complainant and the accused had met at a bar; there was considerable drinking, they ended up back at the complainant's rooming house room, where they spent the night. The complainant alleges that he awoke the next morning with the accused attempting to anally rape him as he slept.

[6] At about 6:40 a.m. a call is made to 911. The complainant is very excited and tells the operator, "There's a guy inside my house, I was with him all night, and he won't leave me alone, he's pounding on my door. I live in a rooming house". The operator asks, "What does he want with you?" and the complainant responds, saying, "I was with him all night, we were drinking, and he won't leave me alone." It seems apparent that the prime concern is that the other man is causing a commotion in the rooming house and won't leave. There is no mention of any assault, sexual or otherwise. The complainant identified himself to the operator as "Mike", not M. or M. his actual name.

[7] At 6:50 a.m., 10 minutes later, a second 911 call is made. The accused is still there. The complainant wonders why the police are taking so long to arrive. The complainant tells the 911 operator, "I woke up, and my pants were down, and his fucking dick was in my ass." The complainant is clearly distressed. He repeats over and over, "It's disgusting. It's disgusting". The 911 operator tells him, "You didn't mention anything about this when you called the first time… It gives the call a higher priority, it's a sexual assault." The complainant then adds that he can't find his wallet and wonders if he has been robbed as well. The accused is still in the house or just outside. The complainant stays on the line until the police arrive. The complainant sees the officers make contact with the accused outside the house. On this call the complainant corrects the operator when she calls him Mike and identifies himself as M., his correct name.

[8] The complainant was taken to the hospital and a "rape kit" was done. The forensic reports will support a conclusion that the DNA residue found on the complainant's neck and rectal area was from the accused. There is no confirmatory evidence of anal penetration.

[9] The forensic evidence will also establish that the complainant had a very high blood alcohol level.

[10] After the "rape kit" was done, the complainant was taken to the police station and at 11:25 a.m., he was interviewed by the police. This is four to five hours after the initial 911 call. The interview was video recorded, but not under oath and not subject to any caution regarding the importance of speaking the truth, or the legal jeopardy associated with making a false complaint. The interview lasted about half-an-hour.

Hearsay Evidence – General Principles

[11] Hearsay evidence is any statement tendered to prove the truth of its contents in the absence of a contemporaneous opportunity to cross-examine the declarant.

[12] The problem with hearsay is that it is inherently unreliable. Such information is excluded primarily because the declarant is not present at trial and so not available for cross-examination. Cross-examination is universally recognised as a fair and effective mechanism for assessing the value of a witness' evidence.

[13] The traditional exceptions to the rule against hearsay recognise that in some specific situations it is safe enough for trial courts to hear and consider hearsay statements even though they are presumptively inadmissible. These traditional exceptions must fit within certain specific, recognised exceptions to the rule. However, additionally, in the last 20 years, a more general exception to the rule has developed and now previously unacceptable hearsay evidence may be admitted at trial if the tendering party can establish on a balance of probabilities that the evidence is both necessary and reliable. This "principled exception" to the rule against hearsay "emerged from a contemporary belief that a criminal trial system should provide for the admissibility of reliable and probative evidence to enhance the truth-seeking capacity of the trial."

[14] As stated, such evidence may now be accepted in evidence at trial if the evidence is both necessary and reliable.

Necessity

[15] "Necessity" means necessary to prove a fact in issue. In R. v. Smith, the Supreme Court directs trial courts to apply a flexible approach to the necessity criteria so that it is capable of encompassing diverse situations.

[16] The necessity criteria may be met when the declarant is unable to testify due to incapacity or absence, or, if present at trial, has recanted or forgotten the allegations. In Khelawon, the court noted that the mere fact that a witness is deceased or out of the jurisdiction may not always be sufficient to meet the test of necessity.

[17] In R. v. O'Connor, an Ontario Court of Appeal case, Associate Chief Justice O'Connor distinguished "necessity" from "availability". At para. 57 he said:

"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: R. v. Finta (1992), 73 C.C.C. (3d) 65 at p. 199; R. v. Orpin (2002), 165 C.C.C. (3d) 56 at pp. 68-73."

[18] And in R. v. Forbes, Justice Trafford adds:

"… a Court should not be satisfied that the necessity criterion has been proven unless a reasonably diligent effort has been made to locate the declarant. While the concept of reasonable diligence will be applied, and determined, in the circumstances of the case, more will be required where the declarant is a critical witness in a prosecution of a serious case, such as first degree murder."

Or, I might add, an allegation of a serious sexual assault.

[19] In this case the declarant is absent, absent by choice, and has expressly stated that he has no intention of coming to the trial.

[20] For about a month leading up to the trial date in this case, consistent efforts were made by the police to find the complainant. The officer in charge has tried to telephone and text the complainant numerous times; he had the complainant's parents attempt to find him but they have not seen or heard from him in months. The complainant has moved and not updated his Social Services contact information. Three or four attempts by the Victim Witness Assistance Program office to contact the complainant have yielded no response. The only recent communication from the complainant is a text message saying that he is somewhere "up north and not coming back".

[21] Early in the investigation, the complainant told the officers that he would stay in touch with them. He did not. If there had been any indication or reason to be concerned about the complainant failing to attend for trial, the investigators might have been expected to take stronger steps to preserve the evidence by taking the statement under oath or at least subject to a caution. There was no forewarning that the complainant would choose not to attend the trial.

[22] On the whole of these circumstances, I conclude that the police have made reasonably diligent efforts to locate the complainant and have been unable to find him and secure him as a witness. As I have noted above, when the absent witness is the essential witness in a serious case, it may be that more than "reasonable diligence" is required to satisfy the "necessity" criteria. The facts here are marginal by that measure. However, on this aspect of the analysis, the balance should tip in favour of the societal interest in facilitating the prosecution's efforts to bring forward their case against the accused, and I make a finding that the necessity criteria has been met.

Reliability

[23] It must be emphasised at the outset that the reliability inquiry concerns only "threshold reliability", as opposed "ultimate reliability". At this stage of the process, the court is only determining whether the evidence is of sufficient reliability to enter into consideration on the trial proper, together with any other admissible evidence.

[24] At one time it was thought that the only factors relevant to the threshold reliability issue were the circumstances closely surrounding the making of the statement itself. In Khelawon, this approach was expanded by directing the court to identify the particular hearsay dangers of the evidence in question and to then consider whether or not those particular dangers could be sufficiently overcome to allow the reception of the evidence. Most importantly, this expansion brought into play a consideration of any confirmatory evidence, including physical evidence, that might support the reliability of the information contained in the hearsay statements.

[25] The starting point of the inquiry remains a consideration of the close circumstances of the making of the statement itself and if that alone does not determine threshold reliability, the court then proceeds to consider outside factors that may address the hearsay dangers. These are two non-mutually exclusive ways to meet the test for threshold reliability; that the circumstances in which the statements were made provide sufficient guarantees of trustworthiness to negate the hearsay concerns; and/or, there are identifiable means by which the reliability of the statements can be sufficiently tested at trial, despite their hearsay nature.

[26] In a case like the one before me now, where the declarant is not present at trial and so cannot be cross-examined at all, the court must carefully consider whether the absence of that important opportunity to test the evidence may leave a mistaken impression about the trustworthiness of the evidence.

The Statements

[27] With respect to the circumstances surrounding the making of the statements and identifying the hearsay dangers that exist on the particular facts of this case, my considerations have included the following:

1. Spontaneous Utterance Exception

The spontaneous utterance exception to the hearsay rule is essentially based on an assumption that some shocking event has precipitated an utterance without any opportunity to fabricate or be mistaken. Although the 911 calls here seem to be excited, there is really no established timeframe with respect to the particular events complained of. There is no indication as to how much earlier in time the alleged assault had occurred and what else may have transpired in the interim. Clearly, something had happened; the accused is outside of the room, banging on the accused's door, trying to get back in. The content of the call itself is focused on getting rid of the accused. It frankly does not come across as an excited utterance in reaction to a shocking event. Obvious, relevant questions arise as to the nature of the events leading up to the call.

2. Content of 911 Calls

The first 911 call curiously makes no mention of a sexual assault. The second 911 call was made primarily to complain about the slow response time of the police. There are clearly potential areas for fertile cross-examination.

3. DNA Evidence

DNA residue is present, linking the accused to the complainant. In the circumstance of this case, one can anticipate that identification would not be an issue. The DNA evidence does nothing to advance the case on the issue of consent.

4. Physical Evidence

The "rape kit" report indicates that there is no physical evidence that corroborates the report of anal penetration, or any use of force.

5. Intoxication

The complainant's statement indicates that he had been drinking heavily on the date in question. The forensic evidence suggests strongly that he was significantly intoxicated at both the time of the events and, more significantly, at the time of the making of the statements now tendered. I can take notice that alcohol impairs judgement and lowers inhibitions. The complainant's high blood-alcohol levels tend to dilute the reliability of his allegations.

6. Police Interview

The video interview is not contemporaneous to the events. There is no suggestion that it was spontaneous. The police interview was many hours after the fact; it is not under oath; it is not subject to any caution concerning the making of false statements; and, of course, there was no opportunity for cross-examination at the time that the interview took place.

7. Reluctance to Attend Trial

The complainant knew that, in the weeks leading up to trial, the Crown required his attendance at trial; and he has expressly stated that he has no intention of coming to court. This reluctance to attend and give evidence under oath and subject to cross-examination would also provide potentially fertile ground for cross-examination. Although there are many good reasons why an honest and reliable complainant might be reluctant to go to court, other more troubling reasons might include the fears associated with pursuing a false complaint.

In Conclusion

[28] At first blush, it might seem that this case is similar to R. v. Nicholas. In that case, the court admitted a 911 call and a subsequent, unsworn police interview. Although the type of statements tendered were the same, the facts in issue were entirely different. The complainant in that case awoke to find a stranger in her home, who then attacked and raped her. In Nicholas, there was no motive for the complainant to fabricate and no surrounding circumstances that would suggest anything other than a brutal non-consensual attack. The only live issue in that case was identity, and the proffered hearsay would have no impact on that issue at all. In contrast, in the case before me, identity is expressly conceded. The live issues here are what happened and was it with or without consent.

[29] The surrounding circumstances under which this complaint was expressed, raises all sorts of concerns on the issues of consent and use of force. In Nicholas, the court felt it "quite difficult to imagine the utility" of any cross-examination, given the live issue in that case. The same can certainly not be said on the alleged facts before me. I have endeavoured to identify above some specific areas where the inability to confront and question the complainant could, potentially, seriously prejudice the accused in making full answer and defence.

[30] In Khelawon, the Supreme Court emphasised that the principled exception to the hearsay rule "does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more". The court found that the statement in that case was not inherently trustworthy and that it could not be said that the "evidence was unlikely to change under cross-examination". In this case, I have no hesitation in concluding that there is a very real prospect that the evidence offered here could change significantly under cross-examination, if cross-examination was possible.

[31] In the end, I am not satisfied, on a balance of probabilities, that the identifiable dangers of admitting this evidence, without the accused having a contemporaneous opportunity to confront and cross-examine the complainant, are sufficiently satisfied by the surrounding circumstances of the statements, or any confirmatory evidence, to overcome the presumptively inadmissible nature of the evidence.

[32] In all of the circumstances of this case, it would be unsafe and, in fact, dangerous to include this evidence in the case against the accused. The Crown's application to tender this evidence is denied and it will be excluded.

Released: February 13, 2012

Justice William B. Horkins