WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

DATE: April 3, 2023

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

BEVIN KERRY DEGALE

Before: Justice T. Lipson

Ruling released: April 3, 2023

Counsel: J. Martel and E. Loignon-Giroux ............................................................................. for the Crown N. Lust ..................................................................................... for the accused Bevin Kerry Degale

LIPSON J.:

HEARSAY ADMISSIBILITY RULING

[1] Mr. Degale entered pleas of not guilty to charges of aggravated sexual assault and assault. These offences are alleged to have been committed against J.K. on December 8, 2021. Mr. Degale and J.K. were in an intimate relationship at that time.

[2] The Crown seeks to introduce five statements made by the complainant to others following the incident giving rise to the charges. The Crown is seeking to have the statements admitted for the truth of their contents under the common law res gestae exception to the rule against hearsay or the principled exception to the rule against hearsay evidence. This admissibility hearing proceeded by way of a blended voir dire.

[3] I will address the admissibility of each statement in chronological order.

Statement #1: Utterance to Mary Friesen

[4] The Crown alleges that on the night of December 8, 2021, the incident giving rise to the charges took place in Mr. Degale’s brother’s van in the parking lot of an apartment building at 1310 McWatters Road in Ottawa. The evidence is not clear whether the accused resided in this building at the time but his brother Curtis, the owner of the van, and his family lived in apartment 211.

[5] The Crown alleges that the sexual activity was at first consensual. However, J.K. is said to have to have withdrawn her consent when Mr. Degale became too rough with her. It is alleged that Mr. Degale digitally penetrated the complainant causing tears to her vagina, rectum and perineum. J.K. underwent surgery to repair these injuries.

[6] It is alleged that immediately following the sexual assault, Mr. Degale kicked the complainant and forced her out of the van. It was a snowy and cold winter night. J.K was barefoot as she ran for safety into the apartment building.

[7] J.K. managed to get into the apartment building and went to apartment 209 where Mary Friesen resided. J.K. and the witness had never met before.

[8] Ms. Friesen said that at approximately 10 p.m. she heard a knock on her door. Before opening it, Ms. Friesen asked who was there. She heard the voice of a female crying and saying that “someone was trying to kill her”. Ms. Friesen opened the door slightly but did not unfasten the door chain. There is no dispute that the woman at the door was J.K. Ms. Friesen said that J.K. was “crying real hard”. Ms. Friesen told her that she was going to call the police but J.K. responded “no”. Ms. Friesen asked the complainant to wait outside but Ms. Friesen did not see the complainant again.

[9] In cross-examination, Ms. Friesen said the knock at the door was more of a tapping sound than a banging noise. The woman at the door did not use the word “rape” and did not say that she was injured. said “no” when Mary said she was calling the police. The witness thought “maybe she was scared.”

[10] The Crown seeks admission of J.K.’s statement to Ms. Friesen for the truth of its contents pursuant to the common law res gestae or spontaneous utterance exception to the rule against hearsay.

Test for admission of res gestae statements

[11] The test for the admission of a spontaneous (or excited) utterance as an exception to the hearsay rule was stated by Lord Wilberforce in Ratten v. The Queen, [1972] A.C. 378 (P.C.) at p. 391):

Hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

[12] A statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition.

[13] In order for a statement to be admissible, the stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent: R. v. Khan (1988), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d 1990 S.C.R. 531; R. v. Nurse, 2019 ONCA 260, at paras. 77-82.

[14] Pursuant to R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 77-88, and R. v. Nicholas (2004), 70 O.R. (3d) 1 (C.A.), at paras. 88-89, leave to appeal refused, [2004] S.C.C.A. No. 225 (S.C.C.), the excited utterance exception will permit evidence that is otherwise inadmissible hearsay to be admitted if the Crown can show the following, on a balance of probabilities:

a) there is a startling occasion;

b) there is an utterance or statement made before there is time to fabricate;

c) the utterance must relate to the startling occasion; and

d) the declarant must personally observe the matter of which they speak.

[15] The statement need not be strictly contemporaneous to the occurrence. An excited utterance can be made in response to a question. In Nurse, the res gestae at issue was actually a gesture. When the victim was lying by the side of the road, after being viciously stabbed and then trying to escape his assailant, the police constable asked him who did this to him. In response, the victim pointed at his abdominal wound and then at the accused, Mr. Nurse, who was standing beside the officer. The court in Nurse relied on the decision in R. v. Andrews, [1987] A.C. 281 (H.L.), at p. 301, which indicated that the fact that an utterance was made in answer to a question is but one factor to consider under this heading: Nurse, at para. 85.

Analysis

[16] The defence contends that the statement to Ms. Friesen does not amount to a spontaneous utterance which is admissible under the res gestae or spontaneous utterance exception. Counsel submits that the statement was inherently unreliable because there is no evidence that the accused tried to kill J.K. nor is he charged with attempt murder. He suggests that J.K. was prepared to fabricate in order to gain entry to a safe place. Counsel also submits that the statement lacks probative value and is outweighed by the prejudice to Mr. Degale since he is not in a position to test the statement through cross-examination.

[17] I do not agree. Rather, I am satisfied that the statement, “someone is trying to kill me”, is admissible under the spontaneous utterance exception to the rule against hearsay. There is evidence that a few minutes before the statement was made, the complainant had been violently assaulted in the van. There is also evidence that she exited the van and frantically tried to find refuge in the apartment building. It was around 10 p.m. on a snowy cold December night and J.K. left the van in her bare feet. She knocked on the door of a complete stranger, Ms. Friesen, who described J.K. as “crying real hard” and appearing scared. Taking into account all of the circumstances surrounding the making of the statement, an inference can be reasonably be drawn that J.K. had been involved in a “startling incident”.

[18] I am also satisfied that the statement was made before there was time for J.K. to fabricate. There is evidence that J.K. was violently assaulted a few minutes before knocking on Ms. Friesen’s door. There is also evidence that J.K. was very traumatized and desperate to find place of safety. And while it is true there is no evidence that Mr. Degale tried to kill J.K., it also the case that the trier of fact could find on this evidence that her statement was, at its core, a highly emotional, albeit inaccurate, expression as to what J.K. believed had happened to her when she said somebody was trying to kill her. The statement is probative of the Crown theory that she was the victim of a non-consensual violent assault. In this regard, the potential probative value of the evidence outweighs any prejudice to the fair trial interests of Mr. Degale.

[19] J.K.’s statement to Ms. Friesen is admissible for the truth of its contents.

Statement #2: Utterances to Luna Ferguson: “I was raped” and “Kerry raped me”

[20] There is evidence that a very short time after speaking to Mary Friesen at the doorway of apartment 209, J.K. went to apartment 211. Mr. Degale’s brother Curtis, Curtis’ wife Luna Ferguson and their five children lived there. Ms. Ferguson said that she and her children were watching tv at approximately 10 p.m. when she heard a constant rapping at her apartment door. Either she or one of her sons opened the door. J.K. was at the door leaning against the door frame “trying to keep herself up”. Ms. Ferguson knew J.K. to be the accused’s girlfriend. J.K. was “dishevelled and bleeding”. She was in her bare feet and wearing a top but no bottom. Blood was running down her legs from her vaginal area. J.K. appeared very scared and she was crying, very frantic and looked a “total mess”. Ms. Ferguson asked her what had happened. J.K. responded that she had been raped. Ms. Ferguson also said that J.K. said “Kerry raped me”.

[21] Because Ms. Ferguson did not want her children to see J.K. in this condition, she “rushed her into the bathroom”, gave her a change of clothing and toiletries and let her take a shower. About 15 minutes after J.K. entered the apartment, the police arrived.

[22] In cross-examination, Ms. Ferguson acknowledged that in her statement to the police, she did not disclose that J.K. told her “Kerry raped me.”

Analysis

[23] The Crown seeks to have the utterances “I was raped” and “Kerry raped me” admitted into evidence pursuant to the res gestae or excited utterance exception to the rule against hearsay. I apply the same test and principles set out earlier in these reasons.

[24] I am satisfied that the utterances allegedly made by J.K. to Luna Ferguson should be admitted into evidence for the truth of their contents. The evidence establishes on a balance of a probabilities that these alleged utterances were sufficiently contemporaneous to the incident giving rise to the charges. It is also the case that J.K. knew and trusted Ms. Ferguson who offered her refuge and comfort in the apartment. J.K. made what can be described as an “excited utterance”. It was in answer to the question “what happened?” but that fact does not bar its admission. J.K. was crying, dishevelled, appeared to be in “a lot of pain”. Ms. Ferguson testified that J.K. was half-naked with blood running down her legs from her vaginal area. Clearly, there is evidence that the stress or pressure of the event giving rise to the charges was evident in J.K.’s condition and demeanour when she was in Ms. Ferguson’s apartment. The possibility of concoction or deception can be safety discounted. It will be for the trier of fact to determine whether J.K. made these statements to Ms. Ferguson and what, if any, weight to attach to them.

Statement #3: Utterances to Constable Darling

[25] Constable Emily Darling testified that she was dispatched to 1310 McWatters Road, unit 209 at 9:48 p.m. to investigate this incident. At 9:55 p.m. she spoke to Mary Friesen about her encounter with J.K. Constable Darling and Const Dort then took a number of investigative steps which led them to apartment 211.

[26] The officers asked a male who opened the door of apartment 211 if there was someone injured in the unit. The male pointed to the bathroom. Luna Ferguson came out of the bathroom and told the officers that an injured person named “J.” was in the bathroom. Constable Darling knocked on the door of the bathroom and asked if she could come in and J.K. consented.

[27] Constable Darling introduced herself as “Emily”. J.K. had just come out of the shower and was standing in the bathroom with only a towel on. Constable Darling asked her if she was “ok” and whether she required a paramedic. J.K. stated she was ok and that she “did not want any trouble”.

[28] Constable Darling explained that she had found blood in different areas of the building and asked her where the blood had come from. In response, J.K. made a circular motion of her hand around the area of her vagina. Constable Darling asked if this was the result of an assault. J.K. responded “yes” but that she didn’t want any charges and that she was going to be ok. She said several times she was an international student and didn’t want anything to “impede her studies”.

[29] Constable Darling tried to reassure J.K. that she was not in any trouble. The officer asked her if the person who hurt her was in the unit and J.K responded “no”.

[30] The Crown seeks admission of the following statements of the complainant to Constable Darling:

1. J.K.’s circular gesture over her vagina in response to the question about where the blood was coming from;
2. J.K.’s response “in a van” in response to the question about where the assault took place. It is submitted that the gesture and verbal responses to the officers questions were admissible for the truth of their contents pursuant to the res gestae or spontaneous utterances exception to the hearsay rule and the principled approach against hearsay.
3. J.K.’s affirmative response to the question whether her injuries were the result of an assault.

Legal principles governing the principled exception to the rule against hearsay

[31] J.K.’s statements to Constable Darling are hearsay and presumptively inadmissible. The exclusionary rule exists to guard against the trier of fact affording such evidence more weight than it deserves. However, as the Supreme Court noted in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 26, the goal of the criminal justice system is truth seeking and therefore if the hearsay concerns can be sufficiently overcome, then the trier of fact should not be denied the use of the evidence.

[32] Under the principled exception, hearsay can exceptionally be admitted into evidence when the twin criteria of necessity and reliability are satisfied on a balance of probabilities.

[33] The criterion of necessity is not in issue in this case.

[34] In R. v. Olagbaiye, 2021 ONCJ 709, [2021] O.J. 7478 at paras 45-53, Amarshi J. provides this useful summary of the applicable principles relating to threshold reliability:

45. To determine whether a hearsay statement is admissible, a trier of fact is to assess the statement's threshold reliability. Ultimate reliability of a statement relates to the weight the trier of fact gives when considering all of the evidence in the case. Threshold reliability is established when hearsay, "is sufficiently reliable to overcome the dangers arising from the difficulty testing it." These dangers arise notably due to the absence of contemporaneous cross-examination of the declarant. Where a witness is unavailable for cross-examination, as is the situation in this case, the demand for threshold reliability is understandably high.

46. According to the Supreme Court in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paragraph 26, when determining whether a hearsay statement is admissible, the trial judge must first identify the specific dangers presented by the statement and consider any means of overcoming them. These dangers relate to difficulties in assessing the declarant's perception, memory, narration or sincerity.

47. The Court goes on to explain that threshold reliability can be established by 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).

48. Procedural reliability considers whether, "there are adequate substitutes for testing the evidence." These substitutes must provide the trial judge with a satisfactory basis to evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards relevant to assessing procedural reliability include recording of the statement, the presence of an oath, and a warning about the consequences of lying.

49. In addition, a hearsay statement may be received as admissible evidence if the statement is deemed inherently trustworthy, in other words if substantive reliability is established. In this determination, the trial judge can consider the circumstances in which the statement was made and evidence that corroborates or conflicts with the contents of the statement.

50. Although the standard for establishing substantive reliability is high, it need not be established with absolute certainty. The trial judge must be satisfied that there are sufficient circumstantial guarantees of trustworthiness to conclude that the only likely explanation of the hearsay account is that it is true.

51. Procedural reliability and substantive reliability are not mutually exclusive and these two approaches to establishing threshold reliability may work in tandem and in some circumstances complement each other.

52. The Court in R. v. Bradshaw further discussed the use of corroborative evidence to establish threshold reliability of a hearsay statement. At paragraph 44, Karakatsanis J. states:

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.

And further at paragraphs 45 and 47:

First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement. Hearsay is tendered for the truth of its contents and corroborative evidence must go to the truthfulness or accuracy of the content of the hearsay statement that the moving party seeks to rely on.

Second, 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. When assessing the admissibility of hearsay evidence, "the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility." Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows 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. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.

53. In considering whether corroborative evidence is of assistance in the substantive reliability inquiry, the trier of fact should:

(i) Identify the material aspects of the hearsay statement that are tendered for their truth.

(ii) Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.

(iii) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

(iv) Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

Analysis

Necessity

[35] In this case the defence reasonably concedes necessity. From the outset, J.K. did not want the police to become involved. She told Mary Friesen not to contact the police. She told Constable Darling that she did not want charges laid. J.K. was clear with Constable Darling that she was an international student and feared that any formal cooperation on her part in the police investigation could impede her studies. J.K. refused to provide a sworn recorded statement to the officers. J.K. did not wish to be a witness in the trial. The evidence of Detective Try, the officer in charge, described unsuccessful efforts to serve J.K. with a subpoena. J.K. did, however, provide her consent to the officers to use her DNA.

Reliability

[36] It should first be noted that there is an absence of any procedural reliability safeguards. J.K.’s utterances to Constable Darling were not recorded or made under oath. The officer did not warn J.K. about the consequences of lying.

[37] The real issue is whether the statements are so substantively reliable that the hearsay danger arising from the fact that J.K. is unavailable for cross-examination is overcome.

[38] For the following reasons, I am satisfied that J.K.’s circular gesture over her vaginal area in response to Constable Darling’s question about where the blood was coming from should be admitted under the principled exception. I am also satisfied that J.K.’s response “in a van” in response to the question about where the incident took place should be admitted. J.K.’s affirmative response to the question about whether injuries were the result of an assault is not admissible for the truth of its contents under the principled exception.

[39] In reaching these conclusions, I have taken into account the circumstances in which the statements were made. With respect to timing, the bathroom conversation took place minutes only minutes after J.K. arrived at apartment 211. She was, according to Luna Ferguson, dishevelled and bleeding. Blood was running down her legs from the vaginal area. She was not wearing shoes and appeared very scared. J.K.’s statements concerning what happened were, in my view, clearly spontaneous excited utterances.

[40] Very soon after her arrival at apartment 211, J.K. went to the bathroom where she showered. She had just finished showering when Constable Darling arrived. The evidence is that by then J.K. had calmed down considerably. While I am unable to conclude that her answers to Constable Darling constitute “res gestae statements”, they come close to fitting that common law exception. J.K.’s stress due to the event was ongoing. Constable Darling was empathetic in the manner she dealt with J.K. I am unable to say there was no real opportunity to fabricate. However, I am satisfied that J.K. was willing to speak with the officer, even though she was clear that she did not want charges laid. Her statements to the officer were voluntary.

[41] There is no issue that J.K. suffered injuries to her genital area. The medical evidence is that she suffered injury and lacerations to her perineum, anus and rectum. Exhibit 11 is a medical report which indicates that surgery was required to repair her injuries. Ms. Ferguson saw blood running down J.K.’s legs from her vaginal area. There is no chance that J.K was being untruthful or mistaken when she gestured to her vaginal area to indicate where the blood was coming from. This statement by gesture is sufficiently reliable to overcome the danger arising from the fact that J.K. is not available for cross-examination.

[42] Constable Darling asked J.K. where the assault took place. J.K. answered “in the van”. This statement is also sufficiently reliable to be admitted. There is DNA evidence that the blood stains on both passenger and front seats of the van and bloody tissue in the console area came from J.K.’s injuries. There is evidence of footprints in the snow leading from the van to the apartment building. Some of the footprints had a reddish-brown colour. There is evidence of wet barefoot prints on the cement floor in the east stairwell of the building. I am satisfied that there are sufficient circumstantial evidentiary guarantees that J.K.’s statement that the assault took place in the van is true.

[43] I next turn to J.K.’s affirmative answer to the question whether her injuries were the result of an assault.

[44] The specific hearsay danger is the unavailability of J.K. for cross-examination. To overcome this hearsay danger and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination.

[45] The decision of the Supreme Court in Bradshaw requires me to consider alternative, even speculative, explanations which contradict the declarant’s assertion. I am then required to determine whether the corroborative evidence rules out these alternative explanations such that the only remaining likely explanation for the statement is J.K.’s truthful about, or the accuracy of, the material aspects of the statement.

[46] Defence counsel submits that whether the Crown can disprove consent and accidental injury beyond a reasonable doubt will be central issues for the trier of fact to consider. Counsel submits that while there is evidence that J.K. suffered an injury in the van, there is no corroborating evidence to prove or disprove that J.K. consented or had withdrawn her consent to sexual activity. There is no independent evidence that she vocalized her consent or lack of consent, verbally or physically. The defence also submitted there is no corroborating evidence to disprove that J.K.’s injuries were accidentally caused during consensual sexual activity. Counsel also says J.K.’s reliability is further diminished because she admitted that some parts of the incident were not clear and that she had consumed alcohol and cannabis prior to the incident.

[47] The defence also relies in part on an affidavit sworn to on March 10, 2023, ten days prior the commencement of this trial in which J.K. stated at paragraph 17: “I state unequivocally that the sexual activity between myself and Mr. Degale was consensual, and my injuries were accidental”.

[48] There is independent circumstantial evidence supporting the Crown’s position that J.K. was sexually assaulted in the van. That evidence includes the serious nature of J.K.’s injuries, the physical evidence that she fled from the van in her bare feet to find safety in the apartment building and her state of undress and emotional distress observed by Mary Friesen and Luna Ferguson shortly after the incident. However, I am unable to conclude that the corroborative evidence, to borrow the language from Bradshaw, “rules out alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness, or the accuracy of, the material aspects of the statement.”

[49] In R. v. T.(M.G.), 2017 ONCA 736, [2017] O.J. No.4902 (Ont. C.A.), Watt J.A. stated:

The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process

[50] The issues of consent and accident will be live issues for the trier of fact to consider in this trial. I am unable to conclude on the evidence that J.K.’s untested statement that her injuries resulted from an assault is so reliable that contemporaneous cross-examination would add little, if anything, to the process.

[51] Therefore, the latter statement does not meet the test for admission for substantive reliability and is not admitted.

Statement #4: Utterances to Constable Dort

[52] At the conclusion of Constable Darling’s conversation with J.K. in the bathroom, the complainant told him that she was planning to stay the night with a friend named K. and provided her address. J.K. also asked the officer for a ride to K.’s residence. Constable Darling told her the police would take her some place safe. J.K. was given fresh clothing and flip-flops to wear.

[53] Constable Darling consulted with Constable Dort in the absence of the complainant. The officers decided to drive to a parking lot behind a public school across the street from the building at 1310 McWatters Road. Constable Darling transported J.K. in her cruiser. Constable Dort drove his cruiser there as well. Upon arrival in the parking lot, Constable Dort opened the back door of his colleague’s vehicle and spoke to J.K., who was seated in the rear passenger seat while he remained standing beside her.

[54] Constable Dort described J.K. as being “in shock”, “quiet” and “scared”. He told her that she was not in any trouble and that he knew about her injuries. He told her that she needed medical care in a hospital. J.K. expressed concern about the potential cost of medical care. Constable Dort then asked her if she had been sexually assaulted. J.K. responded “yes”. He then asked her if the sexual assault had taken place in the van and she responded “yes”. He then asked if “Bevin did it?” J.K. responded “yes”.

[55] Constable Dort was in uniform and carrying a firearm that would have been visible to J.K. He believed that he recorded the questions and answers verbatim, but he wasn’t sure if she answered “yes” to his questions or whether she nodded. He allowed that it was also possible that she mumbled her answers. Constable Dort agreed with a suggestion that J.K. was preoccupied about getting to her friend’s place and the potential costs of any medical care. The witness said that he did ask J.K. pointed open-ended questions as to what had happened because he felt some exigency to get information and that J.K. was not “super forthcoming”.

[56] The Crown seeks admission of J.K.’s responses to Constable Dort’s questions for the truth of their contents.

Analysis

[57] The statements attributed to J.K. are not admissible for the truth of their contents because I am not persuaded that they are substantively reliable.

[58] No procedural safeguards were employed by Constable Dort. In fact, the officer said he never contemplated that her utterances would be used in court as a substitute for her testimony. He was simply trying to quickly confirm information that he had gathered from his investigation that J.K. had been sexually assaulted by the accused in the van. Constable Dort told J.K. she was “not in any trouble” but failed to warn her about the consequences of lying or that she was not obliged to answer his questions.

[59] The questions that Constable Dort put to J.K. were pointed and prompting. The officer was not certain that that he recalled the conversation verbatim. The evidence is that J.K. was in a state of shock and fear when the conversation took place. J.K. thought she was being taken to her friend’s place but found herself being questioned about the incident in the parking lot of a school close to the scene of the incident. It is not surprising that J.K. appeared to be in shock and frightened. According to the officer, she was preoccupied with whether she was in any legal jeopardy as well as the costs of any medical attention.

[60] I agree with the submission of counsel for Mr. Degale that the circumstances surrounding the making of the statement would make a reasonable person in the position of J.K. unsure whether she was required to cooperate with police and unsure if she was in trouble. There is no evidence that J.K. knew she would be taken to the parking lot for questioning, instead of being taken to her friend’s residence. There is no evidence that she was willing to provide any information.

[61] There are insufficient guarantees of inherent trustworthiness to overcome the main hearsay danger, which is a meaningful opportunity to cross-examine J.K. on the truth of these of out of court statements. I am unable to say whether J.K.’s responses were made in order to appease the officer. While I appreciate that there is potentially corroborative evidence to support the truthfulness of J.K.’s utterances to the officer, nevertheless, the circumstances surrounding the making of these utterances are not sufficiently reliable to permit their admission into evidence.

Statement #5: J.K.’s statement to Detective Gallichon at the hospital

[62] After the school parking lot conversation, Constable Darling drove J.K. to the Ottawa Civic Hospital where she was kept overnight and treated. On December 9, 2021 shortly before 8 a.m., Detective Gallichon and her partner Detective Try of the Ottawa Police Service Partner Assault Section attended the hospital in order to interview the complainant.

[63] They found out that J.K. was in a small hospital room and was waiting for surgery. J.K. and Detective Gallichon discussed her injuries and the treatment she had received. Detective Gallichon asked J.K. if she would provide a written or videotaped statement. J.K. did not wish to provide any formal statement. Detective Gallichon offered to write down her statement and J.K. could then sign it. J.K. refused to do that. The officer told J.K. that it was her decision and asked her if she would be willing to tell her what happened. J.K. did not respond but spoke freely about the incident.

[64] The first thing J.K. said, according to the officer, was that parts of what occurred were not clear in her mind. J.K. said a lot was happening and she had consumed alcohol and cannabis before the incident. J.K. proceeded to give a detailed account about what occurred. She provided a number of details as to the events as well the history of her relationship with the accused. The interview lasted approximately an hour. J.K. did not appear to be under the influence of any intoxicant or medication at the time she made the statement. During the interview hospital staff were coming in and out of the room. Detective Gallichon described J.K.’s speech as “flat” and not showing a lot of emotion in her tone of voice.

[65] At the end of the interview, Detective Gallichon gave J.K. her notebook to review. J.K. said the notes were accurate but she refused to sign the notebook. However, J.K. did agree to sign a DNA consent form. J.K. told Detective Gallichon that she did not want the accused to be charged. She didn’t want to be with him anymore but was still in love with him. The detective then explained to her that the Ottawa Police Service has a mandatory charging policy in these types of cases.

[66] The interview lasted approximately an hour but was reduced to just three pages of notes in the detective’s notebook. Later that morning, Detective Gallichon prepared an Investigative Action (I.A.) which was a typed and expanded account of her interview containing more details than she originally recorded in her notes. The notes and I.A. are written in the third person. Detective Gallichon said that she asked the complainant questions and sought clarification of answers during the interview but none of her questions were recorded. While J.K. was speaking, the officer tried her best to keep up in her notetaking with the complainant’s words.

[67] In cross examination, Detective Gallichon acknowledged that her notes did not contain any direct quotes from J.K. She acknowledged that Ottawa Police Service policy required that the exact words of a witness be recorded in quotation marks, but there were none in her notes. Detective Gallichon stated that her notes were not “word for word” and conceded that her aim had been to “capture what she was saying”. Detective Gallichon said that parts of J.K.’s narrative were unclear, but she never followed up by asking the complainant to clarify. As well, she made no note that she told J.K. about the consequences of not telling the truth but that is what she “usually does”. Counsel pointed out to the witness an important difference between what she recorded her notes and what she wrote in her IA. In her notes, the officer wrote “Being rough about. Think maybe used his fist.”. In her IA, Detective Gallichon wrote “She doesn’t think he used an object or anything to hurt her but thinks he must have “fisted” her and that it was really rough.” (italics added).

Analysis

[68] Hearsay statements include oral or written assertions by the declarant. Once the trial judge has determined that threshold admissibility has been established, it is then for the trier of the fact to determine whether the statement was in fact made and what, if any, weight should be given to it.

Do Detective Gallichon’s notes constitute a statement made by J.K.?

[69] This case raises a novel issue. Does the notebook summary by Detective Gallichon of her interview with J.K. constitute a “statement” made by the declarant?

[70] The Crown submits that the narrative of events by J.K. as recorded by Detective Gallichon properly constitutes “a statement” reduced to writing.

[71] I have considerable difficulty accepting this submission. In my view, the notes may be properly characterized as an incomplete summary of what J.K. told Detective Gallichon. The officer told the court that she was trying “to catch” J.K.’s narrative as best she could while J.K. was speaking “relatively quickly”. The notes do not contain a verbatim record of what J.K. said. There are no direct quotations. J.K.’s narrative of events is written in the third person. Detective Gallichon asked J.K. questions, but those questions were not recorded. It is also noteworthy that when Detective Gallichon conducted the interview, she did not consider her notes to constitute a statement which would potentially be used at trial as a substitute for J.K.’s testimony. Detective Gallichon candidly told the court that had she known that her notes would be offered as a replacement for J.K.’s testimony, she would have recorded the statement “word for word” as opposed to a summary form.

[72] There is a dearth of authorities that directly addresses this issue. Of some assistance is the case of R. v. Ali et al, 2015 ONCJ 765 (O.C.J.). There, the Crown attempted during the course of a preliminary hearing to tender into evidence an officer’s incomplete and non-verbatim summary of a witness statement the Crown claimed to be “credible and trustworthy statement” within the meaning of s.540(7). As here, the officer’s notes of the statement were an incomplete and non-verbatim summary of a witness statement. At para. 80 of his decision, Paciocco J. (as he then was) rejected the Crown’s argument that the officer’s notes were “made by a witness in writing or otherwise recorded” within the meaning of the section. He also found that “even if the section does not preclude the admission of this kind of evidence, the off-camera statements offered to the Court did not make the “credible or trustworthy grade.” The problem for the prosecution in this case is similar. At para. 80, Justice Paciocco pointed out that “before a statement can reasonably be credited or trusted, it must be possible to place a degree of confidence that what was being offered for reliance was in fact said.” As was the case before Justice Paciocco, I am not in a position to know whether notes contain what J.K. actually said or was Detective Gallichon’s interpretation of what J.K. said.

[73] In my respectful view, the summary of the interview with J.K. does not constitute a hearsay “statement” of J.K. This finding is fatal to the Crown’s application with respect to the admissibility of J.K.’s narrative to Detective Gallichon.

Applying the principled exception test

[74] Assuming that the notebook summary is a statement of J.K., is it admissible for the truth of its contents? Once again, the specific hearsay danger is the unavailability of J.K. for cross-examination.

[75] In my view, there is an absence of procedural guarantees of trustworthiness. The statement was not made under oath or solemn affirmation. The statement was not recorded because J.K. refused to provide a videotaped statement. While Detective Gallichon’s usual practice is to warn a witness about the consequences of not telling the truth, she did not have a specific recollection of doing so in this case. Nor did she record that she did in her notebook. I am not satisfied that it was done. I also find that she did not warn the complainant that the Ottawa Police Service had a mandatory charging police before the interview. In her notes, Detective Gallichon wrote that this occurred at the end of the interview when the complainant told her she did not wish to see the accused charged.

[76] I have already pointed out several problems relating to the sufficiency of the record of J.K.’s narrative to Detective Gallichon and need not be repeated. The circumstances surrounding the making of the statement casts considerable doubt as to the accuracy and, therefore, the inherent reliability of the statement. In this regard, I also take into account that during the interview, hospital personnel were coming in and out of the room. J.K. told Detective Gallichon was “scared” about her impending surgery that morning. As well, she told the officer that she had consumed alcohol and smoked weed prior to the incident in the van and that some parts were “not clear”. Whether or not J.K. had a motive to fabricate is unclear. J.K. told Detective Gallichon that she didn’t want to see the accused charged and that she still loved him. On the other hand, J.K. told Constable Darling that she didn’t want to get into any trouble and refused to provide a sworn statement or even sign the officer’s notebook.

[77] To overcome the hearsay danger identified earlier and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination. As stated in Bradshaw, the corroborative evidence must rule out any alternative explanations such that the only remaining likely explanation for the statement is J.K.’s is truthful about, or the accuracy of, the material aspects of the statement. That burden is on the Crown to demonstrate on a balance of probabilities.

[78] I agree with the Crown that there is some independent corroborative evidence to support its position that J.K. was sexually assaulted in the van. That evidence includes the nature of J.K.’s injuries, her blood on the van’s front seats, physical evidence that she fled in her bare feet to find refuge in the apartment building as well as her physical condition (visibly bleeding from her vaginal area) and her distraught emotional condition when she was let into Luna Ferguson’s apartment.

[79] The Crown also submits that the statements made by J.K. to Luna Ferguson “I was raped” and “Kerry raped me” are corroborative of sexual assault. I respectfully disagree. Independent evidence which supports the truth of the assertions is corroborative, not prior consistent statements made by the declarant to others: see R. v. Couture, [2017] S.C.R. 517 at para 83.

[80] The real issue in this analysis is whether the corroborative evidence that supports J.K.’s account to Detective Gallichon that she was sexually assaulted rules out alternative explanations so that the only likely explanation is that she was, in fact, sexually assaulted. The defence submits that there are several alternative explanations for what could account for the complainant’s injuries as well as her blood in the van. One alternative explanation is that the injury to J.K. could have been an accident during the course of consensual sexual activity.

[81] As I indicated earlier in these reasons, consent and accident are two of the live issues for the trier of fact to consider. The question is whether J.K.’s statement is so reliable that contemporaneous cross-examination would add little if anything to the process? Upon a consideration of all of the evidence, I am not persuaded on a balance of probabilities that this is the case.

[82] For all of those reasons, I conclude that Detective Gallichon’s notes of her interview of J.K. are not admissible for the truth of their contents and will not be received in evidence.

Released: April 3, 2023 Justice T. Lipson