COURT FILE NO.: CR-15-10000333-0000 DATE: 20160 926

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN AND SHAKEIL WHEATLE

BEFORE: M.A. Code, J.

COUNSEL: Elizabeth Jackson, counsel for the Crown Applicant Edward Royle and Paul Aubin, counsel for the Defence

HEARD: September 23, 2016

ENDORSEMENT

RULING ON MOTION TO ADMIT HEARSAY

A. INTRODUCTION

[1] The Crown has brought a Motion mid-trial seeking the admission of certain hearsay evidence. The accused, Shakeil Wheatle (hereinafter, Wheatle) is charged with the first degree murder of one Daniel Davis on July 19, 2012. The trial commenced last week with jury selection followed by three days of evidence.

[2] On the fourth day of trial, the Crown called Jerome Bent (hereinafter, Bent) as a witness. He was originally Wheatle’s co-accused and was charged with the same murder. However, prior to trial, he pleaded guilty to second degree murder and was sentenced to life imprisonment. When he was called as a Crown witness at the present trial, he declined to be sworn. After a number of warnings, and after obtaining advice from his lawyer, he maintained his refusal to testify. He was cited for contempt in facie, and was remanded for trial in a few weeks. See: R. v. K. (B.) (1995), 102 C.C.C. (3d) 18 (S.C.C.); R. v. Arradi (2003), 2003 SCC 23, 173 C.C.C. (3d) 1 (S.C.C.).

[3] As a result of these developments, the Crown brought the present mid-trial Motion, seeking to admit certain out of court utterances made by Bent. The Crown relies on the principled exception to the hearsay rule. See: R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.).

[4] I heard the Motion on the fifth day of trial and reserved judgment over the weekend. These are my reasons for judgment.

B. FACTS

[5] The Crown’s case includes a number of different bodies of evidence. Witnesses present at the crime scene, video surveillance evidence, and projectiles and shell casings seized from the autopsy and from the crime scene, all tend to establish the circumstances of the offence. I am satisfied that it can reliably be inferred from this evidence that three cars arrived near the crime scene, that three armed persons approached the victim Daniel Davis and several of his friends, that all three drew guns and fired at Davis, and that the three gunmen then fled in the waiting cars. The ballistics evidence establishes that a minimum of three guns were fired. The autopsy evidence establishes that eight bullets struck the deceased Daniel Davis, including a fatal bullet that went through his neck.

[6] There is no direct evidence of identification, given that the three gunmen were not known to the witnesses, it was dark outside, the witnesses were not close to the gunmen, and all three were wearing non-descript black clothing. The evidence of identification comes largely from the fact that a particular handgun was subsequently found in Bent’s possession and that gun was used to fire one of the projectiles seized at the autopsy, according to the ballistics expert. In addition, both Bent and Wheatle made tape-recorded incriminating statements to an undercover police agent, Jermaine Graham (hereinafter, Graham), in which they appeared to admit their participation in the shooting of Daniel Davis. They referred to the third gunman as “Bred” or “Bread.” He has never been reliably identified. Finally, Bent’s girlfriend at the time, one Amanda Rumbolt, is expected to testify next week in accordance with her evidence at the preliminary inquiry. Her anticipated evidence is that she drove one of the cars to the crime scene, dropped Bent off, and then picked him up after hearing gunshots. It is anticipated that she will also place Wheatle at the crime scene, entering and exiting from one of the other cars.

[7] The voir dire evidence on the present Motion includes all of the above summarized evidence, either heard to date at the trial or filed in a large documentary record. That Motion record was helpfully made available to counsel and to the Court, prior to trial, as it was anticipated that Bent would refuse to testify and that the present Motion would then become necessary and would have to be argued on short notice.

[8] The particular evidence that the Crown seeks to tender at trial, in hearsay form, is various utterances made by Bent to the undercover agent Graham. I will refer to this out of court statement in greater detail in the next section of these reasons, when analysing its reliability. In brief summary, the statement was made on April 3, 2013 in the cells of a Toronto courthouse. Both Bent and Graham were on remand and they remained in the court cell, talking to each other for about three and a half hours from 10:53 a.m. until 2:27 p.m. Given that the Davis homicide occurred on July 19, 2012, Bent’s statement to Graham on April 3, 2013 was made about eight and a half months after the Davis homicide. Bent and Wheatle were charged with the homicide in September 2013.

[9] The lengthy conversation between Bent and Graham is both audio-taped and video-taped, although the video camera is outside the court cell and it does not provide a full frontal view of Bent while he was speaking. I was initially concerned about the quality of the audio recording, when it was first played in court. However, I was provided with headphones and listened to the relevant portion repeatedly in my chambers. This relevant portion occurs relatively early in the conversation, beginning at about p. 17 of the transcript and concluding at about p. 30 of the transcript. It is not lengthy, lasting about five minutes. The overall quality of the recording at this early stage of the conversation is relatively good, although at times Bent was speaking quietly and/or quickly and/or incomprehensibly, so some of the context is not available. During this relevant portion of the lengthy conversation, Bent appears to discuss the shooting of Daniel Davis in some detail. He also appears to refer to “Deegs” and “Bred” as his two accomplices. He stands on the cell bench early in this portion of the conversation, moving and gesturing in an animated manner. There is a third prisoner seated on the other side of the cell. I am told that he is an undercover police officer.

[10] The entire conversation is contained in 324 pages of transcript. After the apparent discussion about the Davis homicide, early in the conversation, Bent and Graham went on to discuss a number of other crimes. Bent incriminated himself in a second homicide in which the victim was Delano Coombs. Bent also went on to plead guilty to first degree murder in relation to this second homicide. As a result, he is now serving two life sentences with no parole eligibility for 25 years.

[11] I understand that Bent’s former girlfriend, Amanda Rumbolt, will testify that “Deegs” or “Deego” is Wheatle’s nickname. Accordingly, the Crown seeks to tender Bent’s hearsay statement to Graham in evidence, both to prove Bent’s own involvement in the homicide and certain details relating to the homicide, and to prove Wheatle’s involvement in the homicide.

[12] I should conclude this summary of the relevant facts by noting that the defence does not seriously dispute the fact that the three gunmen committed second degree murder, as “co-perpetrators” or “joint principals,” when they shot and killed Daniel Davis on the night in question. Mr. Royle realistically concedes that the only live issues in the case are whether Wheatle was one of the gunmen and whether the murder was “planned and deliberate.”

C. ANALYSIS

[13] The principled exception to the hearsay rule evolved somewhat between 1990 and 2006. That evolution is helpfully traced and synthesized in Khelawon. There is no dispute that the “necessity” criterion is satisfied in the present case, given Bent’s refusal to testify. The argument focused entirely on the “reliability” criterion.

[14] The modern approach to “reliability” focuses on two separate lines of inquiry. In addition, probative value and prejudicial effect must be balanced at the end of the analysis in some cases. Charron J. summarized this three part approach in R. v. Khelawon, supra at para. 49, speaking for a unanimous Court:

The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. 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. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

Also see: R. v. Dupe, 2016 ONCA 653 at paras. 44-47.

[15] The two lines of inquiry into “reliability” are not entirely separate, and factors from one line of inquiry can be considered together with factors relating to the other line of inquiry. However, there are practical reasons to begin with the second line of inquiry. As Charron J. explained in R. v. Couture (2007), 2007 SCC 28, 220 C.C.C. (3d) 289 at paras. 80, 87 and 99 (S.C.C.), speaking for the majority:

Since the central underlying concern about hearsay is the inability to test the truth and accuracy of the statement, the reliability requirement is aimed at identifying those cases where this concern is sufficiently overcome to justify receiving the evidence regardless of this difficulty. As explained in Khelawon, the criterion of reliability is usually met either because of the way in which the statement came about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth. These two ways of demonstrating sufficient reliability are not mutually exclusive and factors relevant to one can complement the other.

Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes for testing the evidence. The presence or absence of adequate substitutes is usually more easily ascertainable. Further, whenever the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact.

In some cases, the trustworthiness of the statement itself may be combined with the presence of adequate substitutes for testing it to meet the criterion of reliability. Recall U. (F.J.) where the striking similarities between the complainant’s statement and the independent statement made by the accused were so compelling that the only likely explanation was that they were both telling the truth. In addition, the complainant was available to be cross-examined.

[Emphasis added.]

Also see: R. v. Devine (2008), 2008 SCC 36, 232 C.C.C. (3d) 1 at paras. 22-24 (S.C.C.); R. v. Dupe, supra at para. 47.

[16] Given that the second line of inquiry (referred to as “procedural reliability”) should be considered first and the first line of inquiry (referred to as “substantive reliability”) should be considered second, the numbering of these two lines of inquiry has been reversed in some of the more recent cases. See, e.g., R. v. Youvarajah (2013) 2013 SCC 41, 300 C.C.C. (3d) 1 at para. 30 (S.C.C.) and R. v. Dupe, supra at paras. 45-6. I will continue to refer to the two lines of inquiry by the same numbers used in Khelawon and in Couture, the two leading Supreme Court cases, in order to avoid confusion.

[17] I am satisfied that the second line of inquiry (“procedural reliability”) does not lead to a finding of “threshold reliability” in this case. There is little about the circumstances surrounding Bent’s statement to Graham that allows “its truth and accuracy [to] nonetheless be sufficiently tested” because “there are adequate substitutes” for the normal way of testing evidence in court, that is, “under oath and under the scrutiny of contemporaneous cross-examination” as Charron J. put it in R. v. Khelawon, supra at para. 63. In particular, the following features of the statement are noteworthy in relation to this second line of inquiry:

• In its favour, the statement is audio-taped and video-taped. As a result, there is a relatively accurate record of what was said and there is some record of the declarant’s demeanour. However, even these two favourable criteria have some shortcomings. As previously noted, some of the context is missing or unclear and there is not a good view of the declarant’s face;
• More importantly, the occasion does not inspire confidence. The two speakers appear to be old friends who are experienced in the criminal milieu. They were passing time in their court cell, telling stories about past crimes. Needless to say, they were not under oath or under any duty to tell the truth or under any duty relating to accuracy and reliability. The occasion had no solemnity and there were no consequences for lying, boasting, exaggerating, or relying on hearsay and rumour. See: R. v. Couture, supra at para. 89;
• Furthermore, considerable time had passed since the Davis homicide. Bent was not spontaneously recounting events that were fresh, before there had been time for contamination from other sources. See, e.g., R. v. Couture, supra at para. 84; R. v. Khan (1990), 59 C.C.C. (3d) 92 at 99-100 (S.C.C.); R. v. Letourneau and Tremblay (1994), 87 C.C.C. (3d) 481 at 528-9 (S.C.C.);
• Most importantly, there is no opportunity to cross-examine the witness, given Bent’s refusal to be sworn and testify. This factor alone, distinguishes the present case from many of the leading authorities dealing with the second line of inquiry, in particular, R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) and R. v. Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.).

[18] In light of the above circumstances, I am satisfied that this is a case like R. v. Couture, supra at para. 91, where “Absent the opportunity to cross-examine … there is no basis upon which a court could find in this case that there are adequate substitutes for testing the accuracy and truth of [the] statements.” Accordingly, the reliability of Bent’s statement depends on the first line of inquiry, which concerns “the inherent trustworthiness of the statement” and therefore requires inquiry “into those factors tending to show that the statement is true or not.” See: R. v. Khelawon, supra at para. 92.

[19] In relation to this first line of inquiry (“substantive reliability”), the Crown is on stronger ground because there is ample corroboration of much of Bent’s statement and because he incriminated himself in much of the statement. In this context, corroboration means “independent evidence that supports the truth of an assertion.” See: R. v. Couture, supra at paras. 83 and 84, where the majority of the Court held that “corroboration can be powerful to substantiate the trustworthiness of a statement” and it can “lend much cogency to the statement.”

[20] There is abundant corroboration, in my view, concerning Bent’s own involvement in the Davis homicide. In particular, the police seizure of one of the guns used in the homicide from Bent’s clothes closet, his girlfriend Amanda Rumbolt’s testimony (at the preliminary inquiry and anticipated at trial) placing Bent at the crime scene at the time of the shooting, and Bent’s subsequent guilty plea and conviction for the murder, all combine to overwhelmingly confirm Bent’s own guilt for purposes of the present trial. Furthermore, Bent’s statements concerning his own involvement in the Davis homicide were against his own interests, which is one of the longstanding rationales for exceptions to the hearsay rule. See: R. v. Youvarajah, supra at para. 59; R. v. O’Brien (1977), 35 C.C.C. (2d) 209 (S.C.C.); Bryant, Lederman & Fuerst, The Law of Evidence in Canada, 3rd Ed. 2009, at pp. 273-283. Indeed, Mr. Royle is willing to make an admission concerning Bent’s own involvement in the murder of Daniel Davis, should the Crown seek such an admission.

[21] Many of the details about the murder set out in Bent’s statement to Graham are similarly reliable because they involve facts that are not open to serious dispute, based on the evidence called and anticipated at trial. In particular, the following assertions by Bent in his statement to Graham are substantially corroborated: that three parties were involved in the shooting; that one of the parties was known as “Bred”; that “Bred” used a “forty Sig Sauer” handgun; that Bent himself used a “.38 special”; that the deceased Davis was “wearing like an all-red tee-shirt”; that words such as “chill just chill” were spoken to Davis to reassure him, so that he would not move away; that a girl who was with Davis at the time ran from the scene after the shooting and “was running beside us”; that Bent was “running back to the car” while “my baby mama [was] pulling out”; and that Bent “got in the car.” All of these parts of Bent’s statement to Graham are “inherently trustworthy,” in my view, as that term is used in Khelawon.

[22] However, it is a much closer case when it comes to the parts of Bent’s statement that incriminate Wheatle. It is this critical aspect of the hearsay statement that is strenuously resisted by the defence. In this regard, the following circumstances are important:

• The transcript of Bent’s statement relied on by the Crown, and apparently reviewed and approved by the witness Graham, includes three alleged references to Wheatle (the name “Deego” is used in the transcript). However, I can only hear two references to “Deegs.” The third alleged reference (which is arguably the most important) is entirely absent from the audio-tape, in my view;
• The two apparent references to “Deegs” that I can hear on the audio-tape occur at places where the context is not clear. Bent is either speaking quietly, quickly, or incomprehensibly at these points and so it is not obvious or clear what the two references to “Deegs” mean. Although the broader context of the statement infers that Bent is ascribing some role to “Deegs” in the Davis homicide, it would undoubtedly be useful to cross-examine Bent on these parts of the statement. See: R. v. Dupe, supra at para. 57;
• Some of the factors considered in relation to the second line of inquiry also relate to the first line of inquiry. In particular, the occasion on which the statement was made (a jailhouse discussion between two detainees about their past crimes), the lack of contemporaneity with the Davis homicide, and the opportunity for contamination, do not enhance the “inherent trustworthiness” of the statement;
• The parts of Bent’s statement in which he speaks about someone else’s involvement in the crime are not against his own interests and, therefore, lack this particular badge of trustworthiness. See: R. v. Youvarajah, supra at para. 59. However, it should be noted that Bent did not appear “to minimize his role in the crime and to shift responsibility to … a co-accused,” unlike the facts in Youvarajah, supra at para. 33;
• Finally, the one factor that favours the reliability of the parts of Bent’s statement that incriminate “Deegs” is the existence of some corroboration. Wheatle’s own statement to Graham is corroborative, as is Amanda Rumbolt’s evidence placing Wheatle at the crime scene. In particular, the Crown relies on a number of similarities between Bent’s statement to Graham and Wheatle’s statement to Graham. However, the strength of this latter consideration is somewhat weakened by the amount of time that had passed between the Davis homicide (in July 2012) and the making of Bent’s and Wheatle’s statements to Graham (in April and June 2013), together with the opportunities for cross-contamination. It is apparent from the two statements made to Graham by Bent and Wheatle, that stories or information about the Davis homicide had been circulating in the community. In this regard, the present case is distinguishable from R. v. U. (F.J.) (1995), 101 C.C.C. (3d) 97 (S.C.C.) where there were “striking similarities” between two out of court statements. The two statements in F.J.U. were made independently, by the complainant and the accused, at the time of arrest and before there was an opportunity for cross-contamination.

[23] As stated previously, it is a close case as to whether the parts of Bent’s statement to Graham that incriminate Wheatle are “inherently trustworthy” and rise to the level of “threshold reliability.” However, I am satisfied that the totality of the circumstances, in particular the five circumstances detailed above, lead to the conclusion that these parts of the statement cannot be fairly and reliably introduced in their hearsay form.

D. CONCLUSION

[24] In the result, the parts of Bent’s statement to Graham that are “inherently trustworthy,” as outlined above, are admissible, whereas the parts that are not “inherently trustworthy,” as outlined above, are not admissible. I should acknowledge the assistance that I obtained in taking this approach, differentiating between different parts of the out of court statement, from MacDonnell J.’s oral ruling in R. v. Stewart and Huie, unreported, November 6, 2015. In that case, he admitted those parts of an agreed statement of fact, read in on a guilty plea, that incriminated the declarant Devon Hartwell who was pleading guilty. However, he did not admit those parts that tended to incriminate Hartwell’s co-accused, Stewart and Huie. Of course, it is trite law that parts of a witness’ evidence may be reliable and other parts may be unreliable, and juries are routinely instructed to this effect. That is the approach I have taken on this Motion, as parts of Bent’s out of court statement are inherently trustworthy, but other parts are less trustworthy. There was no suggestion that the reliable parts of Bent’s statement could be excluded under the residual discretion, balancing probative value and prejudicial effect.

[25] There may be difficulties in editing Bent’s statement, in order to admit only those parts that relate to Bent’s own involvement and those parts that relate to the reliably corroborated details about the Davis homicide, while editing out the references to “Deegs.” It may be apparent to the jury that Bent did refer to some other party to the offence and that the reference has been edited. It may also be misleading not to indicate that he did refer to some other party. There may be additional tactical reasons for not wanting the evidence to go in in this form, in front of the jury. In this regard, I have proceeded on the assumption that the Crown is willing to seek, and the defence is willing to make, reasonable admissions about those parts of Bent’s statement that do not seem to be controversial. For example, there could be a simple admission to the effect that Bent admitted his own involvement in the shooting of Daniel Davis and that he also admitted certain surrounding circumstances about the events that evening (as set out in my reasons above).

[26] I reserve the right to re-visit this ruling, or to do the editing myself, if the form in which the evidence is to be admitted at trial raises difficulties. However, for now, I leave that matter to counsel.

[27] I would like to thank all counsel for their thorough materials and helpful submissions on this difficult mid-trial Motion that arose on short notice.

M.A. Code J. Date: September 26, 2016