Court File and Parties
COURT FILE NO.: CR 11-3244 DATE: 2020/04/14 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown M. Dean and S. O’Brien on behalf of the Applicant/Crown
- and -
JEREMY HALL Accused D. Derstine and R. Gregor for the Respondent/Accused
HEARD: February 6, 7, 10, 11, 12, 18, 19, 20, 21, 28, and March 2, 2020
Ruling on Crown Application to Admit Carol Ann Eaton’s Statement for Substantive Use - KGB Application
1The accused, Jeremy Hall (“Hall”) is charged with the first degree murder of Billy Mason (“Mason”). During the trial, the Crown attorney sought to introduce the second statement (‘the statement”) taken from Carol Ann Eaton (“Eaton”) by the police on August 26, 2010 pertaining to her knowledge or involvement in the matter before this Court.
2I granted the Crown’s application, what is referred to as a “KGB application” (R. v B. (K.G), [1993] 1 S.C.R. 740). On March 2, 2020, I provided a brief oral ruling to the parties with reasons to follow. These are my Reasons. [1]
Background
3Eaton is a material witness in these proceedings. On August 26, 2010, Eaton provided two statements to Detective Mark Loader (“Loader”). The second of these statements is the subject of this Application as it implicates Hall in the killing of Mason and the subsequent disposal of his remains in an open-air bonfire at the farm where both Eaton and Hall resided at the time.
4Eaton failed to attend court and a material witness warrant was issued. Eventually Eaton was located and remained in custody during the course of her evidence at trial and the voir dire that ensued.
5Eaton recanted. She maintained that although she has little recollection of providing the statement to Loader, everything she said that implicated Hall was a coerced lie. Eaton insisted that she has no truthful evidence to provide that could connect Hall to the alleged murder of Mason.
6Pursuant to an application under s 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, the witness was declared adverse. The Crown cross-examined Eaton, who continued to maintain that she could not recall portions of her statement as being true or correct or that she was provided a script by police as to the information she revealed. She also maintained that she did not recall any of the relevant discussions with the interviewing officer. Eaton refused to adopt a significant segment of her statement as being accurate and provided various explanations.
Positions of the Parties
7The Crown applied for the introduction of the witness’ second statement to the police for its substantive use at trial. The Crown does not seek to introduce Eaton’s first statement provided earlier that same day, but merely proffers the statement and surrounding circumstances in support of the legal basis for threshold reliability to admit her second statement.
8The Crown says that prior to giving her statement, Eaton was warned about the consequences of providing misleading information. In addition, the statement was taken under oath and fully video and audio recorded. Eaton took no issue whatsoever with regards to any or all of the other background details at the time of her providing the information to Loader and was fully cooperative and open in her discussions with the officer and with the details she provided.
9The Crown submits that procedural reliability has been made out by virtue of the circumstances described by the various witnesses and in course of the giving of the video statement itself. There are sufficient means to test the truth and accuracy of Eaton’s statement that warrant admission pursuant to the principled approach, and therefore, a consideration of substantive reliability is not necessary at this juncture. The ultimate reliability of the statement can be assessed by the trier of fact.
10In the alternative, while the Crown says that it does not need to rely on substantive reliability to support its position, it invites this Court to consider those factors should it be necessary to sustain the statement’s threshold admissibility. The Crown submits that the collaborative presence of guarantees of both procedural and substantive reliability in Eaton’s statements to police establish their threshold reliability and warrant their admission pursuant to the principled approach.
11Mr. Derstine, on behalf of his client, opposes the admission of the Eaton’s statement and the Crown’s ability to use the statement for the truth of its contents at this trial. While necessity is conceded, the substantive or procedural reliability is wanting and the Crown has not established threshold reliability. The statement does not disclose sufficient procedural or substantive guarantees to justify admission. As such, the application to admit the KGB statement into evidence should be dismissed.
12The defence says that Eaton’s incarceration throughout the duration of her testimony probably impacted her demeanor. There can be no doubt that she found herself in an unenviable and regrettable position at this trial. At times, she was responsive to questions; at others, she was not. Although her testimony in chief was laborious, tedious, combative and at times seemingly interminable, it was completed, nonetheless. Several of her assertions, such as her testimony about whether her house ever got shot up, seemed to plainly disclose an unwillingness to be credible under oath.
13The defence submits that Eaton, while testifying, presented as angry, exhausted, and defeated. Eaton’s disdain towards the police was unmasked. She ultimately extended this resentment to Mr. Dean throughout his questioning on the grounds that his inquiries were repetitious, tiring, and indicative of a lack of empathy for the abuse she had suffered at the hands of the police. She repeatedly gave evidence that both the passage of time and the trauma she has endured impacted her ability to remember. She claimed that it was unsurprising that she would forget what she said to Loader, because what she said was a lie. Eaton claimed to have no memory of the majority of exchanges in her statement, although she readily accepted that such exchanges took place. She declined all offers by Mr. Dean to have her memory refreshed on the grounds that anything she told police pertaining to Hall was fabricated.
14The defence says that Eaton was coerced, induced and threatened by the investigating officers and had a script to follow. She was subject to repeated harassment by the police and threats were made to her. She was under duress and, as such, her statement was untruthful, involuntary or unreliable. There is ample evidence that at the time of giving her statement, Eaton believed that police could take her children, or she could be put in jail if she did not cooperate with the police. Prior to the giving of that statement, Loader indicated to Eaton, when she was complaining about threats made to her by Mathews and Inspector Greg Walton (“Walton”), that it would be reasonable for CAS to take her children if she was growing marijuana.
15The defence submits that Eaton’s KGB statement is neither procedurally nor substantively sound. Although it is conceded that the statement contains staples of procedural safeguards, namely an oath and the presence of video recording, it lacks proof of voluntariness and there is no meaningful opportunity for defence to test the veracity of her evidence. Such opportunity in form exists, but in substance, due to her lack of memory, is illusory. Also relevant to the question of procedural reliability is the conduct of the late Sgt. Ian Matthews (“Matthews”) towards Eaton. Eaton’s inability to recall does not open the door to the Crown’s application as there cannot be meaningful cross-examination. Further, there is a suggestion of a quid pro quo being offered to her. Overall, the statement does neither meet substantial nor procedural reliability for its admission.
The Evidence at Trial and in the Voir Dire
Carol Ann Eaton
16Eaton adamantly and consistently maintained that her second statement to Loader was untruthful and coerced by Mathews and Walton. She insisted that these officers tormented her in the months leading up to her statement (and subsequently) through persistent harassment, public humiliation, and fear tactics involving the threat of incarceration and the taking of her three young children. She testified that at the time of her statement she was under “intense duress and trauma”. When attempts were made to have Eaton admit that she was being truthful with Loader, she was intransigent. She insisted that she had no evidence whatsoever that would tend to suggest that Hall was guilty of murdering Mason. Eaton asserted, “I did what I had to do considering my babies. I did the best I could in the moment”.
Murray Eaton
17Murray Eaton (“Murray”), father to Eaton, is a retired member of the civil service and former police officer. Murray testified that he was present on the occasion during which Walton and Matthews were attempting to speak to Eaton at her home, and on two subsequent occasions at his Brampton residence when he and his daughter met with two officers, one of whom was Walton. He recalled a time when he received a phone call from Walton. Walton wished him to speak to Eaton, who was refusing to come out of her residence and engage with the police. Walton agreed to assist the police. When he arrived at his daughter’s residence, he spoke to her through the door, telling her she should come out and speak to the police. She did not want to come out and told him she did not want to speak to Matthews, who was present on scene. Eaton eventually came outside and spoke to the police. Murray testified that he had no knowledge of what was said between the parties. Even though he was not privy to the conversation, he could tell that his daughter was upset, being hostile with the officers, and clearly did not want them there. He described the officers as calm, professional, and in control.
18After the police left, Murray kept encouraging his daughter to speak to the police, or at least listen to what they had to say. Ultimately, Eaton agreed to meet with police on two conditions; that that the meeting take place at Murray’s residence and that Matthews not be present. These terms were satisfied.
19Walton and officer Anthony Renton (“Renton”) attended Murray’s home. Both Murray and Eaton were present. Murray recalled Walton speaking about Hall. He said that Hall was “a violent person” and that if she were to testify she would “need protection” because “something may occur”. Police did not threaten Eaton and Murray described them as gentle and patient. Eaton was told that if she were to give a statement, she would not be in danger of being charged. They told her to take the information they were providing to a lawyer and get a professional opinion about providing a statement. One to two months passed and during that time Murray continued to encourage his daughter to speak to the police. The police did not contact her in the interim.
20In part, as a result of her own fear and safety from Hall, in August 2010, Eaton initiated contact with police and she agreed to meet with them again at her father’s residence. The same four parties were present for the second meeting. During this meeting, Walton did most of the talking. He asked Eaton why she was willing to cooperate with the police now and she responded that it “felt like the right time” and expressed her fear of Hall. At the meeting, the topic of Mason was brought up. Eaton made it clear that she did not want to speak about Mason in front of her father. The topic of illegal firearms was discussed. Throughout this meeting, Murray described Eaton as polite, cooperative and “the type of person you would want to work with”. Murray testified that his daughter was genuinely interested in witness protection because she was scared of Hall. She also wanted to go to British Columbia and get a “new start”. She was dissatisfied with her life in Ontario.
21On cross-examination, Murray agreed that the police attempts to get in touch with Eaton were persistent. He wanted his daughter to speak to the police because he did not want her to end up in trouble. Murray agreed that he had some control over Eaton’s living situation. At all times, Eaton made it clear that she did not want anything to do with Matthews. She told her father that she was upset that Matthews had been speaking to her. She informed her father that she believed Matthews to be sending other officers to her house “all the time”. Murray recalled being told by Eaton that at one point in time police pulled into her driveway at 2:00 a.m. with their sirens on. She complained about the police peering in her windows. Murray recalled Eaton also complaining about Walton but the timing is unknown, (more likely after September 2010). She told her father that when she refused to speak to Walton at her work, he spoke to her Supervisor and she was fired. Murray recalled Eaton telling him that police had threatened to take her children, threatened to arrest her, and accused her of participating in a marijuana grow-operation.
Anthony Renton
22The crux of Renton’s evidence was that during the two meetings he attended with Walton there were no threats towards Eaton. These meetings took place on January 22 and August 25, 2010. At the first meeting, Eaton was quiet and reserved. At the second meeting, Eaton was more open. It was clear that she was fearful that she could be implicated in offences pertaining to the hidden firearms and their intended use. Eaton went on to disclose details about these firearms. While these firearms had nothing to do with the Mason homicide, she was, however, worried that the guns would be used to kill someone. Renton described Eaton as someone that was “clearly looking for help” and “clearly fearful of Hall”. She was also afraid the firearms would be used on her.
23The second meeting lasted approximately 1.5 hours. At times, Walton was asking Eaton questions about the Mason homicide. She provided general responses. None of this was recorded. Renton did not find the lack of recording odd. He said Eaton did not give a statement. Although admitting that various questions were being posed, he maintained that she was not being interviewed.
Greg Walton
24Walton was the case manager for the Mason homicide investigation. At the time, he held the rank of Detective Inspector with the OPP. When Walton came on board, he was primarily working with the Hamilton Police Service (HPS) as they were armed with certain information and previously had carriage of the investigation. Matthews of the HPS was the case manager of the investigation prior to Walton’s arrival, after such time Sgt. Matthews role became “undefined”. Mathews’ only contact with Eaton in Walton’s investigation was during the first meeting in January 2010. Down the line he brought in Renton and Loader.
25Walton testified that Eaton was a fearful witness that wanted and sought his protection. Walton originally responded that Eaton’s statement “contributed” to the arrest of Hall. He ultimately agreed that there were insufficient grounds to arrest Hall based solely on the statements of Mr. Lusted. On the first visit to the residence, Eaton would not come out of her house. Walton remained on scene with Matthews. Matthews called Murray, who lived just around the corner. Walton agreed that he and Matthews had the intention of enlisting Murray to come over and coax Eaton to exit her residence to speak with police. Walton testified that Murray arrived on scene, spoke to police, entered Eaton’s residence or spoke to Eaton through the door. Walton recalled speaking to Eaton on Murray’s phone and telling her they would not arrest her. He agreed that when Eaton came out, she was upset. Walton testified that when Eaton would not exit her residence, “it seemed appropriate to take additional steps to send a message to her about the reason for our visit”.
26Walton testified that he had smelled marijuana at or near the Eaton residence. The topic of a marijuana grow-op and CAS involvement was discussed and was “used as a mechanism to show her we were there to help” and to build rapport. He testified that at no time did he or any officer ever threaten to call CAS, but he merely wanted to advise Eaton that she was at risk of losing her children if she engaged in such behaviour. On February 23, 2010 Walton received a call from Eaton’s lawyer who indicated that he should not have any further contact with Eaton. Walton ceased contact with Eaton as a result.
27On August 24, 2010, Walton understood that Eaton would meet with police provided that no Hamilton police officers were present. Walton testified that he phoned the Guelph Crown attorney to confirm that Eaton would not be charged for her involvement in any disposal of ashes. He then communicated this information to Eaton. Walton did not recall saying anything in jest.
28Eaton voluntarily went to the Stoney Creek storage site where the firearms were located and showed the police where they could be retrieved. After the two statements, Walton and Loader had a discussion with her about witness protection. It was anticipated that Eaton would meet with the witness protection person that Friday.
29On September 2, 2010, Walton and Loader met with Eaton and she took them to the firearm trench at the back of her residence. She then accompanied them to the Alma farm where she directed the officers to “where Hall directed her to clean up the remnants of the fire”. Eaton directed police to “an area that had already been searched prior”.
30On September 17, 2010, Walton advised Eaton that she had not been accepted into witness protection based on her criteria. Instead, Walton offered Eaton a “Plan B”, which was a witness assistance agreement. Eaton was provided with some funds to break her current lease and relocate. Both Walton and Eaton signed the assistance agreement. Walton admitted that this was the only time in his 34 years as a police officer that he utilized this type of agreement.
31On December 14, 2010, Walton met with Eaton and provided her with a cheque for $10,000. The money was a reward for providing information in the Mason homicide investigation. Walton indicated he delivered the cheque because he was continuing to ensure that no Hamilton police officers had any contact with Eaton.
32Walton was confronted with a portion of a recording of the March 16, 2011 phone call. In that recording, Eaton tells Walton that she is terrified of him because of the day he attended at her residence with Ian, unlocked her door, mentioned a grow-op and talked about taking her children. Walton’s acknowledged response is “Yeh. So you have to understand that I am going to say and do whatever I need to say and do back then to win you over because it’s the right thing to do because I’m here… you have to understand, Carol Ann, at that time I knew that he was…what? Planning to kill other people. So I was trying to make sure that nobody else got killed”. When confronted with these allegations, Walton did not deny what was recorded.
33After March 2011, Eaton stopped speaking to Walton. As Eaton was not returning his phone calls, on May 30, 2011, Walton attempted to visit her at her residence. He was alone. Eaton was driving her vehicle on this occasion. She saw officer Walton in his vehicle, drove right past him, and eventually came to a stop on a side street. Walton pulled up beside her. She claimed she was t-boned by his police car. Walton denies such driving conduct.
Mark Loader
34Loader had no dealings with Eaton prior to August 25, 2010 when he was asked to assist by Walton. On that occasion, he accompanied Eaton to a storage facility in Stoney Creek to retrieve some firearms. The following day, Walton asked him to assist with taking statements from Eaton. In between statements one and two, Loader indicated that Eaton expressed concern that she would be charged for her involvement in the cleaning up of “ashes”.
35Both statements were audio-video recorded and were played in court. Eaton claimed either in her first statement or after the statements, that she was scared because Walton and Matthews had told her CAS could take her children if she was growing marijuana. Loader told her that it would not be unreasonable for CAS to take her children if she was growing marijuana. Loader indicated that Eaton wanted information about witness protection and Walton spoke to her about that. She agreed to come back to the station to provide her second statement.
36On September 2, 2010, Loader and Walton met with Eaton. She brought up witness protection with Loader and he told her that there were specialized individuals that dealt with that. Loader, at one point, provided Eaton with a cheque for $2,155, which was to be used for relocation and alarm services. Eaton took the officers to the gun trench and then they travelled to the farm where she took them to alleged burn site and the “clean up area”.
37Loader and Walton met with Eaton on March 17, 2011 because she had sent Hall yet another letter that caused the police some concern. Once again, Eaton offered him an explanation for writing the letter. She told Loader that she had placed a “fake” return address on the envelope because she did not want Hall to know where she lived. Eaton advised that she was still telling the truth and was not changing her version. The officers had accepted the explanation. Subsequently, Eaton was no longer cooperative or willing to speak to the officers.
Legal Principles
38The jurisprudence addressing the routes to admissibility of witness’ statement on the legal basis of threshold reliability can be found in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, statements under oath, warning and video: R. v. B. (K.G.), [1993] 1 S.C.R. 740 and statements confirmed by other independent evidence: R. v. U.(F.J), [1995] 3 S.C.R. 764. These routes have also been labeled as procedural reliability and substantive reliability. Another leading authority for the admissibility of these type of statements for their substantive nature is found in the Supreme Court of Canada’s decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
39Hearsay is presumptively inadmissible but can be admitted into evidence under the principled exception when it meets the criteria of necessity and reliability. The onus is on the party who seeks to adduce the evidence to establish these criteria on a balance of probabilities.
40Under the principled approach, it is trite law that admissibility is done on a more flexible basis than was found with the rigid, traditional rules. Each case must be considered on its own merits.
41Reliability is about finding sufficient indicia of reliability to give the trier of fact a satisfactory basis for evaluating the out-of-court statement’s truth. Reliability for the purpose of an application to admit an out-of-court statement is focused on threshold reliability only. Ultimate reliability is for the trier-of-fact at the end of the trial. Nonetheless, all relevant factors should be considered when determining threshold reliability. As the Court in Khelawon noted at para. 76:
The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.
42It has long been established that threshold reliability may be satisfied if there are adequate substitutes for testing of truth and accuracy of a statement (procedural reliability) or sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). The two approaches of procedural and substantive reliability may work in tandem and are not mutually exclusive.
43The Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, set out the test for admission of hearsay statements by means of the establishment of substantive reliability a follows:
A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.), at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 (S.C.C.), at para. 55).
44While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty": Smith, at p. 930. Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process": Khelawon, at para. 49. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken": Smith, at p. 933; "under such circumstances that even a skeptical caution would look upon it as trustworthy": Khelawon, at para. 62; when the statement is so reliable that it is "unlikely to change under cross-examination": Khelawon, at para. 107; Smith, at p. 937; when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about": Khelawon, at para. 62; when the only likely explanation is that the statement is true: U.(F.J.), at para. 40.
45Procedural reliability can be met by the presence of adequate substitutes for testing the truth and accuracy of the hearsay statement in the absence of a witness testifying in court and under oath. These substitutes have traditionally included: a video recording of the statement, the administration of an oath, and warnings about the consequences of lying. However, “some form of cross-examination of the declarant” such as cross-examination of a recanting witness at trial or cross-examination from a preliminary inquiry will usually be required to meet threshold reliability via procedural safeguards alone.
46It has been well-settled that the availability of counsel to cross-examine the declarant before the trier of fact goes a substantial part of the way towards satisfying the requirement for adequate substitutes and “will often suffice to establish threshold reliability.” As Coroza J. stated in R. v. Punia, 2016 ONSC 2988, [2016] O.J. No. 2304 at para. 23:
The appellate jurisprudence also holds that where the declarant is available for cross-examination, the admissibility inquiry is less focused on the question of whether there is reason to believe the statement is true, than it is on the question of whether the trier of fact will be in a position to rationally evaluate the evidence. The trial judge looks for adequate substitutes for the process that would have been available if the evidence had been presented in the traditional form: through the witness, in court in the presence of the trier of fact, under oath or affirmation, and subject to contemporaneous cross-examination.
47As Watt J.A. reiterated in R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413 at para. 81:
The most important factor in the reliability analysis, a factor that on its own goes a long way to establishing procedural reliability in the absence of an oath, is that both declarants were witnesses at trial and subject to full cross-examination on their statements and their evidence as a whole: Youvarajah, at para. 35; Couture, at para. 92 and 95: and Chretien, at para. 53. Here there were no impediments to full cross-examination. No assertion of privilege. Or claim of memory lapse. And each declarant was more aligned in support of the appellant than at odds with him.
48In effect, the courtroom experience of being `present’ can be duplicated so that the trier can assess demeanour, tone of voice and other non-verbal behaviour. Audio and video provide such adequate substitutes particularly where the declarant is available for cross-examination.
49Briefly, substantive reliability can be met if it is established that the statement is inherently trustworthy. Substantive indicia of reliability have traditionally included consideration of factors such as:
a. the spontaneity and timing of the statement; b. the presence or absence of a motive to lie; c. the striking similarity between the statements of two witnesses; d. awareness of the consequences of lying and the importance of telling the truth; e. mental capacity of the declarant; f. inducements made to the declarant; and g. the presence of any corroborating evidence.
50Bradshaw, at para. 40, draws the distinction between indicia going to procedural versus substantive reliability in the following way:
[W]here procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant's truthfulness or accuracy.
51Importantly, in Bradshaw the Supreme Court recast the approach a jurist should take to his or her consideration of corroborative evidence when using it to support a finding of threshold reliability. The Court held that a trial judge should rely on corroborative evidence to establish threshold reliability only if it shows – in the context and circumstances of the case as a whole – “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”: at para. 4.
52The court in Bradshaw, at para. 57 recommended a guideline a jurist should follow when tasked with assessing whether the corroborative evidence in question can meaningfully be considered to support a statement’s substantive reliability:
- Identify the material aspects of the hearsay statement that are tendered for their truth.
- Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.
- Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
- 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.
53There is no bright-line rule delineating the type of corroborative evidence that will establish substantive reliability. The trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence is sufficient to substantively satisfy threshold reliability. If the specific hearsay danger sought to be addressed is memory, narration or sincerity, accuracy will be the issue. If the hearsay dangers relate to the declarant's sincerity, truthfulness will be the issue.
Analysis
54At this stage, I play a limited role on this voir dire. I am exercising only an evidentiary gatekeeping function. As Watt J.A. noted in Taylor, at para. 70:
It is for the trial judge to determine whether the proponent of the evidence has established threshold reliability. Where the evidence is admitted, it is for the jury to determine how much or little they will believe of it and rely upon it in reaching their conclusion about the adequacy of the case for the Crown.
55As mentioned, the reliability requirement is usually met in two different ways, neither of which excludes consideration of the other: Khelawon, at paras. 61-63. One way is for the applicant to demonstrate that no real concern arises from the fact that the statement is offered in hearsay form because its truth and accuracy can nevertheless be sufficiently tested. In other words, there is a presence of adequate substitutes for testing truth and accuracy. The other way is to demonstrate that there is no real concern about the truth of the hearsay statement because of the circumstances in which it was made. This involves a content based assessment.
56However, where procedural reliability is met at the threshold stage, then a jurist need not consider substantive reliability. As Coroza J. observed in Punia, at para. 22:
Although these two routes to reliability are not mutually exclusive, the appellate jurisprudence on this issue suggests that in the case of a prior inconsistent statement where the declarant is available, the inquiry commences with an assessment of whether there are factors that support procedural reliability. If these factors are sufficient to test the statement's truth and accuracy, then a consideration of substantive reliability is not necessary and the ultimate reliability of the statement can be assessed by the trier of fact: see R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283
57It has been well-established that where the declarant is available for cross-examination, the admissibility inquiry is less focused on the question of whether there is reason to believe the statement is true, than it is on the question of whether the trier of fact will be in a position to rationally evaluate the evidence. The trial judge looks for adequate substitutes for the process that would have been available if the evidence had been presented in the traditional form, in court in the presence of the trier of fact, under oath or affirmation, and subject to contemporaneous cross-examination.
58In other words, the Court of Appeal for Ontario has held that the availability of the declarant for meaningful cross-examination at trial goes a long way towards satisfying the requirement for adequate substitutes and will often suffice to establish threshold reliability. When the statement is recorded on video, the case for admission is enhanced. Moldaver J.A. (as he then was) in R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.), stated at para. 76:
Accepting that cross-examination "goes a substantial part of the way" towards ensuring that the triers of fact can adequately assess reliability [see R. v. U. (F.J.), [1995] 3 S.C.R. 764, at para. 39]. I believe that when the triers also have a videotape of the declarant making the statement, the two in combination go virtually "all of the way" to providing the triers with the tools they need to adequately assess reliability.
59I note that the presence of a full opportunity to cross examine was given important consideration in R. v. Conway (1997), 36 O.R. (3d) 579 (C.A.).
60The question becomes whether cross-examination of the witness at trial affords the trier of fact a satisfactory basis for evaluating the truth of the prior statement when the evidence of the witness at trial is "I don't remember"? It may be that in those circumstances, cross-examination becomes, to a large extent, an exercise in futility and does not serve as a substitute for contemporaneous cross-examination on the prior statement.
61In R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), Doherty J.A. considered a case involving a witness who, in an out-of-court statement, identified the accused but, at trial, denied having done so. Doherty J.A. stated that, in such circumstances, although cross-examination of the witness at trial will certainly assist in assessing the credibility of the witness, it may not assist in testing the reliability of the out-of-court statement: at p. 511. He stated that "cross-examination of the maker of the statement at trial will be of limited value in assessing the reliability of the statement where the maker of the statement denies having made the prior statement." In such circumstances"special problems arise and cross-examination at trial may not provide a suitable substitute for contemporaneous cross-examination."
62Doherty J.A.'s view also finds support in Lamer C.J.'s obiter dicta in U. (F.J.), where he states at p. 794:
The first factor contributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the other explanation. However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury's ability to assess the ultimate reliability of the statement.
63Lamer C.J. does not opine that such recantations necessarily lead to a conclusion that the prior inconsistent statement is inadmissible for the truth of its contents. Rather, it must be the case that other indicia of reliability are required to support a finding that the statement is admissible: see also Conway, at paras. 29-33.
64It is apparent from the above passages that if a witness purports, even with no credibility, to not recall the prior statement, their ability to be cross examined is compromised and may weaken or destroy this route to substantive admissibility. Allied to this principle is the added concern where the witness is purporting to describe not a specific discussion which they purport to reproduce; but rather an impression gained by gestures and seemingly unrelated implied assertions. I also note that the Ontario Court of Appeal in R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, examined some aspects of this very question.
65If the trial judge concludes that threshold reliability depends on the inherent trustworthiness of the statement (substantive reliability), an inquiry must be made into those factors tending to show that the statement is true. In R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, Watt J.A. reaffirmed a list of non-exhaustive factors that judges may look to in this "content based assessment", at para. 54. [2]
66I am cognizant that even if necessity and reliability of the hearsay evidence is proven, the trial judge maintains discretion to exclude the evidence where the "prejudicial effect is out of proportion to its "probative value": R. v. Youvarajah, 2013 SCC 41, [2013] S.C.C. 41, [2013] 2 S.C.R. 720, at para. 23, Khelawon, at para. 3;
67At this stage of the proceedings, I am not to weigh the ultimate reliability, truthfulness or credibility of the statement or intrude upon my role as the trier of fact.
68Turning to this particular case, where a witness recants from a prior statement, necessity is established: Khelawon at para. 78. This is not disputed in this case.
69Further, before admitting evidence of a hearsay statement, I must be satisfied that it can be sufficiently proven to enable the jury to determine the content of the declaration. The issue is illustrated by “incomplete utterances”: R. v. Ferris, [1994] 3 S.C.R. 756, aff’g (1994), 1994 ABCA 20, 149 A.R. 1 (Alta. C.A.). In Ferris, the accused was overheard saying “I killed David”. However, the listener did not hear what was said immediately before or immediately after the utterance. Sopinka J., in a brief oral judgment, said that “[the statement’s] meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.” These kinds of conclusions are inherently suspect as far as their reliability. This is all the more so where a witness purports to be unable to recall the statement sought to be admitted. With the complete audio-video recording of both statements, I do not find that this is a valid concern in the case at bar.
70The defence argues that the test developed by the appellate courts for the admission of confessions is well-suited to making a threshold determination of whether the circumstances under which the statement was made undermine the veracity of the indicia of reliability. It is true that in R. v. Hamilton, 2011 ONCA 399, the Court of Appeal addressed the issue of the role voluntariness plays in assessing reliability under the K.G.B. and Khelawon approaches.
71However, in this case, the defence submits that I should consider or perhaps even adopt the principles of the confession rule based on Eaton’s circumstances, the facts of this case, and her material evidence. With respect, I do not support that assertion. There is no basis in legal jurisprudence to import or expand the principles of providing a police caution for the protection of an accused person’s statement to an ordinary witness, even one with material evidence to provide. In other words, there was no obligation to provide a police caution to her. That being said, voluntariness, and the overall circumstances giving rise to the witness’ statement’s reliability indicators along with other factors play a role and must be considered under the probative value and prejudicial effect analysis.
72In my opinion, the following indicators of procedural reliability have been established: both statements taken on August 26, 2010 were sworn to by Eaton and fully acknowledged by her under oath; the statements were entirely video recorded and the quality is very good; [3] and transcripts have been provided that accurately reflect what was being said.
73The consequences of providing false or misleading statements were provided to Eaton by the interviewer at the commencement of both statements. In both statements, while anxious, Eaton is cooperative, leading the discussion at times and her demeanour with the interviewer is open. There is a good interaction. She draws diagrams for the officer. She speaks without hesitation and, at times unsolicited. No cogent complaint about the officers’ conduct or threats is made. Loader’s demeanour is calm with no threatening language. During a break, Eaton mutters an apology to Hall, no doubt as a result of having chosen to speak with Loader and having provided incriminating information to the police.
74I do not accept the argument that the cross-examination of Eaton is meaningless, as defence claims that she does not recall her statement or the details therein. In my view, defence Counsel has a full opportunity to meaningfully cross-examine Eaton on her testimony and the transcripts at this trial. While she claimed not to recall the interview, she had acknowledged certain parts of her statement to Loader and adds the editorial comments that what she said was based on being influenced or coerced. Moreover she not only provides information to the police but subsequently takes them to locations where real evidence is (or potentially) can be found. During her evidence she claims to recall certain selective segments of her statement, but clearly purports to recall great details about the actions of all of the police officers in support of her allegations against them.
75In fact, in reviewing the statements, Eaton willingly volunteered information that could not have been readily known to the investigators. She provided greater details than what was envisioned or could be known to the police, (i.e. proximate locations of various points of interest, the burning or deposit of the wood, the firearm ditch at the rear of the house.) I reject her evidence that the information provided by her was scripted by Matthews.
76The reliability of a statement can be impacted where a witness gives the statement out of hope of advantage or fear of prejudice by a person in authority. Even if this was applicable in this case, I do not find that there were any threats, inducements or promises offered to Eaton during or prior to the statements. I reject her testimony regarding the witness protection program, or the circumstances surrounding any CAS involvement. I regard her evidence as entirely self-serving and contrived.
77At no time before, during or proximate to the conclusion of the statements, does Eaton raise a cogent complaint about her treatment by the police, or her unwillingness to provide information. In fact, for the immediate, relevant period, her actions belie such concerns.
78I agree with the Crown that the presence of these KGB procedural factors make the statements sufficiently reliable at the threshold reliability stage to be admitted into evidence. Every desired characteristic for evaluating the truth of Eaton’s statements is present. As mentioned, this goes a long way in satisfying threshold reliability. These characteristics provide a satisfactory basis upon which the trier of fact can rationally evaluate the truth and accuracy of her statements.
79The defence also submits that the comments made to Eaton during the taped conversation post-statement calls into question Walton’s character and his testimony given under oath to this court. His lack of note taking in this area was not coincidental, but deliberate. The content of this recording makes it apparent that his testimony that he was attempting to build rapport with Eaton was a lie. Such fact was already apparent on its face prior to the playing of the recording, but this court can be left with no uncertainty after it. Walton was asked how he could reconcile what he told Eaton with what he told this court about his attendance at her residence on January 19, 2010, Walton indicated “I was just commenting about trying to calm her down so that she would meet with me the following day”. The defence says that this was a suspect response given that moments prior Walton indicated he could not say what date the phone conversation was from. This response, alongside his selective notebook entries, leaves no doubt that it took place the day before Eaton met with him and Loader in the police parking lot.
80It is apparent from Eaton’s first statement and from the firearms that she helped turn in, that she had disobeyed Hall and had potentially incurred his wrath. She also seemed to believe that Hall wanted to kill her. This fear or sense of foreboding appeared to have precipitated the turning over of the firearms.
81I do not find support for the suggestion that the police were insistent that protection would be granted only upon her giving information in relation to Mason. In order to achieve protection, there had to be some information of investigative value to be provided. Eaton was well aware that police believed Hall was responsible for Mason’s disappearance and murder.
82Overall, I prefer and accept the evidence of both Walton and Loader. I find that there were no threats and Walton’s comments fall under investigative techniques that did not impact on the reliability of the statements. Eaton’s evidence on this point is fabricated. Contrary to the defence assertions, this and other visits suggest that police were at Ms. Eaton’s residence to “build rapport”. While there may be some design to place pressure on Eaton because she was an uncooperative potential key witness, this does not render the subsequent statements taken months later at Eaton’s overture or initiation inadmissible.
83Another factor advanced by the defence is the notion of collusion. I reject the assertion that Jeremy Lusted (“Lusted”) provided information to Eaton about the Mason case or that there was collusion. Clearly, Lusted and Eaton did not have the relationship that facilitated any collusion and the timing of the various statements from both witnesses belies any reasonable finding of collusion. Further, on this point, I accept Lusted’s evidence whereas he denied any such discussions with Eaton.
84Eaton’s allegations of threats and coercion aimed at Mathews, Walton, and others, for example Loader’s “threats” during the course of her video statements, (which is clearly not the case) are self-serving. They are not only inconsistent with the credible and reliable evidence of Walton, Renton, Loader, and her own father, they simply cannot be reconciled with her actions pre-and-post statements in which she self-corroborates substantial portions of her statements by providing the police with hard incriminating evidence against Hall.
85Based on the officers’ evidence, which I prefer, I reject the assertion that there was a quid pro quo that Eaton would only receive this protection should she furnish police with information that implicated Hall in the killing of Mason. Eaton repeatedly stated during her testimony that she was coerced by police into making both August 26, 2010 statements, and that much of what she said was untrue. The question becomes whether this allegation impacts the admission of the second statement at the threshold level in terms of its procedural reliability. In my view, it does not.
86I agree with the Crown’s submission that she was lying about the circumstances surrounding the giving of her statements to police. These assertions were nothing more than transparent attempts to distance herself from the content of the statements. They were the mechanism by which she could avoid having to explain the contradictions and inconsistencies with her actions and her statements. In fact, she was so committed to perpetuating this lie, that when I asked her a simple and direct question: “Is this your signature and initials on the document ma’am”? Her response was: “It’s not my signature. No.” This clearly decimates her credibility on the issue.
87I also agree with the Crown that Eaton’s allegations of coercion and the trauma that followed amount to nothing more than attempts by her to distort the truth about her encounters with the police to further her agenda; and her agenda during this trial is to undermine her own previous statements by fabricating police corruption. This pattern of twisting something innocuous into threatening or deceitful behaviour towards her was on full display during her testimony. Select examples include: Testifying that Loader was “keeping her threatened” by suggesting that she should be proud of herself for doing the right thing. Eaton testified she took this as a threat against her children. In this regard, I prefer and accept the evidence of both Loader and Walton. Accusing the Crown of being threatening by offering to read portions of the transcript to her and accusing the Crown of “spinning it up”, implying some deceit on the part of the Crown by reading from the transcript, both assertions are nonsense. Accusing the Crown of fabricating her video statement because of a slight delay between the audio and video. Testifying that her father became part of the police conspiracy against her; that he chose the police brotherhood over his own daughter; that he used her home to threaten her to do what the police said; and that her father had the role of enforcer. Testifying that Loader was trying to keep her scared by a minor reference to Walton.
88In sum, Eaton’s feigned lack of memory of speaking to Loader does not diminish the significance of the defence being able to fully cross examine the witness. I accept that her alleged lack of memory relates specifically to speaking to Loader. She had no difficulty remembering Hall had never said or done any of the things she alleged during her interview. Moreover, she had no difficulty remembering the threats, coercion and attempts to script her statement by police.
89As previously stated, procedural reliability is less focused on the question of whether there is reason to believe the statement is true, but rather, whether the trier of fact will be in a position to rationally evaluate her evidence. Just like a motive to fabricate, Eaton’s claims of coercion, a quid pro quo, or her basis for providing information and the basis of her knowledge can be fully explored in cross examination.
90As I have found procedural reliability on a balance of probabilities, I do not have to go down the road to consider substantive reliability. In this regard, I adopt the sage principles advanced by my colleague Coroza J. in Punia.
91I am also persuaded that the probative value of the statement is substantially outweighed by any prejudicial effect. Thus, both necessity and threshold reliability have been established. Eaton’s statement can be entered for the truth of its contents.
92While I have admitted the statement into evidence for its substantive use, in accordance with the general principles of admissibility, matters or opinion raised by the witness beyond what she reasonably knew, saw or heard at the relevant time will not be considered in my ultimate assessment. In other words, matters beyond Eaton’s personal knowledge will not be considered.
Conclusion
93The Crown’s application is granted. Eaton’s second statement to the police of August 26, 2010 is admissible and is tendered for its substantive use at trial.
“Justice A.J. Goodman”
A.J. GOODMAN, J.
Released: April 14, 2020
COURT FILE NO.: CR 11-3244 DATE: 2020-04-14 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JEREMY HALL RULING ON CROWN APPLICATION TO ADMIT CAROL ANN EATON’S STATEMENT FOR SUBSTANTIVE USE - KGB APPLICATION A. J. GOODMAN, J.
Released: April 14, 2020
1Due to the COVID-19 pandemic and the temporary suspension of trials in the Superior Court, the parties consent to the release of these reasons in the absence of the accused.
2These factors have already been detailed at para. 49 of these Reasons.
3Although at times, the audio did not sync with the video, the parties did not dispute the contents of the discussions or its accuracy.