DATE: 20050607

DOCKET: C38895

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WALDO CANIZALES (Appellant)

BEFORE:

ARMSTRONG, LANG and ROULEAU JJ.A.

COUNSEL:

Howard Borenstein

for the appellant

Shelley Hallett

for the respondent

HEARD:

June 1, 2005

On appeal from the conviction imposed by Justice P. B. Hockin of the Superior Court of Justice, sitting with a jury, on May 3, 2002.

E N D O R S E M E N T

[1] After a trial by judge and jury, the appellant was convicted of discharging a firearm with intent contrary to s. 244 of the Criminal Code. He appeals his conviction on two grounds:

(i) the trial judge erred in admitting the police videotape evidence of the witness, Cara Thiel; and

(ii) the trial judge erred in failing to grant a mistrial when Cara Thiel absconded and failed to appear for cross-examination.

[2] A third ground of appeal, related to the judge’s charge to the jury concerning the evidence of the witness, Paul Meunier, was abandoned during the course of the oral argument.

[3] Ms. Thiel was the appellant’s girlfriend. One week before the commencement of the trial, Ms. Thiel approached the police and provided a videotaped statement in which she said, inter alia, that the appellant had admitted to her that he had shot one Nigel Bennett, the victim in this case.

[4] Ms. Thiel was called as a witness and recanted her statement to the police. During the voir dire that followed, counsel for the defence cross-examined Ms. Thiel during which she stuck to her position that her statement to the police was not truthful. She explained that she had fabricated the statement as a result of threats and a belief that by making the statement, she would avoid prison and losing her children. The Crown was granted permission to cross-examine Ms. Thiel on her prior statement pursuant to s. 9(2) of the Canada Evidence Act.

[5] At the conclusion of the voir dire, Ms. Thiel did not return to court and counsel for the Crown sought a ruling that Ms. Thiel’s video statement be presented to the jury. The trial judge considered the issues of necessity and threshold reliability in respect of the statement as directed by R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. He concluded that by virtue of Ms. Thiel’s disappearance that necessity was established and that finding is not contested. He further concluded that threshold reliability was established and admitted the statement.

[6] In this court, counsel for the appellant submitted that the trial judge erred in his finding in respect of threshold reliability. The appellant argued that:

(i) the trial judge did not take into account that Ms. Thiel had a motive to fabricate her statement as she had requested the police to arrange for outstanding charges against her to be withdrawn in return for her statement; and

(ii) the trial judge erred in concluding that the reading in of the cross-examination conducted by the defence counsel during the s. 9(2) voir dire was an adequate substitute for the inability to cross-examine Ms. Thiel in the presence of the jury.

[7] The approach to appellate review of a trial judge’s ruling on the admissibility of this kind of evidence was articulated by Doherty J.A. in R. v. Merz (1991), 140 C.C.C. (3d) 259 (Ont. C.A.) at para. 49:

In reviewing a trial judge’s decision to admit evidence under the principled exception to the hearsay rule, this court, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge.

[8] We are satisfied that the trial judge conducted a careful review of the evidence relevant to the issue of threshold reliability and correctly applied the appropriate legal criteria. In his review of the relevant circumstances surrounding the taking of the video statement, he made explicit reference to the evidence concerning Ms. Thiel’s desire to have outstanding charges against her withdrawn.

[9] In the circumstances, the trial judge was entitled to find that the ability to put before the jury the transcript of the s. 9(2) cross-examination of Ms. Thiel adequately compensated for the inability of the appellant to cross-examine the witness on her prior statement in the presence of the jury. The s. 9(2) cross-examination had adequately canvassed the issue of reliability so as to enable the jury to appropriately weigh the testimony. In this regard, the Supreme Court of Canada said in Hawkins and Morin v. The Queen (1996), 111 C.C.C. (3d) 129 (S.C.C.) at para. 79:

For these reasons, we find that a witness’s recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contem-poraneous cross-examination, more than adequately compensate for the trier of fact’s inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.

We think that the circumstances of the case at bar are similar to the circumstances that existed in Hawkins.

[10] We therefore conclude that the videotaped statement of Ms. Thiel was properly admitted.

[11] Counsel agreed that if we concluded that the statement of Ms. Thiel was properly admitted that it would be unnecessary to consider the ground of appeal related to the mistrial.

[12] In the result, the appeal is dismissed.

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”

“Paul Rouleau J.A.”