CITATION: R. v. Lenz, 2007 ONCA 91

DATE: 20070213

DOCKET: C45502

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – STEVEN LENZ (Appellant)

BEFORE: SHARPE, SIMMONS JJ.A. and PARDU J. (Ad hoc)

COUNSEL:

Clayton Conlan for the appellant

Joseph Perfetto for the respondent

HEARD & RELEASED ORALLY: February 2, 2007

On appeal from the conviction entered on March 20, 2006, and the sentence imposed on May 15, 2006, by Justice Julia A. Morneau of the Ontario Court of Justice.

E N D O R S E M E N T

[1] It is common ground that the conviction on the criminal harassment charge and the finding of guilt on the charge of harassing telephone calls can only be sustained if the trial judge’s ruling to admit the unsworn video statement is upheld.

[2] In our view, the trial judge erred by declining to consider the evidence that the declarant felt pressured to make the statement when assessing reliability for purposes of admissibility.

[3] The evidence that the declarant felt pressured to make the statement should have been considered together with the fact that the statement was not made under oath. In the circumstances of this case, we view the absence of an oath as important and not as a mere formality. Administration of the oath would have brought home to the declarant the importance of telling the truth and the serious consequences of not being truthful. In our view, evidence of the pressure felt by the defendant was compounded by the absence of an oath, and taken together, these facts created a situation that merited careful scrutiny from the trial judge when considering reliability.

[4] The external indicators of reliability referred to by the trial judge do not bear upon the crucial issue, namely, the declarant’s state of mind and, accordingly, are not sufficient to overcome the shortcomings we have identified as to reliability.

[5] In our view, given the overall circumstances in which this statement was made, there were insufficient guarantees of reliability to render this presumptively inadmissible evidence admissible for its truth.

[6] It follows that the conviction for criminal harassment and the finding of guilt for harassing telephone calls must both be set aside and acquittals on those counts are entered. The conviction and sentence for breach of probation remains.

"Robert Sharpe J.A."

"J. Simmons J.A."

"G. Pardu J. (Ad hoc)"