Citation: Vaughan (City) v. Mesihovic, 2012 ONCJ 313
ONTARIO COURT OF JUSTICE
BETWEEN:
THE CITY OF VAUGHAN
— AND —
ALIJA MESIHOVIC and FAHIMEH MOTAVALI
Before Justice of the Peace R. S. Shousterman
Voir Dire Heard May 2 and October 24, 2011
Voir Dire Reasons released January 26, 2012
C. Bendick ....................................................................................... Counsel for the City of Vaughan
D. Rubin ............................................................................................. Counsel for the Defendants
JUSTICE OF THE PEACE R. S. SHOUSTERMAN:
Introduction
[1] Alija Mesihovic and his estranged wife, Fahimeh Motavali, are the owners of a single family residence located at 54 Mabley Crescent in the City of Vaughan.
[2] They have been charged with 11 counts under the Fire Protection and Prevention Act.
The Voir Dire Decision of May 2, 2011
[3] On May 2, 2011, Andre Clafton, a fire inspector with the City of Vaughan commenced testifying.
[4] Inspector Clafton testified that on July 19, 2010, the fire department received a complaint from Haik Parseghian. Mr. Parseghian identified himself as a tenant at 54 Mabley Crescent.
[5] Inspector Clafton testified that 54 Mabley Crescent is a two storey brick home. He
testified that the home is a single family dwelling. He testified that the home is 1,570 square feet and that the first floor area is a little bit less than 146 metres.
[6] Inspector Clafton testified that at 8:30 pm on July 26, 2010, he and Police Constable Bryan Ball attended at 54 Mabley Crescent. He testified that he entered the residence and met with Robert Marquez.
[7] Inspector Clafton testified that he was in his work uniform. He described his work
uniform as having a flag and a tag that indicates he is with the City of Vaughan. Inspector Clafton testified he presented his Ontario Fire Marshall card.
[8] Inspector Clafton testified that he informed Mr. Marquez he was there responding to a complaint and to conduct a fire safety inspection. He asked Mr. Marquez if he could ask him some questions. Inspector Clafton testified he asked Mr. Marquez how long he had been living at 54 Mabley Crescent and Mr. Marquez responded one month. Inspector Clafton testified that he obtained a written statement from Mr. Marquez.
[9] A voir dire was held regarding whether the statement should or should not be admitted as Mr. Bendick, counsel for the City of Vaughan, advised the Court that the City was not intending to call Mr. Marquez as a witness but intended to rely upon his written statement. Mr. Rubin, on behalf of the defendants, objected to the statement being admitted into evidence. After hearing submissions from both counsel, and relying upon the words of Justice Watt in the 2007 edition of Watt’s Manual of Criminal Evidence, Thomson Carswell, 2007, I ruled as follows:
Decision
This is my decision regarding whether a written statement from Robert Marquez should be admitted into evidence.
There is no dispute that the statement is hearsay as the crown is attempting to adduce the statement for the truth of its content. No exception applies. Accordingly I am being asked to admit the statement on the basis of the principled approach.
Hearsay evidence that does not defeat the presumption of inadmissibility because the
evidence does not fall within a traditional exception to the hearsay rule may nonetheless be admitted under the principled approach by satisfying the principles of necessity and reliability, Watt at p. 340.
The criteria of necessity and reliability are established on a voir dire, which was
conducted.
Necessity implies that the reception of evidence untested by cross examination is
necessary, since otherwise the benefit of the evidence to the determination of the
litigation will be lost entirely. In other words, imperfection is better than nothing, Watt at page 341.
Here I have been told that the City made an attempt to locate the witnesses by
telephoning them. I am told that the City was not able to reach the witnesses by
telephone. I accept that is the case. But just because the City could not contact someone by telephone does not mean that their obligation was at an end and this court should
accept the witness’ statement as being necessary.
While there is no closed list of what constitutes necessity nonetheless the question is what is reasonable in terms of determining whether or not the witness is unavailable. I have not been told that the potential witness or witnesses are dead or in the hospital or in
respite care or beyond the jurisdiction of this court. I have not been told that the witness or witnesses are incompetent to testify or are unable to provide an account of relevant events. While I have been told that there is some suggestion that one of the potential
witnesses may have been threatened and/or may have some fear of the defendant,
nonetheless in my opinion that is not sufficient for establishing necessity.
Reliability is aimed to identify those cases where concerns arising from the inability to test the evidence are sufficiently overcome to justify reception of the evidence as an
exception to the general exclusionary rule. The caselaw is clear that the reliability
criteria may be met where it is shown:
i. That there is no concern about the truth of the statement because of the
circumstances in which the statement was made or
ii. That there is no real concern arising from presentation of the statement as hearsay because the circumstances permit testing of its truth and accuracy by means other than contemporaneous cross examination, Watt at page 341.
Here there is nothing that establishes reliability. The statement is/is not signed. I do not know who wrote the statement. It is unknown whether there was any motive to
misrepresent.
At this time I decline to admit the statement on the basis of the principled approach. I
require further evidence regarding attempts made to locate the witness and/or witnesses. If the witnesses cannot be located or are unable or unwilling to testify then this court is prepared to reconsider the matter. At this point the statement is not admitted.
The Continuation of the Voir Dire Hearing on October 24, 2011
[10] On October 24, 2011, the matter returned to court for a continuation of the trial. The voir dire continued on that date. I heard further testimony regarding the admissibility of written statements from Robert Marquez, Judy Spence, Tom Siafakas and Haik Parseghian, and an oral statement from Alex Haas. Mr. Parseghian testified in person and therefore this ruling does not pertain to the admissibility of his statement.
The Evidence of Deborah Callaghan
[11] Deborah Callaghan, the prosecutions coordinator with the City of Vaughan testified that on April 19, 2011 she was asked to contact four witnesses for trial on May 2, 2011. Ms.
Callaghan was provided with the witnesses’ statements containing their names and telephone numbers. She testified that on April 20 and 28 she attempted to contact the witnesses. Ms.
Callaghan testified that she succeeded in contacting Judy Spence who advised her that she was now living in Toronto and did not want to come to Richmond Hill to testify.
[12] Ms. Callaghan testified that on September 27, 2011 she was asked to prepare four
summonses to witness, which she did. Ms. Callaghan testified that the summons to witness for Judy Spence was not issued as she had left the address section blank and the presiding justice declined to issue the summons absent an address. On cross-examination Ms. Callaghan testified that she does not have the authority to search the Ministry of Transportation database to obtain driver’s licence information for individuals and therefore she did not search the Ministry’s database to obtain more up to date information for Ms. Spence.
[13] Ms. Callaghan testified that the other summonses were issued and that she gave them to the fire inspector for service.
[14] Ms. Callaghan testified that she believed only one summons had been served.
The Continuing Evidence of Inspector Clafton
[15] Inspector Clafton testified that he received the summons to witness from Ms. Callaghan for Haik Parseghian, Alex Haas, Robert Marquez and Tom Siafakas. His testimony was unclear as to whether he received an unissued summons for Judy Spence or simply contact information for her.
[16] Inspector Clafton testified that Haik Parseghian was served. As previously stated, Mr. Parseghian attended court on October 24, 2011 and testified.
[17] Inspector Clafton testified that he attended at 54 Mabley Crescent to serve Alex Haas. He testified that he knocked on the door and there was no response. Inspector Clafton testified that as he was about to leave a third party came by. He testified someone he thought to be Mr. Haas said “do not let him in” and he left.
[18] As a result he was unable to serve Mr. Haas.
[19] Inspector Clafton testified that the telephone number Robert Marquez had provided to him was no longer in service. He testified that he did not search any Government of Ontario
databases to obtain a current address for Mr. Marquez.
[20] As a result he was unable to serve Mr. Marquez.
[21] Inspector Clafton testified that he telephoned Tom Siafakas at the telephone number provided to him. He testified that this number was that of Mr. Siafakas’ parents. Inspector Clafton testified that Mr. Siafakas’ mother provided him with her son’s new cell phone number. He
testified that neither he nor Mr. Siafakas’ mother were able to contact Mr. Siafakas. Inspector Clafton testified that he spoke with Mr. Siafakas’ mother who advised him that her son had been moving quite a bit and had spent some time in the hospital.
[22] As a result he was unable to serve Mr. Siafakas.
[23] Inspector Clafton testified that he spoke with Judy Spence who advised that she did not want to personally appear in court although she was amenable to testifying by way of telephone. Inspector Clafton testified that Ms. Spence refused to provide him with a current address for service. He testified that he did not search any Government of Ontario databases to obtain a current address for Ms. Spence.
[24] As a result he was unable to serve Ms. Spence.
Position of the Parties
[25] Mr. Bendick seeks the admission of the statements from Judy Spence, Tom Siafakas and Robert Marquez. He submits that the statements should be admitted as they satisfy the criteria of necessity and reliability and therefore fall within the principled exception to the hearsay rule. Mr. Rubin submits that the statements should be excluded as they do not fall within the principled exception to the hearsay rule. As an aside I note that neither party dealt with the admissibility of Mr. Haas’ oral statement and therefore this decision does not deal with same.
[26] The statements were marked as Exhibit A to the voir dire. They are very short and therefore I reproduce them in their entirety save and except for personal information (such as
telephone numbers) which I have marked with an asterix:
Name: Tom Siafakas
Today’s Date: 26/06/2010
Date of Occurrence:
Location of Occurrence: 54 Mabley Cres.
Statement: I TomSiafakas reside at 54 Mabley Cres and pay $450.00 a month rent. I’ve been renting for 12 months. My parents phone number is ***
Signature
Name: Judy Spence Telephone Number ***
Today’s Date: July 26/10
Date of Occurrence:
Location of Occurrence:
Statement: 54 Mabley Cres, 2nd Floor
$450 monthly
Living here 4 years
Signature
Name: Robert Felix Marquez
Today’s Date: July 26 - 2010
Date of Occurrence:
Location of Occurrence:
Statement: Me Robert Marquez rent a room on July 1st, thinking I get laundry facilities, none; the laundry was broke, there was a lot of fuss for the use of the kitchen which I use no so often. He enter the room when I’m not inside. All this is happening at 54 Mabley –
Thornhill.
Phone ***
Paying $450.00 a month for rent
The Law
[27] I accept that the City of Vaughan can only use the legal methods at its disposal when
attempting to locate witnesses. As Ms. Callaghan testified, she cannot access the Ministry of Transportation’s database. Inspector Clafton testified that prior to taking the statements he was provided with identification and that with the exception of Mr. Siafakas who produced his health card everyone else produced their driver’s licence.
[28] I have read the caselaw provided to me. Since this matter was heard, the Court of Appeal released its decision in R v James, 2011 ONCA 839 in which the court considers the necessity and reliability components of the principled exception to the rule excluding hearsay evidence. To be admissible, both components must be met.
[29] In my opinion, the situation involving Tom Siafakas is very different from that involving Ms. Spence and Mr. Marquez.
[30] It is evident from Inspector Clafton’s testimony that Ms. Spence was unwilling to testify in person and unwilling to provide an up to date address so that a summons could issue and be served. That is not sufficient to lead me to conclude that she was unavailable for trial.
[31] The defence submits that Ms. Spence indicated a desire to testify by telephone and she could have been accommodated. I disagree. Section 83.1(2) of the Provincial Offences Act
provides that in any proceeding under the Act if the appropriate equipment is available at the courthouse where the proceeding occurs a witness may give evidence by electronic method. Electronic method is defined as one of video conference, audio conference, telephone conference or other method determined by the regulations. However, s. 83.1(4) limits the use of telephone and audio conferences to matters outside of the trial proper. The Richmond Hill Court does not yet have the technology to conduct a trial by video conference. As such, testifying by telephone was not possible.
[32] Mr. Bendick submits that the efforts of the City of Vaughan were not perfect but they were reasonable efforts. I disagree. No steps were taken by the City in advance of the first trial date of February 10, 2011. Ms. Callaghan was asked to contact the witnesses on April 19, 2011 for the May 2, 2011 trial date. She testified that she made attempts to do so on April 20 and 28, 2011 and was only able to contact Ms. Spence. Ms. Callaghan testified that on September 27, 2011 she was asked to prepare four summonses, which she did. Only one summons was served.
[33] The caselaw is clear. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court: R v Orpin 2002 CarswellOnt 1327 (C.A.) at para. 45 – 51; R v O’Connor 2002 CarswellOnt 3955 (C.A.) at para. 57.
[34] I therefore find that Judy Spence’s statement does not meet the necessity requirement for the admission of hearsay statements.
[35] I also find that Robert Marquez’s statement does not meet the necessity requirement for the admission of hearsay statements. I base this conclusion on the fact that no attempt was made by the City to locate Mr. Marquez once it was discovered that his telephone was no longer in service.
[36] The facts surrounding the attempt to locate Tom Siafakas are different than those
surrounding Ms. Spence and Mr. Marquez. Inspector Clafton contacted Mr. Siafakas’ mother. He spoke with her. The mother provided Inspector Clafton with an updated contact number for her son. The Inspector and the mother each attempted to contact Tom Siafakas without success. Inspector Clafton followed up with Mr. Siafakas’ mother. The mother told the Inspector that her son had been moving around quite a bit and that he had been hospitalized.
[37] This is a very different situation than the attempts to contact Ms. Spence and Mr. Marquez. Options were pursued. The family was involved. Mr. Siafakas was unable to be
located. Based on the evidence of Inspector Clafton, I find that Mr. Siafakas was not available to testify and therefore his statement meets the necessity requirement.
[38] I now turn to the reliability argument.
[39] In considering the issue of reliability in the context of the principled approach, I must have regard to the fact that the defendants will not be able to cross examine Ms. Spence, Mr. Marquez and Mr. Siafakas.
[40] The statements were provided to a person in authority. Inspector Clafton was wearing his uniform, he presented his business card and he identified himself. He asked if he could take a statement. Inspector Clafton testified that the notes he took and the statements he took were done contemporaneously with his inspection.
[41] The statements are signed.
[42] There is nothing in the evidence to suggest that any of the witnesses had any reason or motive to mislead Inspector Clafton. Their statements are to the point: where they live, how long they have been living there and the amount of rent they pay. It is inconceivable that the three witnesses would concoct a story about how long they had resided at 54 Mabley Crescent and the amount of money they were paying in rent.
[43] Further, Mr. Parseghian who also provided a written statement testified. He testified that on July 26, 2010, he was residing in one of two rooms in the basement of 54 Mabley Crescent in what he described as the “far away room”. He testified that the room was small. He testified that the room did not have a kitchen or a bathroom and that people shared an upstairs kitchen. Mr. Parseghian testified that he paid $450.00 rent each month to the defendant, Mr. Mesihovic, whom he identified in court and who was known to him as Mr. Allen. When he was shown his written statement, Mr. Parseghian admitted that he had erred and his rent was $400.00 per month and not $450.00.
[44] Mr. Parseghian testified that eight other people lived in the residence and on the
weekend, 10 people lived there. He testified that people lived on each floor of the residence
including the basement. Mr. Parseghian testified that everyone had a separate room.
[45] Mr. Parseghian testified that he provided a statement to Inspector Clafton. The statement, in brief, indicates he called the fire marshal because there were no smoke detectors in the rooms, the windows were very small and there was only one stair exit which goes to the second floor. In his written statement Mr. Parseghian admitted that he had issues with Mr. Mesihovic’s behaviour including entering his room.
[46] The defence submits that the statements are not corroborative each of the other. I
disagree. The statements made by Ms. Spence, Mr. Marquez and Mr. Siafakas were
corroborated by the evidence of Mr. Parseghian. The statements are extremely limited in
content. All of the statements indicate that the witnesses paid rent. All of the statements indicate that the witnesses resided at 54 Mabley Crescent.
[47] Ms. Spence indicated she was willing to give evidence by way of telephone. Having
previously found that this was neither possible nor permitted under the legislation, nonetheless she was willing to appear albeit not in person and to allow herself to be cross-examined. As such, there is some indicia of reliability.
[48] The defence submits that while there may be a bare minimum of reliability there is not sufficient reliability to suggest that the witnesses need not be cross-examined. He submits that there is no indication in the statements of any relationship between the makers of the statements and the defendants.
[49] I disagree. The statements are simple: Ms. Spence, Mr. Marquez and Mr. Siafakas rented rooms at 54 Mabley Crescent. They each paid rent of $450.00 per month. Section 9.3.1 of the Ontario Fire Code defines a rooming house. The prosecution only has to prove that at least four people pay; it does not require an inquiry as to the relationship between the defendants and the tenants.
Conclusion
[50] I find that the City of Vaughan has satisfied me, on a balance of probabilities, that the criteria of reliability has been satisfied. The statements of Ms. Spence, Mr. Marquez and Mr. Siafakas meet the criteria of reliability; of course, to be admitted the statements must also be necessary. Mr. Parseghian’s statement was previously admitted as Exhibit 6.
[51] As previously stated, I find that the City of Vaughan has satisfied me, on a balance of probabilities, that the criteria of necessity has been satisfied for the admission of Mr. Siafakas’s statement.
[52] Finally, as previously stated, I find that the City of Vaughan has not satisfied me, on a balance of probabilities, that the criteria of necessity has been satisfied for the admission of Ms. Spence and Mr. Marquez’s statements.
[53] In coming to this conclusion on the issue of necessity, I am aware that requiring people to attend court and testify only lengthens the trial. That being said, on the facts of this case, I find the efforts made by the City of Vaughan to locate and summons Ms. Spence and Mr. Marquez to be inadequate. This court has not been provided with any satisfactory reasons as to why neither witness was served with a summons to witness.
[54] Accordingly, and in conclusion, the statement of Mr. Siafakas will be admitted in evidence. The statements of Ms. Spence and Mr. Marquez will be excluded.
January 26, 2012 R. S. Shousterman, JP