Court File and Parties
Court File No.: Newmarket Courthouse 10-03225 Date: 2012-05-29 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Houman Khatambakhsh
Before: Justice Peter N. Bourque
Reasons for Judgment released on: May 29, 2012
Counsel:
- I. Abokor, for the Crown
- S. Feldman, for the accused Houman Khatambakhsh
Judgment
Bourque J.:
Introduction
[1] The witness Tarrynn Flynn attended a York Regional Police Station on the morning of April 2, 2010. The photos taken of her that morning, and the subsequent photos taken the next day, show a person who has suffered extensive lacerations and bruises to her face, arms, back and legs. In two separate video statements, given to the police on April 2 and April 3, 2010, the witness tells of an overnight litany of assaults and confinement by the defendant upon her. In her viva voce evidence given in court over several days she gives explanations for the many injuries that she suffered, which do not involve any culpability of the defendant, in direct contradiction of the statements that he gave to the police.
[2] The defendant is facing the following charges from the events of April 1 and April 2, 2010:
April 1, 2010 – Confinement of Tarrynn Flynn, contrary to s. 279(2) of the Criminal Code;
April 2, 2010 – Confinement of Tarrynn Flynn, contrary to s. 279(2) of the Criminal Code;
April 2, 2010 – Assault cause bodily harm on Tarrynn Flynn, contrary to s. 267(b) of the Criminal Code;
April 1, 2010 – Assault on Tarrynn Flynn, contrary to s. 266 of the Criminal Code;
April 2, 2010 – Mischief to property under $5000, contrary to s. 430(4) of the Criminal Code;
Between April 1 and April 2, 2010 – Breach of a court order under s. 127(1) of the Criminal Code;
April 1, 2010 – Confinement of Tarrynn Flynn, contrary to s. 279(2) of the Criminal Code; and
April 2, 2010 – Obstruct York Regional Police officer in the execution of his duty, contrary to s. 129(1) of the Criminal Code.
[3] In the course of her statement to the police on April 3, 2010 she made reference to being slapped by the defendant two times with the back of his hand. She states that her son was present in the room. She states that this incident happened in the middle of February 2010. From February 14, 2010, he is charged with:
- Between February 14, 2010 and February 28, 2010 – Assault on Tarrynn Flynn, contrary to s. 266 of the Criminal Code.
Previous Court Rulings
[4] The principal evidence of all of these matters (except the obstruct justice charge), which I will deal with separately, was given by the evidence of Tarrynn Flynn. With the exception of a description of the assault of February 2010, the witness, in her viva voce evidence, denied that the defendant committed any of the offences of April 1 and April 2, 2010.
[5] In my ruling of February 9, 2012, I allowed the Crown to cross-examine the witness, Tarrynn Flynn, on two videotaped statements given to the police on April 2, 2010 and April 3, 2010. In my ruling of May 11, 2012, the two statements given to the police by the witness were admitted into evidence under the principled exception to the hearsay rule. Both of those judgments are attached to this judgment as Appendix "A" Ruling on s. 9(2) and Appendix "B" Ruling on Application and I rely upon the analysis of the evidence made therein in this judgment. The test for the cross-examination and the admission of the statements in evidence are different from the analysis I must make at the end of the trial, but the evidence and the inferences to be drawn from the evidence are the same.
Burden of Proof
[6] The burden is upon the Crown at all times to prove the essential elements of the offences beyond a reasonable doubt. As stated in R. v. Lifchus:
"The burden of proof beyond a reasonable doubt is inextricably intertwined with the principle fundamental to all criminal trials, the presumption of innocence:
Reasonable doubt is not a doubt based upon sympathy prejudice;
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it any imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty – a (Judge) jury which concludes only that the accused is probably guilty must acquit."
[7] The evidence of the complainant in the witness box would, if believed, afford the defendant a defence to the charges from the incidents of April 1 and April 2, 2010. As per R. v. W.D.:
First, if you believe the evidence (of the accused) obviously you must acquit.
Secondly, if you do not believe the testimony (of the accused) but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence (of the accused) you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
Assessing Credibility of Complainant
[8] Aside from the difficulty with the changes in her testimony from the statement to the courtroom testimony, there are some other difficulties which must be addressed. She was previously charged with assaulting the defendant and eventually entered into a peace bond. She is an admitted user of drugs. This was her constant refrain in her evidence in court. She said that her allegations against the defendant were part of a drug induced condition. However, in the second statement given to the police she does not suffer from any drug or tiredness issues. She is coherent and uses that to fill in details.
[9] When providing reasons to the Crown for the many bruises, cuts and abrasions on her body, the witness described many sources, most of which involved her falling down herself in some fashion. Between the examination on March 29, 2011 and the continuing examination on November 1, 2011, she came up with a different explanation, namely, that earlier that evening (she was not specific) she had attempted to avoid a drug debt and she had been beaten up. She refused to give the name of the drug dealer or give any details. In her testimony on April 2 and April 3, 2012 (the cross-examination on the video statements to the police) she spoke of hitting her head on an electrical box.
[10] She gave a very far-fetched explanation as to why 911 was called by saying that it was how she had set up her blackberry phone and that it must have automatically dialled when she dropped the phone. However, later in her examination she did state that she had called 911. In the 911 transcript she admits to saying: "please come" and "I'm not trying to leave you". She gave no explanation as to why she wanted someone to come, and her statement: "I'm not trying to leave you" contradicts her assertion that it was the defendant who was trying to get her to leave. This 911 tape in its entirety (the contents admitted by the witness) indicates that this woman is in a state of fear. She gives the address of the defendant. This is clearly some further corroboration of the statements that she gave to the police. Her explanation in the witness box was far-fetched in the extreme. Her statement that she was out of control (March 29, 2011 page 26) and wanted to go and beat someone else up is totally beyond belief, especially since she was in a "drugged state, was angry at the police and was angry at the defendant who had gotten her into trouble in the past". This makes no real sense as she was clearly suffering from several injuries and was clearly bleeding, to a significant degree, from a cut to her head. It makes more sense to conclude that she was trying to report a crime which had happened to her. She was tired and confused to be sure, but more the result of the beating than from any effects of any stimulants (or depressants).
[11] In the normal course of events, where a witness gives two un-reconcilable statements, it becomes impossible to accept that the witness is at all credible, and thus the trier of fact is left with a reasonable doubt. In a previous decision of mine in R. v. Bellisario [2009] O.J. No. 5414, I stated: "how could I possibly accept her evidence on its own without having a reasonable doubt? I cannot, unless there is sufficient corroborating evidence of the crimes which are alleged."
[12] Where this case differs, in my opinion, is the photographic evidence of the defendant, as confirmed by those who saw her after the events. Her explanation in court about the cause of so much damage can only be described as incredible. No amount of falling down stairs, going over a fence, or scraping arms with keys, can adequately explain her injuries. Many of them she could not explain in her evidence in court.
[13] The 911 call (admitted by the witness) is also some corroboration of the events described in her statements to the police. She gives the defendant's address in the telephone call; she asks for help and has all the hallmarks of a person under distress.
[14] I have already spoken of how her explanations changed with each different attendance in court.
[15] I also contrast the demeanour of the witness. As I have already stated, I can only characterize her performance in court as not in any way supportive of a truthful statement of the events. I think I should go further on the issue of demeanour. For most of her viva voce testimony and especially her testimony on April 3, 2012, her actions in the witness box can only be described as that of an angry child. She would rock back and forth in her chair, and would look away (at the ceiling or the floor) when the Crown played portions of the video. She would gasp and moan when the Crown asked her questions. In contrast, the witness' comportment on the video is that of an adult. She responds and while she was tired, she simply provided her story as best she could. It would be obvious to any trier of fact that in the witness box she was attempting, at all times, to continuously fabricate and come up with any explanation which would not be against the defendant's interests.
[16] The pictures show that without some other medically supported explanation, that this woman has been severely beaten.
[17] The mother of the complainant testified. It was her testimony that her daughter and the defendant resumed cohabitation between the end of July 2010 and October 2010. This evidence was proffered by the Crown as some explanation for the change in evidence by the complainant. There is some difficulty with the theory in that the complainant attended at the courthouse on July 9, 2010 and swore an affidavit, which essentially disavowed her previous statements to the police. This was before any resumption of cohabitation. It may be that they were in contact before the cohabitation, but I have no evidence of that and I do not wish to engage in speculation. I give little weight to this evidence. It does not really assist me in the essential issue, which I find I have determined based on the other factors that I have set out above.
[18] I have not accepted her recitation given in court of the events of April 1 and 2, 2010. For the same reason her explanations do not even leave me with a reasonable doubt.
[19] I must now go further and assess the remaining evidence (including the two statements of the complainant to the police on April 2 and April 3, 2010) and decide whether, upon that evidence, I am convinced beyond reasonable doubt of the guilt of the defendant.
[20] The defendant has raised several issues and some contradictions in her statements to the police. I will try to deal with all of them below.
[21] I have already reviewed the issue of the tiredness of the complainant and her overall physical state. She was tired (on April 2, 2010); she had taken some drugs earlier in the evening and had taken an Adavan pill at the hospital. She was showing the obvious signs of physical injury. Does this collectively lead me to have a reasonable doubt about her statement of April 2, 2010? For the following reasons it does not:
The statement of April 3, 2010 confirms and adds some detail in her statement of April 2, 2010.
The defence points out some lack of detail in her statements, such as (page 59 lines 1-5), but I do not find this surprising as she must have received many different blows to have the injuries as noted in the photos. In any event, she restates several times being struck with his hands and having her head pushed into a pipe of some sort.
Notwithstanding her statement on April 3, 2010, that she does not really remember what she said on April 2, 2010, it is clear from the totality of the interview that she does.
This analysis would be different if there were some real differences between the April 2 and April 3 statements. There are not. Even in her new state of clear headedness and having had sleep, she does not make any changes, other than detail, to what she said the previous day.
Was she continuing her statement on April 3, 2010 for some corrupt reason? Did she feel trapped by her original statement or fearful of a charge of breach of her recognizance? In her affidavit she states she was somehow "entrapped", although I am not sure this refers to the April 3 statement. She also does not mention that she felt threatened in the April 3, 2010 statement. I think I can discount that she lied on April 3, 2010 for some corrupt reason.
The defence points to the affidavit of July 9, 2010, to say that she does indeed contradict her statement of April 2, 2010. I accept it as a partial contradiction, but it certainly does not provide any of the explanations given in the witness box. It simply restates her condition at the time and states: "I will not testify to support these claims". I do not have to speculate as to why she changed her views from April to July and note that it is not an uncommon occurrence for complainants to indeed retract their original statement to the police implicating their partner, in a domestic relationship, with a crime against them. She clearly resumed her relationship with the defendant shortly after this note was written.
[22] The defence points out that there is evidence missing such as pictures of the crime scene. There were none made. That would help to reinforce the Crown's case, but I do not accept that failure to do these things precludes me from making the findings essential to the Crown's case. The father who was home at the time of the events was not called as a witness. Again, I do not think that the Crown's case is fatally compromised. The Crown is free to call the witnesses it wishes to prove its case. The fact that they do not call a family member of the defendant is not, in and of itself, noteworthy.
[23] The defence points out that in the April 3, 2010 statement, she talks about being bitten on the nose. The pictures from the next day show red marks but not teeth marks per se. I even noted that on the record. The defence suggests that this is an obvious untruth which would taint everything else she has told the police. With respect, I do not agree. These marks may have had something to do with being bitten on the nose or they may not. It was her assumption, when it was pointed out by the officer, that she had marks on her nose that they were left there by his biting her. She could have been mistaken about this. I do not think that the possibility these marks are not from a bite severely impacts on her overall credibility in her statements to the police. Being mindful of all of those issues, I find that the combined statements of the witness to the police bear the earmarks of credibility and I am prepared to accept them, along with the other corroborating evidence, as proof of the events.
Other Defence Issues
[24] With regard to the peace bond the defendant argues that the phrase, "to keep the peace and be of good behaviour generally and specifically towards (a named person not the complainant)" does not impose a requirement that the defendant keep the peace generally, but only towards the named individual. Such a reading makes no sense. The word specifically only refers to the named person in the bond.
[25] The defendant finally states that there is no evidence of confinement. I disagree. She stated that she was not free to leave the house and talks about (page 40 – lines 12-17) "begging for him to let me go and my face was bleeding, there was blood all over the floor, I was crying-sobbing hysterically…" This is specific evidence of confinement, especially when coupled with all of the other evidence.
Conclusion
[26] I therefore find that the version of events as set out in the statements of the witness Tarrynn Flynn to the police, on April 2, 2010 and April 3, 2010, are proven beyond a reasonable doubt.
[27] The complainant went to the defendant's house for various reasons, perhaps as she says just to pick up her things. They obviously engaged in a very long series of arguments. They went out for a period of time and returned. They were in the company of other friends for a time. Their arguments escalated to the point that he struck her several times with his hands and pushed her head into a hard object. She left the house on one occasion but he returned her to the house. She called 911. The police came but she was compelled to stay hidden in the basement. She suffered cuts and bruises to her head, her arms, her back and her legs. With the exception of the scratch marks to her inner arms, the injuries as revealed in the photographic Exhibits were caused by him.
[28] I find the defendant guilty of the following:
- Count # 2 - Confinement on or about April 2, 2010
- Count # 3 – Assault cause bodily harm on or about April 2, 2010
- Count # 4 - Assault between April 1 and April 2, 2010
- Count # 5 – Mischief to property on or about April 2, 2010
[29] It follows that I also find him guilty of the following offences:
- Count # 6 – Breach of Peace Bond order of May 26, 2009
- Count # 10 – Assault on between February 14 and February 28, 2010.
[30] I note that with regard to this final count, the witness accepted in chief that this was the one portion of her statements to the police that was true.
Obstruct Justice
Overview
[31] The defendant is charged with obstruct justice, about the statements that he purportedly made to the police officers who came to the door at just after 7:00 a.m. on Saturday April 2, 2010.
Evidence
[32] The transcript of a 911 call was accepted into evidence. In the call the female voice says…"I wasn't trying to leave you".
[33] As a result Officer Bosomworth and Officer Mason were dispatched to the house of the defendant.
[34] The father of the defendant answered the door. Officer Bosomworth said that they were at the door for about 20 minutes. The officers did not go into the house. The officer stated that the defendant came to the door very shortly after the father answered the door. In the officer's notes all of the recitations of the conversations at the door make reference to "they" and does not explicitly ascribe any words to the defendant or refer to him solely saying anything.
[35] The officer testified that he made his notes right after leaving and did them in the police cruiser with the other officer and they discussed and consulted about certain things they had seen and done as they did their notes.
[36] In his examination in chief, the officer was asked by the Crown to recite only what the defendant said to him. He gave evidence that the defendant said certain things. In cross-examination, it was revealed that the officer in his notes always referred to "they" for all of the dialogue. At the end of his evidence, he was adamant that both of them said the various things he referred to, but admitted that he made no note of the separate things.
[37] It was the officer's evidence that "they said that one Tarrynn Flynn used to be in an intimate relationship with the defendant. "They" both said that Tarrynn Flynn had damaged the house and was not welcome there. They both said that the said Tarrynn Flynn was not there at the house.
[38] He discussed the matter with his fellow officer and they did not feel they had reasonable and probable grounds to enter the home and therefore did not do so. They left the scene.
[39] Officer Mason states that they arrived at the house in separate cruisers. The officer stated that they went to the door and the defendant's brother answered the door either with the father, or the father came to the door, right away.
[40] He states that in some fashion (he does not completely understand how) they went down to a side door and met the defendant near a gate. He stated that there was an extended conversation and the defendant did not want the officers to come into the house because his dog was having puppies. He also related the past history of the defendant and Tarrynn Flynn and said he had her charged with an offence. He also stated he had not seen her for a week or two. The officer had no quotations in his notes about the details of the conversation.
[41] With regard to making his notes, he states that it was not his recollection that he made his notes in the presence of the other officer.
Analysis
[42] There were several significant discrepancies in the events as related by each officer. Mason said that the father and the brother of the defendant were at the front door. Officer Bosomworth said that it was the defendant and his father. The Officer Bosomworth makes no mention at all of going down to another door, and speaking with the defendant alone, and makes no mention of the excuse given by the defendant as to why did not want him to attend.
[43] Neither of the officers made notes of the actual words of the defendant and Officer Bosomworth makes reference to "they" in his notes.
[44] It is clear that both of the officers agree that in some way they were informed that Tarrynn Flynn was not on the premises. The issue that I must satisfy is whether I am convinced beyond a reasonable doubt that this information came from the defendant.
[45] Based on the evidence of the complainant and verified on the 911 call, she spoke to the call centre, gave them her location as 4 Guildwood and stated "please come over here" and "I wasn't trying to leave you".
[46] There is also her evidence, the evidence of the police officers that she arrived at the police station at a time well after the arrival of the police at the house, her evidence that she heard the police come and she was behind the hot water heater. I accept that she was in the house when the police arrived and they were speaking to person at the door.
[47] It certainly stands to reason that the police would inquire as to whether she was there. I am sure they did. They were told in some fashion that she was not there. The issue is, based on the totality of the police evidence, am I convinced beyond a reasonable doubt that the defendant uttered such words and thereby obstructed the police in their investigation. But for the obvious and, to my mind, inexplicable and confounding contradictions in the police officers' testimony, I would be so convinced. Unfortunately, their two versions of the events at the house cannot be reconciled. To make a finding of guilt I would have to discount one officer's version in preference to the other. I find I cannot do so, and because of the indistinct references by Officer Bosomworth, as to the source of his information, and as the description of who was actually there are different, I find that I am left with a reasonable doubt as to whether it was the defendant who told the officers that Tarrynn Flynn was not on the premises.
[48] I am therefore compelled to acquit the defendant on count # 11 - Obstruct justice on April 2, 2010.
Appendix "A" – Ruling on s. 9(2) Application
Court File No.: Newmarket Courthouse 10-03225 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Houman Khatambakhsh
Before: Justice Peter N. Bourque
Written ruling on s. 9(2) Application released on: February 9, 2012
Counsel:
- I. Abokor, for the Crown
- S. Feldman, for the accused Houman Khatambakhsh
Bourque J.:
[1] The defendant is charged with several offences arising out of his interactions with the complainant on April 1, 2010 and April 2, 2010.
[2] The defendant is charged with 8 counts including assault upon the complainant, assault cause bodily harm and several counts of forcible confinement.
[3] The complainant made two video statements to the police and the Crown seeks to cross-examine her on these statements.
Crown Evidence
Tarrynn Flynn
[4] The witness was the girlfriend of the defendant between November 2009 and April 2010. For some time they were residing together in a basement apartment, inside the defendant's parents home.
[5] The witness stated that she was charged before these events with several charges relating to allegations that she had assaulted the defendant. The terms of her release were such that she was ordered to stay away from him and his home.
[6] On the evening of April 1, 2010 she drove to his home and parked a distance away because she knew she was not supposed to see him. She went to his home where she says she wanted to find another woman and "beat her up". The witness states that she was under the influence of drugs and alcohol, including cocaine, when she attended at the home and she consumed more drugs and alcohol during the evening and after the evening. She stated that at some point, at the defendant's home, she cut herself with her keys in some sort of self mutilation.
[7] She states that she went with the defendant to another man's house. While there she wanted to confront a woman who worked in a nearby restaurant and she left the home after she had sent the defendant on an errand so that he would not know what she was doing.
[8] The defendant came after her in his car and with another of his friends put her into his car. They went back to the friend's house and eventually went back to the home of the defendant. The witness describes that they were arguing and on one occasion he "held" her as she was trying to go to drive her car and that he thought she was to much under the influence of drugs and alcohol to drive.
[9] She did not say that he was confining her. She stated many times, in response to the Crown's questions, that she could not remember things as she was in a "drugged" state.
[10] The Crown took the witness through a series of photographs taken of her by the police at the police station on April 2, 2010. They show in part a face with a serious cut above the left eye with dried blood on her face. It shows extensive bruising on her cheeks, her chin and her neck. It also shows cuts to her arms and abrasions on her arms and knees.
[11] The witness stated that she had taken various quantities of cocaine, marijuana, alcohol and other drugs before, during, and after the events she describes. She states that she was on her way to the hospital when she stopped off at the police station, which was on the way.
[12] The witness admitted that the pictures accurately showed her on that date. When she was asked to explain how the various injuries had happened she stated for some, she had fallen down the stairs at the defendant's home, while in a drunken and drugged state. She also stated that she had gotten a cut while "going over a fence" and for many of the marks and bruises she had no explanation at all. Some of the marks on her arms, she described as being from self mutilation with her keys earlier in the evening. In her second day of examination in chief, she was shown the pictures of her taken by the police and she added that she had gotten into a fight previously with a drug dealer, and that was where most of the injuries had come from. She refused to give the name of this person and she did not provide any details of the place and time of this event. Further on she stated that she was "prostituting" herself to this drug dealer.
[13] She was adamant that none of the injuries shown in the pictures were from the defendant's actions.
[14] She was also shown pictures of her face which were taken by the police the next day. Those pictures show extensive and deep bruises on her face. She stated that those bruises were from marks she had described from the previous pictures.
[15] Throughout her testimony, she stated many times that she was a drug addict and that she was out of control on that evening. She put the entire blame for all of these things upon herself.
Doctor David Rauchwerger
[16] Doctor David Rauchwerger was the attending physician at the hospital where the witness was taken by the police. The doctor did not have any recollection of the attendance at the hospital and all of his responses to questions were from his reading of the emergency treatment notes and from viewing the photos taken by the police.
[17] His evidence indicated that the witness had suffered a head trauma and was advised to have a CAT scan. She refused the treatment and the doctor was of the view that she was in a position to understand and make that decision. He stated that she was prescribed Adavan, a drug which, if given in the prescribed dose, has a calming effect and it would wear off in four hours. He does not know from the notes why it was prescribed or when during her stay at the hospital.
[18] She was offered the services of the York Region Domestic Assault Service but she declined it as well. He viewed one photo of her and the injuries on the right side of her face. He stated it was a possibility that she could have received it in a fall down the stairs. He also stated that the mark on her neck could not have come from a "hickie" and the mark on her right cheek could not have come from a skin condition.
Amandea Marcuzzi
[19] Amandea Marcuzzi is a nurse in the emergency department of the hospital. She performed triage and met with the witness for 60 to 90 seconds. She performed the GCS and rated her as a fifteen which means that there were no neurological symptoms present. She noted that the witness denied having any alcohol or drugs. Nurse Marcuzzi did not notice any symptoms of drug or alcohol use. With regard to her vital signs she stated only her heart rate was elevated (113 with an average usually between 60 and 100), but she attributed that to the stress of being in a hospital emergency ward. Her notes indicate that she "went into police station in police custody". The witness did not actually think she meant that the witness was in the custody of police, but she did not have a specific recollection of the patient outside of her notes.
Andrea Inrig
[20] Andrea Inrig is a friend of the witness Ms. Flynn and was contacted by the police in the early morning hours. She went to the hospital and was speaking with the witness Ms. Flynn outside the hospital. Andrea stated that she could not stay until the police had finished questioning Ms. Flynn so she left.
[21] She stated that Ms. Flynn did not show signs of any alcohol or drug use. The defence pointed out that this information was not given to the police upon her first interview, but she countered that by saying she was not specifically asked to comment upon her impression of Ms. Flynn's condition. (It should be noted that Ms. Flynn's condition was probably not an issue until after March 29, 2011, when she testified in court, denying that the defendant was the source of her injuries.)
Rohan Dinwall
[22] The witness is a York Regional Police Officer and was assigned to the desk at the police station. He states that at 10:00 a.m. the witness Ms. Flynn came into the station. He describes her face as bloody and bruised and she seemed to be very nervous. The officer took her into the "family room" nearby. He spoke to her and he stated that eventually she told him that she had been beaten by her boyfriend. He went on to state that she gave him the defendant's name as her boyfriend although the name was not noted in his notes at the time. He also stated that she described being pushed and struck, although this was not in his notes either.
[23] He identified her from her pictures filed as Exhibits and stated that it appeared to be the "worst case of spousal abuse he had ever seen". He stated that she told him that she had called 911 but the defendant had taken her phone from her and when the police came, he forced her to hide in the basement behind the water heater. He also stated that he did not know the woman and did not know the defendant.
[24] The witness was cross examined vigorously as to why so little of his evidence was contained specifically in his notes. He stated that he did not have his note book with him when he was speaking to her and that he had prepared his notes within two hours after other officers took over the investigation (Parson and Weston). His description of her is contained in his notes, but the name of the defendant and her specific statements of what she says the defendant did to her are not. He stated that this was a special case and he had a specific recollection of the conversation. I put more weight on his evidence of the observations of the defendant, and his view that she did not smell of alcohol, and while she was very upset and nervous, she did not seem to be under any disability. He also stated that he encouraged her to tell him what happened and explained to her the legal procedures with regard to the arrest and detention of the defendant. He denied in any way threatening the witness.
[25] With regard to his evidence about what she said to him, I note in her evidence (even after looking at his notes) she was not able to recollect any of the conversation. She certainly does not say anything to contradict the officer's version of the events and certainly makes no allegations that he threatened her to give a statement to the police implicating the defendant.
Mark Weston
[26] Mark Weston is an officer with the C.I.D. unit and he spoke to Officer Dinwall and went by himself into the room where Ms. Flynn was. He said she was sitting near the door and while it is usually open, he had no specific recollection on that day if it was open. He described her as per the photo Exhibits which he identified. He described her as being fearful. He said he could smell a slight odour of alcohol but denies that she showed any signs of impairment. She was tired. He described her physical appearance as one who has been "beaten up". He spoke briefly to her and she said that she wanted to go to the hospital.
[27] The officer left the room and ran into the SOCO officer (P. C. Parson) and asked her to attend and take photos. He did a quick computer check on Ms. Flynn and there was a reference to a previous incident in which the defendant's name appeared. He printed out the defendant's picture.
[28] He returned to the room and showed her the picture and she responded: "Oh my god I am in trouble". He denied saying to her, "It was him wasn't it"? He made arrangements for her to be taken to a hospital close by, in an unmarked police car. He stated that Ms. Flynn and Officer Parson were outside having a cigarette and Officer Parson said that "it is the defendant who has done this" - "Houman had me stuffed behind a furnace".
[29] The witness describes the hospital as being uneventful. He did not place any pressure upon the witness and he was trying to be compassionate to Ms. Flynn. The officer could not deny that he may have said something to her about the investigation, but denied threatening her in any way or indeed saying anything at all, as he wished to have only her story on video.
[30] He recalls that someone called the Ms. Flynn's friend and as they were leaving Andrea came up and she spoke to Ms. Flynn. She seemed shocked at Ms. Flynn's physical condition. The officer said he stood back and let them speak. Andrea then left and they took Ms. Flynn to the police station. It was about an hour before the video statement started. The officer filled out the domestic abuse form with the witness and then prepared for the statement, including getting information about the arrest of the defendant.
[31] The witness was sworn on the video but the form for swearing was not completely filled in and it was not signed by the witness Ms. Flynn.
[32] The officer pointed out in the transcribed statement that he had not gone over any details previously with her before going onto the video. She agrees with him. This would support his contention that in the periods that he was with her, he did not ask her about the incident (page 9 of Transcript of April 2, 2010 statement).
[33] The officer denied that he threatened at any time, or made any enticements to the witness to give a statement, or coerced in any fashion to implicate the defendant in a crime. I note in the statement of April 2, 2010 the officer seemed careful not to get into any details of the incident until the witness has been properly sworn. This confirms his generally testimony that he did not want to engage her in conversation about any of this issues until it was done in the context of a KGB video interview after the swearing is complete.
[34] The witness attended in the afternoon of the next day and gave a further statement. The officer describes that she was more alert and provides further details of the statement taken the earlier day.
[35] The officer was extensively cross-examined about the fact that the witness stated, several times in her statement, how tired she was and that the officer should not have even attempted to obtain a statement from her. I am not sure that is an issue that need concern me directly. The question is (and it will be discussed below) - is there anything about the totality of the interview that brings into doubt its reliability? The witness did indeed answer questions for about an hour. At times she was expansive and at other times was simply saying, yes or no. There were no long pauses between question and answer. While she says she is confused, she explains it by saying, "I'm confused, like, with the exact order in which things happened because, like when I was getting - when I got hit in the head.....". About half way through the one hour statement, the officer noted her tiredness and wondered if she wished to continue. Her reply was, in my opinion, non-committal and he continued. After an hour, the officer wanted to go into the history of the relationship and decided that the matter could wait until another time and the interview was concluded.
[36] The officer was questioned about the standard form used by the York Regional Police in providing warnings to persons who are about to give a video statement to the police. The affirmation was not signed by her. I do not find this terribly important as the video clearly shows that she gave an affirmation to tell the truth (witnesses in court give a verbal affirmation without difficulty).
[37] The officer did not read to the witness two portions of the printed statement, namely, the portion that provides that if she changes her testimony the statement can be used in court and the portion which says: "Are you prepared to give a videotaped statement under oath"? With regard to the latter, the defence argues that the word "prepared" means that has she made preparations to give a statement. I do not think that is what it means. I take the word "prepared" in this context to mean, are you willing to make a statement. I note on Page 2 of the transcript of the statement, the officer explicitly asks if she consents to this video being made and she responds in the affirmative.
[38] With regard to the former, while it may be preferable to include that warning, there are some four other warnings, including criminal consequences to her, if she makes the statement and she is reminded that "it is your choice as to whether to make the statement" and "do you understand the importance of telling the truth in regards to this investigation". She responded affirmatively to these questions (on the form and on the transcript).
[39] The officer felt that on the second interview, taken the next day, it was not necessary to re-swear the witness and give all the formal warnings. He made reference to the K.G.B. nature of the statement and how it was necessary to be voluntary and truthful as per the day before.
Kristin Parson
[40] Kristin Parson is a York Regional Police officer and was on light duties. She was in the C.I.D. room and heard the initial information from Constable Dinwall. She saw the witness Ms. Flynn in the children's room and got her camera. She stated the witness was very distressed and sometimes would be holding her head in her hands. She took pictures. Ms. Flynn was saying over and over that she had "fucked herself" and did not want to harm the defendant's family. The officer did not know anything of any release terms that Ms. Flynn was on, but she did mention it. She differed in some detail with Weston's recollection in that she did close the door to take her pictures, and she did not recall Officer Weston asking her to take the pictures. She also did not recall telling Officer Weston that Ms. Flynn had told her about being hidden behind the water heater.
[41] She was cross-examined about the way that it is recorded that Ms. Flynn gave her the name of the defendant. It is clear that Ms. Flynn was initially reluctant to speak of the assailant. It is clear that she gave the name of the defendant in response to the officer inquiring about her assailant's size. This may not be completely straightforward, but it was not pestering the witness. I do not think it impacts on the reliability of her subsequent statement to the police. The fact that the officer believed that Ms. Flynn was giving her the defendant's name as the assailant is a reasonable conclusion to draw.
[42] She went to the hospital with Ms. Flynn. At one point she differs with Officer Weston's evidence in that she believes that Ms. Flynn's friend is with her in the hospital for a time. That was a statement she made outside of her notes. She does confirm the conversation between Ms. Flynn and her friend outside of the hospital.
[43] She and Officer Weston also say contradictory things about how they knew the identity of the defendant. Officer Weston speaks about Officer Parson saying to him that Ms. Flynn said to him that she had been stuffed behind a furnace. Officer Parson does not speak of that.
Section 9(2) Application
[44] The Crown alleged that the defendant gave statements to the police on April 2, 2010, and April 3, 2010, which differ substantially from the version of events she has related to the court today. The statements of the defendant were recorded on videotape. The Crown wishes to cross-examine on those statements. I have viewed both statements and reviewed the Transcript of both of the statements.
Video Statement April 2, 2010
[45] The video statement begins at 3:01 p.m. and is completed at 4:04 p.m. The witness relates she is tired and is on Adavan. The witness is warned the consequences of making a false statement and she is sworn (I have noted that she did not sign the form put in front of her). The witness is also told she does not have to make a statement. She is cautioned in a fashion similar to the secondary caution given to a suspect. As noted earlier, some aspects of the form are not brought to her attention.
[46] The witness states that she went to the house of the defendant to pick up some of her things and they ended up in an argument. She states that she wanted to leave but he did not want her to. She stated that he locked the door and he physically blocked the way. She is confused as to the sequence of events as she describes at one point leaving the house and he follows her in the car.
[47] She states that at one point in the morning she called 911 and he then became really angry. He tells her to "fucking well better hang up". It is in the morning at this time.
[48] She states that he picked her up and took her to the laundry room and smashed her head against a pole. She describes him punching her face and causes her to bleed. She states that she was hiding behind the water heater in the basement. She states that she did not hear the police come to the door in response to the 911 call. She describes bleeding and "gushing blood". She states that at one point she is without her clothes as he wishes to wash the blood off.
[49] She states that she ran out of the house and over a fence, but the defendant came up in his car, put her back in the car and was taking her back into the house. She describes being in the house and he takes everything from her purse and rips her wallet and smashed a laptop.
[50] Further into the statement she says that the defendant's mother, who lives upstairs, came downstairs and the defendant told her that she had "cut her face". The witness did not disagree and she went upstairs and put on some clothes before leaving.
[51] He then went out. She left and went to her car which was parked in a nearby plaza.
Video Statement April 3, 2010
[52] The interview was started at 3:30 p.m. and completed at 4:17 p.m. Ms. Flynn was not sworn or cautioned for this statement, but the officer stated that it still applies for this statement. She spoke of a previous incident in August of 2009, where they had argued and she left the home and he came and tried to pull her back. A man stopped and the defendant said to him, "What the fuck are you looking at it's just a domestic. Fuck off". The defendant kicked the person's car and then ran away. The defendant did not cooperate with the police on that occasion and she said that was afraid of the defendant.
[53] She states that she is more clear-headed, as yesterday she had been given medication at the hospital. She states that the marks on her nose are bite marks from the defendant who bit her nose.
[54] She also stated that more things happened that night including the fact that after she was at the defendant's home they went to another person's home by the name of Victor. At one point she left the home and called the cab on a cell phone, but the defendant and Victor picked her up in their car. She was taken back to the defendant's home. She told Victor she did not want to stay. She stated that she cut herself with her keys while she was sitting on the floor.
[55] The defendant was yelling at her and calling her a whore and stated that she was going to get him into trouble.
[56] She describes that the defendant and Victor were drinking and doing cocaine. She states that at this time she had one drink. She denies having taken any drugs herself that evening.
[57] She speaks of the defendant's mother speaking to her and trying to calm her down. She states that the parents must have heard her screaming downstairs and they certainly saw the blood on her. She describes a conversation with the defendant, herself and the defendant's mother about her "hitting her head". She stated that she made it clear that it was the defendant who did it to her.
[58] She also describes a conversation with the defendant's father where the father tells her not to "leave right now because there are police everywhere".
[59] She then leaves and goes to the police.
[60] Both statements are extremely rambling affairs and it is sometimes difficult to follow the narrative. She does describes being punched by the defendant and pushed into a pipe, which appears to have caused the serious bleeding and bruising to her face. She also describes being bit. On more than one occasion she is forced into a car or kept in the basement apartment.
[61] It differs significantly from her statement to the court today. In one respect it is similar in that she states she told the police that he slapped her on an earlier occasion when her son was present.
[62] She stated many times in her testimony that the police pressured her into giving a statement implicating the defendant in a crime. She stated that as she was in breach of her probation (recognizance) by being with him, they stated to her that they would arrest her if she did not implicate him. The transcript of both the statements clearly does not disclose any of this. The officer is quiet and polite with her and she seems at ease with him.
Conclusion on 9(2) Application
[63] The combined statements to the police from April 2 and April 3rd, 2010 are significantly different from her statement to the court about the events of April 1st and 2nd 2010.
[64] With regard to the request to cross-examine under s. 9(2), must I consider the "reliability" of the statement? With regard to the statements to the officers, recorded in their notes and the first videotaped statement, the witness describes a significant intoxication from drugs and alcohol. The statement itself contains statements from the witness indicating she is tired and under the influence of Adavan. She also stated that she felt threatened by the officers in that they would charge her with breach of recognizance if she did not make a statement implicating the defendant. In cross-examination on the s. 9(2) application it was revealed that she attended the court house on July 9, 2010 with the purpose of retracting her statements made in April. She swore an affidavit before a Justice of the peace. She states:
"I was asked to give a police statement against (the defendant) while injured, scared, medicated and confused and due to these reasons my statements were not true. I cannot support the statements I gave, nor can I confirm they are true. I wish to retract them as I cannot even fully recall what statement I gave.......I asked police if I could have a day to give my statement after the shock and medication was out of my system, but was refused. Instead, I was forced to give a statement and then was asked to come back the next day to confirm. I feel this was entrapment and therefore none of my statements I feel I can confirm as true. My emotions were running high, I was under the influence of sedatives and nothing I said was true. I will not testify to support these claims."
[65] In her cross-examination she reiterated those sentiments. The affidavit does not include her present allegation in court that the police threatened her with a criminal charge if she did not give a statement.
[66] It was pointed out in the transcript during the April 2, 2010 in her statement she said several times she was tired and confused. At one point in the cross-examination she stated that she intentionally made statements to implicate the defendant because of her anger at him. With all due respect to the witness, that motivation does not speak at all of confusion. If she was lying for the express purpose of implicating him, then that was a sign of mental calculation and awareness. It is not a sign of being unable to respond because of a reduced mental state.
[67] I reviewed both of the video statements. It is clear in the first statement that the witness is tired (she is laying on her arm on the table before the statement begins). However, she seemed to be very animated with the police officer. While she yawned on occasion, she did not seem to be under the influence of drugs or alcohol. She responds to the questions, and at times, she demonstrates with her hands some of the events that happened. The officer seems to be non-confrontational and develops a rapport with the witness. He prods her for details, but does not badger her in any way.
[68] In the second interview, the witness is very vibrant, is smiling, bright and does not seem to be at all tired. Quite frankly, she seemed much brighter than she ever did when giving her evidence in court. When in court she would cover her mouth when speaking and speak in a very low voice.
[69] There is absolutely no indication in either of the statements that the witness is in any way giving the statements with any degree of reluctance. She is apparently a willing witness.
[70] There is nothing to support her allegation in court that the police officers in any way threatened her. In fact, when the police officer specifically told her to disregard anything that any officer may have said to her and that her giving of a statement is voluntary, she smiled when she responded that she understood the warning.
[71] The officers who testified denied in any way threatening her. They clearly wanted her to give a statement and encouraged her to do so. They felt there had been a significant crime and were eager to investigate it. The video statements support their version of the discussions with the witness. The officers' accounts of all the interaction with the defendant are not exactly the same in all detail. They are in accord however in their description of Ms. Flynn and the description of her emotional state. I accept the general tenor of their evidence in that they were not "constantly" at her to give a statement, and specifically there is no credible evidence that they were threatening to charge her with an offence, if she did not give a statement implicating the defendant. From the evidence of Officer Parson the issue of her breaching the terms of her release was something that was in Ms. Flynn's mind. There is no indication that the officers said anything at all to her about it.
[72] There was no indication that for the second statement the witness was suffering any effects of tiredness, or any drugs or alcohol. She does not allege that. She seemed brighter for sure in the second statement. The giving of the second statement and cooperating for more photographs clearly is confirmation that she wishes to freely have her discussions with the police officers about what happened to her. While she was not explicitly sworn for the second statement, she was reminded that it was being taken under the same circumstances as the first. It could not be seriously argued by the defence that the second statement may be unreliable because of the Ms. Flynn's condition.
[73] The defence urges upon me that the discrepancies in the police officers' accounts, (as they are) are indicative of their attempts to cover up the fact that they were aware of the existence of the defendant, and wished to use Ms. Flynn's potential charges for a breach of undertaking, to get her to implicate the defendant. I find that they were eager to pursue this case, and it would appear from very good motives, that is, there was a seriously injured person appearing at the police station seeking their help. I do not find that their differences stem from anything other than poor note taking, and 2 years later a difficulty recalling details. They are adamant that they never threatened her and that they did not "pester her to give a statement". It is true the witness was aware of her potential jeopardy in attending the station. It did not come from the officers. I find that they did not accentuate the issue. It may have been a factor in her mind, but it was not put there by the officers. The most important consideration is the fact that it was Ms. Flynn who attended at the police station. I cannot think of any reason for her to go to the station, other than to report a crime. If she had just gone home, she would not have been in any jeopardy for a criminal charge at all.
[74] The defendant states that the failure of the police to comply fully with the form (Exhibit G), coupled with statements made by the witness about her tiredness, should make me exercise my discretion to refuse the cross-examination under s. 9(2). The defence seems to say that this was a form of unfairness in addition to reliability.
[75] I do not find that the lack of sleep triggers any issues of unfairness to the witness. As I have already said, she proceeded to answer questions in a coherent fashion. The interview stopped after an hour. Perhaps she could have gone on longer or perhaps it could have stopped sooner. That may ultimately come to be an issue of weight if the statement is eventually put into evidence.
[76] I specifically find that the witness was not threatened by the police. The evidence of her condition, which is not being under the effects of alcohol or drugs, is confirmed by the police officers, and most importantly by the medical records. I specifically find that the Adavan, as described by the doctor would have a calming effect at the dose administered and would not have impaired her ability to think and cope. I also find that whatever other drugs or alcohol she may have had, it did not impair her in any significant way. She was very tired. It is obviously affecting her ability to recollect with clarity the details of the events (that is obvious from her subsequent conversation with the police). I cannot see how it would cause her to make a false allegation against the defendant.
[77] In R. v. Tran (2010) 2010 ONCA 471, 257 CCC (3d) 18 (Ont. C.A.) the court stated that the admissibility test under B. (K.G.) does not apply to a determination under s. 9(2) that is, the issue of reliability does not arise. While I have some discretion to deny the Crown the right to cross-examine on these previous statements, and would do so in appropriate circumstances, the fact remains that the defendant in driving to the hospital and chose to attend at a police station to speak to police officers about what had happened to her.
[78] In R. v. C.D. [2010] O.J. No. 4289, the court refused to allow cross-examination upon a video statement which had been recorded surreptitiously by the police, in a way which was "offensive to the privacy rights of individuals". The court also noted that the police had other inconsistent statements from the witness which could have been the subject of a s. 9(2) application. I agree with the justice that "discretion to allow or prohibit cross-examination can be exercised in different ways, in different cases". I note in R. v. C.D., it quotes a much earlier decision of the court of appeal in R. v. Carpenter where the court states: "that the trial judge can refuse cross-examination in view of the circumstances of the taking of the statements and his opinion of its reliability." Even conceding that there is some issue of reliability which may be part of the s. 9(2) analysis, it certainly does not rise to the level of "reliability" as contemplated in R. v. K.G.B. and R. v. Khelawon 2006 (S.C.C.) 57.
[79] I do not find that there are any such issues here, which would justify exercising a discretion to not allow the crown to cross-examine on these statements.
[80] I will allow the Crown to cross-examine the defendant upon her previous statements to the police on April 2, 2010 and April 3, 2010.
Appendix "B" – Ruling on Application to have Statements Admitted into Evidence
Dated: May 11, 2012
Court File No.: Newmarket Courthouse 10-03225 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Houman Khatambakhsh
Before: Justice Peter N. Bourque
Ruling on Application – released: May 11, 2012
Counsel:
- I. Abokor, for the Crown
- S. Feldman, for the accused Houman Khatambakhsh
Bourque J.:
[1] An application has been brought to have statements to police by Tarrynn Flynn admitted in evidence as a principled exception to the hearsay rules.
[2] The parties agreed that for the purposes of the determination on this issue, I could consider all of the evidence that I have heard, including the trial proper, and the s. 9(2) application. In my ruling on the s. 9(2) application, I have reviewed all of the evidence with the exception of the cross-examination of Tarrynn Flynn on her statements and further examination by the defence. I am not going to repeat that evidence and the comments I have made in that ruling with regard to the evidence and my findings of fact. I adopt them and rely upon them in my consideration of whether the video statements of April 2 and April 3, 2010, should be admitted into evidence for the truth of their contents. (see Appendix "A" attached)
[3] With regard to the test for admissibility, the failure of the witness to adopt the statements and insist on a different version of events (other than the guilt of the defendant) clearly gives rise to necessity.
[4] The issue raised by the defence is whether the statements are sufficiently reliable to be admitted into evidence. I note in this case that during her cross-examination by the Crown she admitted making the statements that appear in her statement. She quibbled on occasion about what she meant by some of the statements, but for the most part, it was her evidence that those parts of her interviews where she implicated the defendant in a criminal offence were lies made up by her, at the time, for various reasons. It is not a situation where she simply does not remember. The difference can be very important, because she can be fully cross-examined about the statements and her motivation for giving the answers that she did. I also note that she does not allege that she gave to the police some other explanation of the events outside of the statement. She certainly feels that she expressed to them her tiredness and that they were coercing her (more on that later), but she does not say that she gave to the police some other explanation (like the ones she gave in court), which was not recorded and outside the information she gave about the events. In that sense, it can be said that the statement is an accurate recording of her information given to the police on those two occasions.
[5] The defence relies upon the evidence of the witness, in the witness box, with regard to her assertion that the officers somehow coerced her into giving a statement implicating the defendant and secondly, the witness was so affected by drugs, alcohol, and a lack of sleep that the statement was inherently unreliable.
[6] With regard to her assertion in the witness box that she was coerced, there was nothing about her further testimony that changes my conclusions from the s. 9(2) ruling. She chose to attend at the police station to report what had happened to her. I do not accept that she went there because she was mad at the police and wanted to get back at the defendant. In any event, there is no evidence that the police had any role in getting her to the police station. Viewing both statements (and particularly the first statement) there is absolutely no indication of any coercion. The officer in the interview room certainly was not coercive. In addition, the witness freely spoke of these issues. I contrast her demeanour in the witness box. As I have pointed out, in the witness box she whispered, feigned lack of memory, made frequent outbursts about why did she have to be in court at all, and was generally not at all candid, or forthcoming, with her evidence. She would always retreat to the contention that she was a drug addict who would do anything and say anything for her habit.
[7] With regard to her mental state, I accept that she had consumed drugs and alcohol in the evening of the events, and it is clear from the first video statement that she is tired. However, she does not appear to be suffering from any lack of clear headedness. She is alert when answering questions, and while she would indeed ramble on, that seems to be her normal conversational style.
[8] With regard to the second statement, there is absolutely nothing which indicates she is under any disability whatsoever. She is at all times bright, alert and engaging the officer in the conversation. She testified in the witness box that she had taken cocaine before giving her statement. There certainly appeared no evidence that she was under the influence of any drug. Even if she did take cocaine, is this a motivation to lie, as she said she did throughout the interview? As I mentioned earlier, this is an issue that can and was covered in examination by the defendant and surely would go to the weight to be placed upon the evidence.
[9] In addition, she was sworn on the first occasion, and reminded of her affirmation on the second. The whole proceeding was videotaped and all questions and answers were comprehensible. There did not appear to be a lot of leading questions, other than to prompt the witness to be more specific.
[10] In addition to those indicia that I am able to observe for myself, there is the evidence of the attending physician and nurse at the hospital. No indicia of impairment, or otherwise by drug or alcohol, were noted by them. The neurological Glasgow Coma Scale test administered by the triage nurse indicated no possible neurological impairment.
[11] The witness Flynn denied to the triage nurse to drinking or taking drugs and the attending physician was of the opinion that Flynn was mentally able to make decisions about her own treatment. Their observations were made shortly before she gave her first statement to the police and there is no evidence that she consumed any alcohol or drugs from the time she attended at the hospital and the time she gave her statement to the police.
[12] R. v. Khelawon, [2006] S.C.C. 57, outlines the statement of the development of the law with regard to the admission of out of court statements pursuant to the principled approach as first set out in R. v. Khan S.C.C. and in R. v. K.G.B. S.C.C.
[13] The criterion of reliability here is threshold and not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact (R. v. Hawkins). The defence raised in his capable and fulsome submissions that there are aspects of the statements that may cause one to doubt their reliability. With respect, most of those issues deal with ultimate, not threshold reliability (example: the number of times she says she is confused – the fact that the red marks on her nose do not necessarily point to the fact that she was bitten on her nose).
[14] Where, as is the case her, there is a present opportunity to cross-examine the witness on the previous statement, it can be a crucial factor. In R. v. Devine 2008 SCC 36, [2008] 2 S.C.R. 283, the court stated at para. 19: "It follows however, that the degree of difficulty may be substantially alleviated in cases where the declarant is available for cross-examination on the earlier statement, particularly where an accurate record of the statement can be tendered in evidence".
[15] Here I have explicitly rejected the allegations by the witness that she was coerced by the police at any time with the threat that she would be prosecuted if she did not give a statement and implicate the accused. I also reject the assertion by her in court that the police were constantly at her in the hospital and at the police station to provide a statement.
[16] The following are the issues that I do accept, which impact negatively on the reliability of the statement:
The witness was very tired for the interview on April 2, 2012.
The witness has suffered significant injuries (howsoever caused) although she had been treated and released from hospital without any diagnosis of head injury which would affect any cognitive skills.
She was given Adavan at the hospital to calm her down, although I accept the doctor's evidence as to its effects and the fact that it was not long lasting.
She was under stress – again the injuries she had, the circumstances she related in her statement and just being part of this procedure would create the stress.
The police did not inform her of all of the potential issues arising from her statement and did not ask her at the end whether there was anything else she wished to add. The police did not follow all of the directions in Exhibit #6, including having her initial the form where there are responses to questions, and leaving out two of the questions.
For the April 3rd statement she was not explicitly sworn.
She was not clear (in her statement of April 2, 2010) as to all of the events and the sequence of events from the previous evening. The fact that this involves a series of actions over several hours at different locations gives some explanation for her failure to be completely clear at all times. I do not find that she was in a general state of mental confusion.
[17] The following are the indicia of reliability:
The witness was sworn before the first statement. The second statement was taken within 48 hours and she was reminded that it was being taken on the same terms as the first.
In both statements she was reminded many times of the need to tell the truth.
I have not found that she was so tired that she could not respond to the questions.
She is an adult with no evidence of any general capacitive difficulties.
There is no indication that the officers are being coercive in the interview or indeed asking a great deal of leading questions.
The video and audio record of the interview is complete, and I can draw my own conclusions from viewing the video and listening to her voice as to her potential levels of confusion or otherwise (I commented extensively on these issues in my previous s. 9(2) ruling.
The witness was presented for full cross-examination.
[18] With regard to the issue of the lack of oath on the second occasion, I find that it is ameliorated by the fact that it followed shortly after the first (within 24 hours) she was reminded by the police that it was taken under the same terms as the first statement and it was videotaped in its entirety. As stated in R. v. Tuan Trieu, 195 C.C.C. (3d) 373 O.N.C.A, the court stated at para. 78 "…I believe that when the other two indicators are present (video statement and cross-examination) the oath has very little burden to shoulder in the threshold reliability assessment".
[19] The Crown has the onus, on a balance of probabilities, to allow the statement to be admitted under the general prohibition against tendering it at trial for the proof of its contents.
[20] Each case must be assessed on its own facts and in light of the legal principles enunciated above.
[21] The defence pointed out on many occasions that the failure of the police to completely follow their protocol should lead me to the conclusion that the statements of the witness are not sufficiently reliable. I was referred to the decision of R. v. Henderson [2008] S.K.P.C. 153, where the judge points out that a "protocol for the police in obtaining these statements would be of assistance". I agree. However, its importance increases, or decreases, when there is a video/audio recording of the entire statement. I note that the protocol referred to her (Exhibit #6) is not a product of judicial draftsmanship while all of the items would be helpful, the failure to adhere to the form is not fatal to the Crown's application. The question is whether the witness was given enough information to know that she must be truthful, and that she need not give a statement at all if she does not want to. I believe that the questions asked by the officer (sometimes in several different ways) brought this home to the witness.
[22] In R. v. Douglas [2008] O.J. No. 279, the judge dealt with a situation of a tired witness who had ingested drugs, without being under oath. The judge found sufficient indicia of reliability including the fact that the statement was on video and the officers stressed she should tell the truth. I believe in sum total the indicia of reliability in this case is much greater.
[23] I believe that there is sufficient indicia of reliability as enunciated in R. v. K.G.B. and other cases to permit the statements to be admitted into evidence under the principled exception to the hearsay rule.
Released: May 29, 2012 Bourque J.