WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court File and Parties
Court File No.: 2811 998 10Y19173 00
Date: 2012-02-13
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
J.S.
Before: Justice M.T. Devlin
Heard on: November 21, 2011
Ruling released on: February 13, 2012
Counsel:
- K. Kennedy, for the Crown
- D. Maubach, for the accused J.S.
DEVLIN J.:
This is the ruling on a voir dire regarding the admissibility of the statements of the deceased complainant, M.W., in the case of J.S.
Mr. S. is a young person within the meaning of the Youth Criminal Justice Act.
He is charged with robbery and assault causing bodily harm in relation to M.W.
The charges stem from an incident which occurred on November 1, 2010.
ISSUE
The issue is whether the Crown has established on a balance of probabilities that the hearsay statements of M.W. are admissible.
This trial began on November 21, 2011 and was continued on February 7th, 2012. The Crown called 5 witnesses on the voir dire:
- M.W.'s step-mother, T.U.
- Tony Rizutto, the Principal of Westcreek Public School
- Dawne Wastesicoot, the Vice-Principal of Westcreek Public School
- Constable Dubois, the investigating officer
- Constable Campbell, the follow-up officer
The Defence did not call any evidence on the voir dire.
FACTS
The facts are as follows. In November 2010, M.W. was 10 years old and in grade 5 at Westcreek Public School. On November 1st, he went for a walk in his neighbourhood at approximately 5:00 pm. He was carrying his father's iPhone and used it to call home and find out what was for dinner. Shortly after using the phone, he was jumped from behind by 2 males who pushed him to the ground and then rummaged through his pockets and stole the iPhone. The 2 males then fled.
By chance, M.W.'s step-mother, T.U., saw the robbery and gave chase to the assailants in her car. When she cornered the taller boy, he eventually tossed the phone back to her. Ms. U. then returned to M. and called the police.
As a result of the robbery, M.W. was bleeding from the mouth. Two of his front teeth were chipped. His hands were scuffed and he had a sore wrist. He only required medical attention for his damaged teeth.
Most unfortunately, M.W. died in September 2011 shortly before this trial was originally scheduled to begin. The Crown is therefore seeking to have admitted the various statements M.W. made during the course of the investigation, namely:
- His oral statement to Constable Dubois
- His oral statement to Constable Campbell
- The oral statement he made to his step-mother
- The written statement prepared by Constable Campbell
The first statement was made on November 1, 2010 at the scene, shortly after the robbery. The other three statements were made at different times on November 3, 2010.
ANALYSIS
I turn now to the legal analysis. Counsel provided me with a number of helpful decisions which support the following principles summarized by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R., 787.
Hearsay evidence is presumptively inadmissible because it deprives the trier of fact from hearing the evidence from a sworn witness and from an opportunity to observe the demeanour of the witness. It also deprives the opposing party from testing the evidence through cross-examination.
There are a number of common law exceptions to the rule excluding hearsay evidence.
Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if reliability and necessity are established on a voir dire.
The trial Judge has a residual discretion to exclude admissible hearsay evidence on the basis that its prejudicial effect is out of proportion to its probative value.
In the case before me, the Crown is seeking to have the statements admitted under the principled approach to hearsay. This approach was first articulated by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R., 531 which allows hearsay evidence if the Crown can establish the twin requirements of necessity and reliability. The defence has properly conceded the necessity requirement in this case. As a result, the only issue to decide is whether the statements are sufficiently reliable to meet the threshold test for admissibility. As stated by the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R., 298:
This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances, the ultimate trier of fact will be in a position to sufficiently assess their worth.
The factors to be considered include:
- The spontaneity of the declaration
- The contemporaneity of the declaration with the events described
- The detail and degree of specificity of the information
- The personality and intelligence of the declarant
- The relationship between the declarant and the recipient
- The declarant's motive
See R. v. Khelawon, supra; R. v. SS, 2008 ONCA 140, [2008] O.J. No. 747, (O.C.A.); R. v. Toor, [2004] O.J. No. 4693 (O.C.A.); R. v. Mendez-Romero, [2008] O.J. No 512, (Superior Court of Justice).
I will now discuss each of the four statements made by M.W.
Statement #1
M.W.'s first statement to Constable Dubois was made on scene, shortly after the robbery occurred. Constable Dubois was in uniform and she arrived in a marked police cruiser. Mr. W. fully realized he was speaking to a police officer. Constable Dubois described him as shaken and upset about the robbery, but also as "brave and holding it together". Constable Dubois stated that M.W. was "very bright and very articulate for a 10 year old boy."
In this statement, M.W. provided a detailed account of the robbery which involved two youth, one tall and one short. Regarding the shorter youth, M.W. described his gender, height, build, complexion, age and clothing. His description can only be characterized as detailed, especially since both youth had pulled their collars up and used their hoodies to cover most of their faces.
I conclude that the Crown has established that this statement is reliable for the following reasons:
- it was made to a police officer contemporaneously to the robbery
- it is detailed and specific
- it was largely corroborated by T.U.
- there was no motive for M.W. to lie
Statement #2
The second statement is the one M.W. made to Constable Campbell the morning of November 3, 2010. In this statement, M.W. reiterated the information previously provided to Constable Dubois as they re-traced the route he had walked on November 1st.
Constable Campbell testified that M.W. was very articulate and bright, beyond what he would expect of a 10 year old child.
I have concluded that the Crown has established that this statement is reliable for the same reasons as the first statement.
Statement #3
The third statement is the one M.W. made to T.U. when he returned to school after lunch on November 3rd. Moments after passing J.S. in the principal's office, M.W. identified him as the shorter youth who had robbed him. M.W. also subsequently identified Mr. S. in 2 class photos. Immediately after he made the identification, Ms. U. asked M. if he was sure and explained it would not be fair to identify someone unless he was sure. M.W. assured his step-mother that the boy he identified was "for sure the one."
I have concluded that the Crown has established that this statement is reliable because:
- it was made spontaneously within seconds of M.W. seeing J.S.
- it was made within 48 hours of the robbery
- it was made to M.W.'s step-mother who had cautioned M. about not identifying anyone unless he was absolutely certain
- M.W. stated that he was absolutely certain of his identification
Statement #4
The fourth statement is the written statement that M.W. provided to Constable Campbell on the afternoon of November 3rd. Constable Campbell testified that he met with M. in private and that before taking a statement he explained to M. the importance of telling the truth. He then recorded, in writing, a verbatim account of what M.W. said. In this statement, M.W. confirmed his identification of J.S. as one of the youth who had robbed him. He also confirmed that he was "100% sure."
I conclude that the Crown has established that this statement is reliable because:
- It was made in private to a police officer
- It was recorded verbatim and in writing
- It was made within a few hours of M.W. spontaneously identifying J.S.
- It was made after M.W. was cautioned by the police officer to tell the truth
CONCLUSION
In summary, I conclude that the Crown has established on a balance of probabilities that all 4 of the statements made by M.W. are reliable. However, before I decide whether to admit these statements, I have been asked to consider two further issues:
Whether the statements should be excluded because their prejudicial effect outweighs their probative value; and
Whether the statements should be excluded on the basis that eye-witness identification is inherently unreliable.
I will address these issues separately. The statements made by M.W. address the identity of the youth who robbed him and as such, they are highly prejudicial to J.S. However, identity is a central issue in this case. In my opinion, the probative value of M.W.'s statements outweighs the prejudice.
Regarding the concerns with eye-witness evidence, I agree with defence counsel's submission on the well-documented frailties of eye-witness identification and the comments of the Ontario Court of Appeal in R. v. Miaponoose, [1996] O.J. No. 3216. However, in my opinion, these concerns affect the weight to be given to the statements, not their admissibility on the voir dire.
In conclusion, based on my finding that the Crown has established on a balance of probabilities that the statements made by M.W. are reliable, all four of his statements will be admitted into evidence on the trial under the principled exception to the hearsay rule.
Released: February 13, 2012
Signed: "Justice Devlin"