WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: [Not provided]

Date: 2015-06-01

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Dellan McMorris

Before: Justice M. Greene

Reasons for Judgment released on: June 1, 2015

Counsel:

• E. Jackson, S. Clark and P. Tsui for the Crown
• B. Ross and J. Carrington for the Defendant

Judgment

Greene J.:

Introduction

[1] Mr. McMorris is facing one count of first degree murder in relation to the death of Mr. Coombs. Mr. Jerome Bent is also charged with the murder of Mr. Coombs, but he is charged on separate information. Mr. Bent was called as a witness at Mr. McMorris' preliminary inquiry but he refused to testify. As a result, the Crown has applied to admit a three and a half hour audio recorded statement made by Mr. Bent to a police agent, Jermaine Graham, for the truth of its contents. Counsel for Mr. McMorris opposes this application but argued instead that another statement made by Jerome Bent to Jermaine Graham should be admitted into evidence for the truth of its contents.

General Evidence at the Preliminary Inquiry – Context

[2] On May 10, 2012, Mr. Delano Coombs was shot to death while exiting a vehicle that was moving slowly down a laneway at 4020 Dundas Street West.

[3] Ms. Rumbolt testified that on May 10, 2012 she drove Mr. Bent to a location on Old Dundas Road. This was very close to where the shooting took place. Upon arriving at this location, Mr. Bent met up with a number of other males, including Mr. McMorris. Mr. Bent then left with the other males and instructed Ms. Rumbolt to wait for him. According to Ms. Rumbolt, Mr. Bent returned approximately one hour later. There is no dispute that this took place around the time of the murder.

[4] Ms. Sulyok testified that on the day of the murder, she was exiting her residence when she saw three males shooting guns towards a vehicle. The vehicle was travelling very slowly down the laneway, as though the vehicle was in neutral.

[5] Ms. Daly testified that on the day of the murder, she was outside with her children when she saw the top of two heads walking in the laneway. She also saw a third person behind her. She then heard gun shots. The third person was wearing a dark hoody and she saw him flee west bound.

[6] Mr. Williams testified that on May 10, 2012, he was on his way to retrieve his vehicle from the garage when he heard gun shots. He then noticed a vehicle moving slowly up the laneway and a male stumble out of the car. He saw one person standing at the end of the laneway shooting in the direction of the vehicle. Mr. Williams testified that he heard maybe six shots.

[7] Mr. Mark Mertin testified that he saw part of the shooting. He saw one of the shooters run North West towards the train tracks. This shooter was wearing a blue hoody with white on the front and dark pants. Mr. Mertin also saw the vehicle the deceased was in and saw it hit a post.

[8] Mr. Mammo testified that he saw a black male walking towards the train tracks after the shooting. The male wore a white shirt and jeans.

[9] Mr. Mihailovich testified that he saw a vehicle in the alleyway driving very slowly. It stopped when it hit a post at the end of the laneway. He also saw a male running in the direction of the railway tracks immediately after the shooting.

[10] The police arrived on scene and conducted a very thorough search. They located shell casings for 9mm and 10mm rounds. The police also located a black hoody with white writing on the front near the train tracks. The hoody had gunshot residue on it. The police also found DNA on the hoody. Mr. McMorris' DNA could not be excluded as belonging to the DNA located on the sleeve of the hoody. A mix of three other persons' DNA was also found in the inner neck area of the hoody. Given the nature of the mix, it could not be compared to other persons for identification.

Mr. Graham's Evidence

[11] Mr. Graham grew up in Toronto in an area called Gooch Avenue. He associated with people from that neighbourhood as well as with people from 4020 Dundas Street West. Mr. Graham was friendly with Jerome Bent. They hung around sometimes at his place and at Mr. Bent's girlfriend's place. Mr. Bent and Mr. Graham had been friends for some 15 years by the time of the shooting.

[12] At some point in time, Mr. Graham discovered through gossip in his community that Mr. Delano Coombs had been killed. According to Mr. Graham three to four years prior to the murder, Mr. Bent advised him that Mr. Coombs had stolen his gun. In their community this is considered the ultimate display of disrespect.

[13] Mr. Graham testified at the preliminary inquiry that in the year following the death of Mr. Coombs, he and Mr. Bent had several discussions about the murder. In the first conversation, Mr. Bent admitted that he shot Mr. Coombs. He also indicated that Mr. Coombs deserved to be killed. In later conversations, Mr. Bent continued to admit that he shot Mr. Coombs but added that Mr. McMorris had been present, albeit not as a shooter. Mr. Graham, in his evidence, referred to Mr. McMorris as a "witness" as opposed to a shooter. This is what he gleaned from his previous conversations with Mr. Bent.

[14] Mr. Graham testified that one of their discussions about the murder of Mr. Coombs occurred after he ran into Mr. Bent while they were both in separate vehicles. They talked through the windows of the cars and Mr. Bent asked Mr. Graham to pull over. Mr. Graham pulled over and he and Mr. Bent then proceeded to have a private discussion. During this conversation, Mr. Bent advised Mr. Graham that he was paranoid and worried that he was going to get arrested for the homicide because he dropped a hoody at the train tracks as he fled from the shooting. Mr. Bent specifically indicated that he hopped the fence by the tracks and dropped the hoody he was wearing. He further stated that the hoody belonged to Mr. McMorris.

[15] Mr. Graham first told police about this conversation with Mr. Bent on November 9, 2012. It is unknown on what date the conversation actually took place. It is this conversation that counsel for Mr. McMorris seeks to admit for the truth of its contents.

[16] On April 3, 2013, Mr. Graham agreed to wear an intercept and to record a conversation with Mr. Bent. The conversation took place in the holding cells at the courthouse located at 2201 Finch Avenue. It is this conversation that the Crown seeks to admit into evidence.

[17] In this conversation which lasted 3 ½ hours, Mr. Bent and Mr. Graham were in a cell together. An undercover officer was present for much of the conversation as was another inmate. It is unknown exactly when they were in the cell and when they were outside or how close these other two parties were to Mr. Bent and Mr. Graham at any point in time.

[18] During this lengthy conversation, Mr. Bent and Mr. Graham spoke about many people from their neighbourhood who were dead or in prison. They spoke about a number of killings and who was responsible for those killings. Mr. Bent admitted to committing one other murder and two attempted murders. He also provided details of these events. The detail he provided about these crimes is largely confirmed by independent evidence.

[19] Mr. Bent also indicated to Mr Graham that he was going to be pleading guilty to serious charges and receive a penitentiary sentence. This was also proven to be true.

[20] After more than 2 ½ hours, Mr. Graham brought up the topic of Mr. Delano Coombs' murder. Mr. Graham testified that at this point in time he wanted to try and encourage Mr. Bent to talk about the murder of Mr. Coombs as it had not yet been addressed. With this aim in mind, Mr. Graham decided to make up a fact and present it to Mr. Bent. Mr. Graham then said that Mr. McMorris was taking credit for the death of Mr. Coombs. This was not true; he just said it to get a reaction from Mr. Bent. In response, Mr. Bent said "you're talking shit". Mr. Graham then denied that this was untrue. Bent then stated "He slapped him out. I came and he did it". The following exchange then took place:

Graham: Yeah. Are you serious?

Bent: Yeah.

Graham: Are you serious?

Bent: Yeah

Graham: Nah, you're lying

Bent: I swear

Graham: Why did he slap out Ying?

Bent: Huh?

Graham: Why?

Bent: Why Y.G.?

Graham: Yeah

Bent: Cause man dem called his phone supposedly saying he's gonna slap him out. 'Cause Links (PH)

Graham: …are you serious.

Bent: Link's supposedly called and shit saying Y.G.'s gonna slap you out, talking pure shit to Young. You never knew about that (unintelligible)

Graham: No

Bent: I showed you man he (unintelligible)

Graham: … you told me you fuckin' slapped him out

Bent: young did

Graham: Wow. That's fucked so you know a lot of people think you did it.

[21] This conversation continued for a while longer with Mr. Bent stating that Mr. McMorris (otherwise known as "Young") killed Mr. Coombs (otherwise referred to as Y.G. or Ying).

[22] Mr. Graham was asked about this portion of the conversation and he testified that he did not believe Mr. Bent at this point in the conversation. He testified that he thought Mr. Bent was being sarcastic or joking because Mr. Bent had already confessed to killing Mr. Coombs on previous occasions. He also used other visual cues to reach this conclusion though he could not state specifically what those visual cues were. Mr. Graham then tried to re-orient the conversation to get Mr. Bent to admit to what he had actually done to Mr. Coombs. Finally, after more prodding, at the top of page 242 of the transcript, Mr. Bent admitted to being involved in the shooting of Mr. Coombs. The following conversation took place:

Graham: How like he doesn't like he didn't realize like kay there's three niggas standing with hoodies

Bent: Naw, he didn't see. The car pulled up, we were all there waiting for him. The car just pulled up. He was supposed to get it, still.

Graham; Yeah but I'm saying like he sees you and Young obviously you guys both don't like him

Bent: I know. We're standing there like, I think he froze up and he, he tried to do something with the car. I dunno what he did, tried to like either put it in reverse I think he tried to put it in reverse. When he was doing it he was looking and he was like and he ended up putting it in neutral.

[23] The conversation continued from here with Mr. Bent giving more details about the firearms used in the shooting. At page 248 of the transcript Mr. Bent stated that he used a glock 17. Mr. Graham then asked if a 10mm was used as well and Mr. Bent replied "yes". Mr. Bent also told Mr. Graham that everyone in the neighbourhood had issues with Mr. Coombs, albeit is it unclear if Mr. Graham believed this to be true or not. Mr. Bent further spoke of the incident where Mr. Coombs stole his gun years earlier.

[24] At the scene of the shooting, the police located 9mm casings and 1 10mm casing. According to Det. Bui, a glock 17 fires 9mm rounds. The police also searched the area around the train tracks, where one of the shooters fled. The police found a black hoody with white writing on it. As noted earlier, it was sent to CFS for DNA testing. DNA from one person was found on the sleeve and the DNA from three people was found in a mix on the inner neck of the hoody. Mr. McMorris' could not be excluded as the person whose DNA was located on the sleeve of the hoody. CFS was unable to separate and test the DNA on the inside neck with anyone.

Issues Raised in the Case at Bar

[25] Two issues are raised in this case. The first is the Crown application to admit the 3 ½ hour statement by Mr. Bent to Mr. Graham into evidence for the truth of its contents. The second is the defence application to admit for the truth of its contents the conversation between Mr. Bent and Mr. Graham where Mr. Bent states that he was wearing the hoody that was later found by the police.

Hearsay Evidence - General Legal Principles

[26] Hearsay evidence is presumptively inadmissible at trial. Hearsay evidence will be admissible, if it falls into one of the traditional hearsay exceptions or if it meets the more recently developed test of necessity and reliability. Under this more recent test, hearsay evidence will be admissible where the party seeking its admission establishes on a balance of probability that the evidence is both necessary and reliable. The trial or preliminary inquiry judge does not make a final determination of what use should be made of the hearsay evidence, the judge's role is only to act as gate keeper to ensure that the best evidence available is presented in court.

[27] In the case at bar, the hearsay evidence in question does not fall into any of the traditional hearsay exceptions, as such, the court must consider whether the test of necessity and reliable has been met.

[28] Before this analysis can be conducted, it is important to keep in mind the rationale behind this newer approach to hearsay evidence. The modern more flexible approach to hearsay evidence, often referred to as the principled approach to hearsay, is founded on the reality that under the old traditional exceptions, reliable and trustworthy evidence was often being excluded at trial. As a result, justice was not being met. There can be no doubt that trial fairness is of paramount importance, but trial fairness can still be met in some circumstances by admitting hearsay evidence. As was stated by Charron J. in R. v. Khelawon, 2006 SCC 57 at paragraph 49:

The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

[29] In order to provide additional security to trial fairness, the Supreme Court of Canada held that even where the criterion of necessity and reliability are met, the trial judge retains the discretion to exclude the evidence if its probative value is outweighed by its prejudicial effect (R. v. Khelawon, supra, at paragraph 49).

1. The Crown Application to Admit the 3 ½ Hour Statement

[30] In the case at bar, the Crown seeks to admit approximately ten to fifteen minutes of a three and a half hour conversation between Mr. Bent and Mr. Graham for the truth of its contents. The Crown only seeks to admit 10 minutes of this conversation because only approximately ten minutes of the three and a half hour statement actually relates to the case at bar. The rest of the statement relates to general gossip, other crimes committed by Mr. Bent and Mr. Bent's legal predicament.

[31] There is no dispute that the statement in question is in fact hearsay. Nor is there any dispute that the criterion of necessity is met. Mr. Bent is charged separately with the murder of Mr. Coombs. Mr. Bent has admitted his involvement in the murder to Mr. Graham and has implicated Mr. McMorris in the murder. Mr. Bent was called as a witness at Mr. McMorris' preliminary inquiry but refused to be sworn and refused to give evidence. As Mr. Bent is in custody facing a number of serious charges, including murder, in my view, the contempt power the court often employs as a means of compelling an unwilling witness to provide evidence would have had no effect on Mr. Bent. Mr. Bent was excused and the Crown embarked on this Khelawon application.

[32] Given these concessions, the only issue that this court must address is whether or not the test for reliability has been met.

a) Reliability – General Legal Principles

[33] As noted above, the criterion of reliability is about ensuring the integrity of the trial process. Under this criterion the court must consider whether the evidence, which will not be tested under cross-examination, is sufficiently reliable so as to overcome the dangers arising from it being untested by contemporaneous cross-examination. (see Paciocco, D. and Stuesser, L., The Law of Evidence (5th Edition) (2008) at page 123 and R. v Khelawon, supra, at para 49)

[34] The reliability criterion does not focus on the ultimate reliability of the statement. Instead, the focus is on threshold reliably. The question the court must consider is not whether the statement is in fact reliable and to be believed by the trier of fact, but whether there are sufficient indicia of reliability to overcome the dangers associated with hearsay evidence. As Justice Charron stated at paragraph 93 of R. v. Khelawon, supra, "… trial judges must be mindful of the limited role that he or she plays in determining admissibility - it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire".

[35] In assessing whether or not threshold reliability is met, the court must turn its mind to the defining features of the hearsay evidence at the outset as this helps focus the admissibility inquiry. The fact that the out of court statement is being adduced for its truth should be considered in the context of the issues in the case so that the court can assess the potential impact of introducing the hearsay evidence.

[36] In other words, the reliability inquiry must not look at reliability concerns in a vacuum. The court must take a functional approach in assessing reliability and consider reliability in the context of the specific dangers involved in admitting the hearsay in the case before the court. It is the danger of admitting the evidence without any contemporaneous cross-examination that must be considered. This is because the rationale behind this exception to the hearsay rule is that there are times when the hearsay evidence is sufficiently reliable that cross-examination would yield little if anything at all. In these instances, there is no principled reason why the trier of fact should lose this valuable evidence. Other times, however, sufficient issues arise that the court can well envision the types of questions that would be posed in cross-examination and how it would impact the evidence. The role of the court is to decide which category the proposed hearsay evidence fits into (R. v. Khelawon, supra, at paragraph 107 see also R. v Couture 2007 SCC 28, at paragraph 80).

[37] In R. v. Singh, 2010 ONCA 808, the Court of Appeal made the following comments about the threshold reliability assessment at paragraph 30:

In determining the admissibility of hearsay statements, a trial judge begins with the presumption that the evidence is inadmissible: Blackman, at para. 37. Where, as in a case like this, reliability turns on the circumstances in which the statement was made, and the challenge to the reliability is based on the possibility that Trish was lying and that cross-examination could disclose that possibility, I think the evidence can be admitted only if the trial judge is satisfied that there is no realistic possibility that Trish was lying when she told her friend that she was with the appellant. I see this approach as reflecting the analysis in Khelawon. Charron J., in the course of applying the general principles to the statements made in that case and holding the statements to be inadmissible hearsay, said at para. 107: "[T]he circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination" (emphasis added).

[38] In R. v. Khelawon, the court stated that the criterion of reliability can either be met by:

a) the way the statement came out makes its contents trustworthy or

b) the circumstances permit the ultimate trier of fact to sufficiently assess its worth.

It is well established that these two methods are not mutually exclusive and can complement each other (see R. v. Blackman 2008 SCC 37 and R v. Khelawon, supra).

[39] In R. v. Khelawon, the Supreme Court of Canada explained the difference between the two complementary methods of assessing whether the criterion of reliability has been met by referring to past cases. In R. v. Khan, the focus of the inquiry was really on the circumstances in which the statement was made. The specific circumstances in that case provided sufficient comfort in its truth and accuracy. In that case the court looked at the spontaneous nature of the utterance, the language used by the declarant, the absence of motive to fabricate, the fact that the utterance came out without prompting and that it was corroborated by real independent evidence. All these factors led the court to conclude that cross-examination of the victim would not yield any relevant evidence.

[40] In R. v. Smith, the Supreme Court of Canada, in considering threshold reliability of four statements made by the deceased shortly before her death, the court looked at the circumstances under which the statements were made including any motive to lie as well as the potential for mistake. Some statements were admitted because the deceased had no motive to lie while others were excluded because there was motive to lie and there were concerns with her ability to make the observations relayed in her statements.

[41] Contrast this assessment with the assessment in R. v. B. (K.G.) and R. v. Hawkins. In both of these cases the court found that there were adequate substitutes for contemporaneous cross-examination. In R. v. B.(K.G.), the statement was made under oath, was video recorded and the witness could be cross-examined at trial. In R. v. Hawkins, the preliminary inquiry transcript was available.

[42] In R. v. Yuvarajah, 2013 SCC 41, the Supreme Court of Canada helpfully outlined specific areas of concern that exist when dealing with hearsay evidence relating to the inability for contemporaneous cross-examination. The Court specifically referred to concerns about:

a) perception;

b) memory;

c) narration; and,

d) sincerity

b) Application of the Law to the Case at Bar

(i) Context and Content of the Hearsay Statement

[43] Mr. McMorris is charged with murder. He is in the middle of his preliminary inquiry. I highlight this reality because while the case law does not draw a distinction between the application of the principled approach to hearsay at a preliminary inquiry as opposed to a trial, I am mindful of a couple of realities. Firstly, a preliminary inquiry judge has no jurisdiction to address credibility issues. This is meaningful in light of the reality that the threshold reliability issue often focuses on the credibility of the declarant or frailties that would be discovered were the declarant cross-examined. At a preliminary inquiry while the frailties may be revealed, the judge hearing the case must nonetheless consider the case most favourable to the Crown and not weight competing inferences. Secondly, the ability to make full answer and defence plays a different role at the preliminary inquiry as the judge presiding over the preliminary inquiry has no jurisdiction to convict or acquit the defendant. Finally, there are provisions of the Criminal Code that specifically permit the admission of hearsay evidence at a preliminary inquiry. All these realities suggest that preliminary inquiry judges should be cautious in excluding hearsay evidence.

[44] With that context in mind, I now turn to the role of the proposed hearsay evidence. Thus far, the Crown has led some evidence that places Mr. McMorris near the scene of the murder shortly before the murder. He is also connected to a sweater found a short distance away from where the murder took place; albeit there is no evidence he was wearing the sweater that day. The only direct evidence linking Mr. McMorris to the murder is from a statement that Mr. Bent made to his friend Mr. Graham.

[45] As noted above, Mr. Graham was placed in a cell with an intercept to record his conversation with Mr. Bent. Most of the 3 ½ hours were spent talking about other topics. Only approximately ten minutes of this conversation relate to the case before me. The rest of the statement deals with Mr. Bent's bad character and gossip from their neighbourhood, facts that are utterly irrelevant at this preliminary inquiry.

[46] To make matters more confusing the Crown is not seeking to rely on all the comments made by Mr. Bent to Mr. Graham about Mr. McMorris' role in the shooting. This is because Mr. Graham testified that Mr. Bent was not being truthful when he first implicated Mr. McMorris in the shooting. Mr. Bent first stated that Mr. McMorris was the shooter and Mr. Bent was just present. Mr. Graham knew, from previous conversations with Mr. Bent that this was not true. Mr. Graham can actually be heard on the intercept saying "you are lying" in response to Mr. Bent saying that Mr. McMorris was the shooter. The Crown only relies on the comments Mr. Bent made about the murder from page 241 of the transcript onwards. This is where Mr. Graham testified that he transitioned Mr. Bent into being truthful. In this latter portion, Mr. Bent implicates himself in the shooting as well as Mr. McMorris, he provides a motive for the shooting, and gives details of the shooting itself.

[47] The position of the Crown on this application was that the statements by Mr. Bent at page 241 of the transcript onwards meet the test for threshold reliability because

a) the circumstances in which it was made gives us comfort in its reliability;

b) much of what Mr. Bent told Mr. Graham is corroborated by independent evidence; and,

c) the statement was audio recorded.

[48] Counsel for Mr. McMorris argued that the circumstances surrounding the making of the statement do nothing to compensate for the lack of cross-examination. In fact, he argued that it raises more questions than it answers. Moreover, he argued that all the evidence that the Crown argued confirms the statement, is peripheral and as such does little to address the reliability of the statement on a material issue. Finally, he argued that the audio recording, while helpful to some degree does not resolve all the concerns given the fact that Mr. Graham himself testified that he relied upon visual cues to assist him in determining the veracity of Mr. Bent's utterances.

[49] The final contextual consideration is that Mr. Bent is also charged with this murder. He would surely meet the test for a Vertrovec warning at trial. Mr. Bent's evidence, even if he could testify, would be subject to additional scrutiny given his unsavoury character.

(ii) Circumstances Around the Making of the Statements

[50] There is no one set of circumstances that makes a statement intrinsically reliable. Instead, courts often look to a variety of different factors in combination when assessing the threshold reliability question under this prong. Factors the courts tend to consider include, but are not limited to:

a) Was the statement made spontaneously?

b) Was the statement made naturally?

c) Was the statement made without prompting?

d) Was the statement made without suggestions?

e) What is the relationship between the parties?

f) What wording was used by the declarant?

g) Was there a motive to fabricate?

h) Was the statement recorded?

i) Is there any confirmatory evidence?

[51] Crown counsel argued that in the case at bar, the statement made by Mr. Bent to Mr. Graham, happened naturally and in the context of two old friends have an honest discussion about their personal predicaments. The Crown pointed to the fact that Mr. Bent confessed to a number of his own personal crimes, that he would be entering a plea of guilty to serious offences in the next week and that he was going to receive a lengthy sentence.

[52] I agree that in the ordinary course, where two good friends are having a heart to heart discussion about their own criminal acts, the circumstances of this kind of conversation tend to give the trier of fact comfort in the reliability of the statement. The problem is that I would not describe the conversation between Mr. Bent and Mr. Graham, when they are talking specifically about the Coombs murder as a heart to heart conversation between two good friends. I agree that for the first 2 ½ hours of the discussion it seems that Mr. Bent is being completely truthful with his old friend, Mr. Graham. But interestingly, the one subject he does not bring up on his own, without prompting, is the Coombs murder. This topic is raised by Mr. Graham once Mr. Graham realized that he needed to be more proactive in order to illicit information about this particular murder from Mr. Bent.

[53] The second problem that arises, in my view, is that Mr. Bent, when he finally does talk about the murder of Mr. Coombs, it is, in Mr. Graham's opinion, not truthful. Mr. Graham in his evidence testified that when Mr. Bent stated that Mr. McMorris shot Mr. Coombs and Mr. Bent was just there, that it was his opinion that Mr. Bent was joking or being sarcastic. During the statement itself, Mr. Graham is actually heard saying "you are lying". Whether Mr. Bent was lying or joking, he clearly was not being truthful. For some reason, which is unknown at this time, Mr. Bent's candid admission of his own criminal acts ends at this point and he starts being less than candid. Perhaps it is because the undercover officer is present, perhaps it is because another inmate is present, perhaps it is because he is more concerned about this murder than the other murders he was involved with, or perhaps it is for some other reason altogether. These are all questions one would ask Mr. Bent were he available to be cross-examined. These are also factors that detract, in my view, from the reliability of Mr. Bent's statement.

[54] The Crown further argued that the statement is reliable because Mr. Bent had no motive to lie. In the case at bar, there is no evidence that Mr. Bent had a motive to frame or falsely implicate Mr. McMorris in the shooting of Mr. Coombs. However, there is no evidence of an absence of motive to fabricate either. In R. v. Czibulka (2004), the Appellate Court held that the absence of evidence of a motive to fabricate is different from evidence of no motive to fabricate. In my view, while there is no evidence that Mr. Bent had a motive to falsely incriminate Mr. McMorris, there is equally no evidence that Mr. Bent did not have such a motive. It is therefore my view that this factor does little to address the reliability concerns that arise from the fact that the evidence in question is hearsay evidence and the declarant is not available for cross-examination.

[55] In my view, many of the other factors frequently considered under this prong also do not serve to provide circumstantial guarantees of trustworthiness in this case. Firstly, I note that Mr. Bent's assertion that McMorris was involved in the murder of Mr. Coombs did not arise spontaneously but was suggested by Mr. Graham. Secondly, it was Mr. Graham not Mr. Bent, who first put three shooters at the scene. While Mr. Bent went along with this suggestion, it did not originate from Mr. Bent. Finally, when the firearms were addressed, Mr. Bent acknowledged that his firearm was a glock 17, but in relation to the second firearm used, it was Mr. Graham who suggested it was a 10mm. Mr. Bent only agreed with him. In my view, the conversation between Mr. Graham and Mr. Bent was akin to a suggestive interview. The majority of Mr. Bent's comments that serve to implicate Mr. McMorris did not come out spontaneously and were not instigated by Mr. Bent. They were made only in response to leading and suggestive comments by Mr. Graham.

[56] The last factor that I will address under this heading is that the statement the Crown asks the court to admit was arguably a statement made by Bent against his own penal interest. When he implicated Mr. McMorris in the shooting, he also implicated himself by placing himself at the shooting, stating the firearm he used and expressing his own motive for the killing. The Crown argued that common sense dictates that such statements are inherently reliable and as such the criterion of threshold reliability is met. I appreciate that comments made directly against one's penal interest often have an air of reliability such that the statement is deemed reliable. We admit confessions by defendants at trials regularly and one of the traditional hearsay exceptions is based on this reality. The courts have also recognized, however, that the mere fact of making a statement to a third party that implicates oneself in a criminal offence will not always overcome the dangers associated with hearsay evidence. In R. v. Kimberley, for example, the court held that given the specific facts of that case, a confession made by a person who was not a witness at trial was not admissible. While it was a statement against his interests where he implicated himself in a serious criminal act, it did not meet the test for threshold reliability because the declarant did not apprehend any risk of penal consequences. The same can be said for Mr. Bent. In my view, confessing to a fellow gang member who is well within the criminal network would not normally put someone at risk of a penal consequence. The presumption is that such people will not go to the police. In my view, given this reality, the fact that Mr. Bent implicated himself in the shooting (after he first only implicated Mr. McMorris) does not provide any circumstantial guarantee of trustworthiness to justify the admission of the statement by Mr. Bent to Mr. Graham.

(iii) Confirmatory Evidence

[57] It is well accepted that the presence of corroboration or confirmatory evidence can be considered by the court in assessing whether or not the threshold reliability prong has been met. In the case at bar, the Crown filed three charts outlining the independent evidence that served to confirm Mr. Bent's statement to Mr Graham. Two of the charts establish clearly that for the first hour or more of Mr. Bent's conversation with Mr. Graham, Mr. Bent was being truthful. He admitted to committing one other murder and two attempted murders. There is an abundance of confirmatory evidence as it relates to these other criminal acts. Moreover, Mr. Bent also made admissions about his own predicament including that he will be pleading guilty to offences and receiving a penitentiary sentence. This was also true.

[58] The Crown also argued that there was confirmatory evidence of the information provided by Mr. Bent to Mr. Graham about the murder of Mr. Coombs. She pointed to three specific areas: that Mr. Bent said there were three of them present for the shooting; that Mr. Bent stated that the vehicle Mr. Coombs was in was moving as if it was in neutral; and, that Mr. Bent stated that the type of firearms used in the shooting were a glock 17 and 10mm. All these facts are consistent with other evidence presented at the preliminary inquiry. Eyewitnesses to the murder saw three shooters, the vehicle with Mr. Coombs in it was seen by the eyewitnesses and it was moving the way Mr. Bent described in his statement to Mr. Graham. Finally the firearms used in the shooting as described by Mr. Bent match the casings found by the police at the scene. Moreover, a hoody with Mr. McMorris' DNA was found in the area where one of the shooters fled.

[59] Mr. Ross, on behalf of Mr. McMorris argued that none of this evidence truly corroborates the hearsay evidence because it does not confirm that Mr. McMorris was actually involved in the murder of Mr. Coombs.

[60] I disagree with Mr. Ross that for evidence to be confirmatory or for the evidence to corroborate the hearsay statement, the independent extrinsic evidence has to confirm Mr. McMorris' involvement in the murder. While there is not a lot of case law describing confirmatory evidence in the hearsay context there is a substantial body of case law on the meaning of confirmatory evidence in other contexts. I see no principled basis for not applying the more general definition of confirmatory evidence to this stage of the hearsay inquiry.

[61] Drawing from the Vetrovec case law, to be confirmatory, the evidence must firstly be independent (see R. v. Vetrovec and R. v. Couture, supra). In the case at bar, I accept that the evidence the Crown relies on is truly independent.

[62] Secondly, the evidence must be material. This does not mean that the confirmatory evidence needs to confirm all the key aspects of the hearsay statement or that it has to directly implicate the defendant or relate directly to the defendant's role in the crime (See R. v. Couture, supra, at paragraph 83, see also R. v. Kehler, 2004 SCC 11). To be confirmatory, the evidence only has to confirm enough of the statement in that it restores one's confidence in the veracity and reliability of the statement (see R. v. Archer (2005) and R. v. Krugel (2000)).

[63] Ultimately, to be confirmatory or to corroborate the hearsay evidence, the extrinsic evidence has to restore the trier of fact's faith in relevant aspects of the account. In my view, the confirmatory evidence relied upon by the Crown leads me to have great confidence that the first two hours or so of the discussion between Mr. Bent and Mr. Graham meets the test for threshold reliability for the admission of hearsay evidence. The difficulty I have in the case at bar, is that it appears on its face that something changed later in the statement because Mr. Bent stopped being truthful. It is irrelevant whether he was joking, being sarcastic or lying when he first started talking about the Coombs murder. What is relevant is that Mr. Bent, at least in Mr. Graham's opinion, stopped being truthful. In many cases, the fact that Mr. Bent's statement to Mr. Graham could be confirmed in many respects, even if not directly about this murder, would be enough to meet the test for threshold reliability, but in the case at bar it is not because something seems to have changed by the time Mr. Bent is drawn into discussing the Coombs homicide. It is because of this change in the nature of the discussion that the confirmatory evidence of the murder of Mr. Davies and the attempt murder of Mr. Matthews and Mr. Wright does not assist me in having any confidence in the reliability of Mr. Bent's statement about Mr. Coombs murder as it relates to Mr. McMorris' involvement in the homicide.

[64] In relation to the confirmatory evidence on the murder of Mr. Coombs, I accept that to a small degree this evidence does corroborate or confirm Mr. Bent's statement. The difficulty is that the specific utterances the Crown points to as confirmatory did not come out unprompted. Mr. Bent's statement that McMorris was present at the shooting only arose after Mr. Graham to some extent implicated Mr. McMorris in the murder by stating that Mr. McMorris was taking the credit for the shooting. In relation to the presence of the three shooters, this information first came from Mr. Graham, and Mr. Bent merely went along with it. Mr. Graham stated "how like he doesn't' like he didn't' realize like kay there's three niggas standing there with hoodies". Moreover, in relation to the ballistics, while Mr. Bent stated without prompting that he used a glock 17, the fact that the second gun was a 10mm came from Mr. Graham. Mr. Graham said "10mm you said". And Mr. Bent just agreed.

[65] Mr. Bent's comment about the vehicle moving slowly is truly independent, was said without prompting and is something that only someone who was present could have known. I accept that this is some form of confirmatory evidence. In my view, however, this confirmatory evidence is weak and not particularly compelling. It is not sufficiently confirmatory so as to override the other concerns that arise from the fact that the evidence is hearsay.

(iv) Can the Evidence Otherwise be Tested Without Contemporaneous Cross-Examination?

[66] In R. v. Khelawon, supra, at paragraph 63, the Supreme Court of Canada noted that valuable evidence should not be lost if there are adequate substitutes for testing the evidence without contemporaneous cross-examination. Commonly recognized substitutes include, but are not limited to:

a) Was the person under oath or affirmation?

b) Was the statement audio or video recorded?

c) Was the person ever cross-examined? And,

d) Can the person be cross-examined?

[67] This area of inquiry is not concerned with the actual truth of the statement but instead focusses on whether the trier of fact will be in a position to evaluate the evidence. In R. v. Hawkins, supra, the court held that the availability of a preliminary inquiry transcript where the witness had been thoroughly cross-examined was a sufficient substitute for contemporaneous cross-examination. In R. v. B.(K.G.), supra, the fact that the statement was taken under oath and videotaped, coupled with the fact that the person was present to be cross-examined at trial was sufficient.

[68] On the flip side, in R. v. Doung, (2007), 2007 ONCA 68, 217 C.C.C. (3d) 143 (Ont.C.A.), the Court of Appeal held that a witness' prior statement ought not to have been admitted at trial because it did not pass the threshold reliability test. While the witness was present at trial and could be cross-examined, the court held that meaningful cross-examination was not possible because the witness was unable to recall events and could not answer most of the questions put to him in cross-examination.

[69] In the case at bar, the Crown relies on the fact that the statement was audio recorded as a basis to conclude that there are adequate substitutes for contemporaneous cross-examination so as to meet the test for threshold reliability. Respectfully, I disagree. Firstly, I note that Mr. Bent was not under oath or affirmation at the time that he was speaking to Mr. Graham, the discussion was not video-recorded and like in R. v. Doung, there will be no cross-examination of Mr. Bent at this hearing. Not only will he not be cross-examined at this hearing, no inquiries were made by Mr. Graham of Mr. Bent of exactly what role Mr. McMorris had in the murder or what he did. There is a complete absence of details about what Mr. McMorris did during the shooting.

[70] I appreciate that the statement was audio recorded and I applaud the police on their attempts to preserve valuable evidence, but this only serves to address the accuracy of the witness' account of what Mr. Bent said. The fact that the statement is audio recorded does little in my view to test the sincerity and credibility of the statement.

[71] Moreover, I note that Mr. Bent's facial features and demeanor in response to Mr. Graham's very suggestive comments about Mr. Coombs murder cannot be scene. These visual cues could be very helpful in assessing what impact, if any, Mr. Graham's suggestive comments had on Mr. Bent. I further note that when Mr. Graham first mentioned the murder of Mr. Coombs to Mr. Bent, instead of asking Mr. Bent about his role in the murder, or casually bringing up the death, he implicated Mr. McMorris by making up a lie and saying that Mr. McMorris was taking the credit for the death of Mr. Coombs. Mr. Bent's physical reaction to this is unknown. All that is known is that Mr. Bent then runs with this information, and stated for the first time that Mr. McMorris shot Mr. Coombs and he, Mr. Bent, was merely present. Mr. Graham clearly does not believe this as he can be heard on the audio tape saying "you are lying". Moreover, in court Mr. Graham testified that he did not believe Mr. Bent when he said this, in his mind; Mr. Bent was being sarcastic or joking. Without visual cues, the trier of fact cannot tell if Mr. Bent is joking or lying, something that could be very relevant at trial.

[72] In re-examination, Mr. Graham was asked at what point he started to believe that Mr. Bent was telling the truth. Mr. Graham testified that it was when Mr. Bent admitted to being involved in the shooting (at page 241 and following). Mr. Graham testified that his own opinion about when Mr. Bent was being truthful or when he was joking was based partly on the content of what was said based on his personal knowledge of events and based partially on visual cues that are not available to the trier of fact. Given this reality, I cannot find that the statement can adequately be tested by the trier of fact without cross-examination when the trier of fact is missing these vital cues.

[73] To make matters more complex, it seems to me that it would be quite difficult to parse out the parts of the statement where Mr. Graham asserts Mr. Bent is being truthful about the murder and the parts where Mr. Graham is of the opinion that he is not. It is possible, if not likely that the whole statement would have to be put into evidence. If this is the case, the trier of fact has no way of discerning from the audio recording itself at what points Mr. Bent is truthful or not. Instead, to assess the statement, to some degree, the trier of fact is at the mercy of Mr. Graham's personal opinion. This is because it was Mr. Graham who has a broad base of historical information to help assess the veracity of Mr. Bent's comments not the trier of fact and it is Mr. Graham who actually saw Mr. Bent's face and demeanor when he spoke about the Coombs murder. While this factor is not determinative, because it is possible that the statement could be severed in a way so that only the portion from page 241 of the transcript and onwards is used in evidence, it does highlight the reliability concerns that arise in this case.

[74] In my view given the fact that the statement was not made under oath, there was no cross-examination or questioning of any kind when the statement was made, there will be no cross-examination at this preliminary inquiry, and the visual cues that helped guide Mr. Graham in his assessment of the veracity of Mr. Bent's statements are missing it cannot be said that the trier of fact will be equipped with sufficient information to meaningfully assess the reliable of this statement.

[75] I note that in R. v. Barnett et al, [2007] O.J. No. 5720 (OCJ), Justice Lipson was faced with a similar situation. Mr. Simpson-Rowe was a separately charged co-accused in the murder of Jane Creba. He had given lengthy statements to the police implicating himself and the separately charged defendants. At the preliminary inquiry, Mr. Simpson-Rowe refused to be sworn and refused to give evidence as such the Crown sought to admit his statements to the police for the truth of their contents. In concluding that the statement was admissible, Justice Lipson noted the following:

80 I would also observe that the inability to cross-examine J.S.-R. can be compensated for in other ways. At trial J.S-R. will undoubtedly be characterized as an "unsavoury" witness whose evidence would draw an appropriately worded "Vetrovec" warning. As well, the trial judge will be required to caution jurors about the limitations of the statements and their need to exercise caution before relying upon them. No doubt, those factors pointing to the unreliability of the statements made by J.S.-R will be underlined in the charge to the jury. I am also confident that counsel can effectively, as they did in this preliminary hearing, demonstrate to jurors through other evidence as well argument why it would be unsafe to rely on the statements made by JS-R in light of such factors as motive to lie, his criminal background, his alleged gang affiliations, the internal inconsistencies found within his statements and contradictory evidence from other witness. Of course, the jury will be instructed that they can accept none, some or all of the statements made by J.S.-R.

[76] In the case at bar, like that in R. v. Barnett, at trial, Mr. Bent will likely be subject to a "Vetrovec" warning and defence counsel will be able to reference Mr. Bent's criminal background and gang affiliations as a means of discrediting the statement. In my view, however, the case at bar can easily be distinguished from the facts in R. v. Barnett. Firstly, there was a video of many events that took place just prior to the shooting of Jane Creba that independently confirmed Mr. Simpson-Rowe's statement to the police. Secondly, numerous witnesses corroborated Mr. Simpson-Rowe's evidence on the facts leading up to the shooting and during the shooting itself. In fact, Justice Lipson produced pages and pages of independent confirmatory evidence of many of facts provided by Mr. Simpson-Rowe that were material to the issues raised at the preliminary inquiry. Moreover, Mr. Simpson-Rowe's statements were made under oath, after he was given his rights to counsel and they were videotaped. Finally, there was no suggestion that the police led Mr. Simpson-Rowe into implicating others. Mr. Simpson-Rowe merely gave his version of events to the police. Contrast this with the case at bar were the Crown has provided very little confirmatory evidence that Mr. McMorris was present and active in the shooting. Moreover, the statement is not videotaped and was in response to suggestive and leading questions by Mr. Graham in a cell where other parties were present.

Prejudicial Effect v. Probative Value and the Preliminary Inquiry

[77] In R. v. Khelawon, supra, the Supreme Court of Canada held that even where the hearsay evidence meets the criterion of necessity and reliability, the court retains the residual discretion to exclude the hearsay evidence where its prejudicial effect outweighs its probative value. In my view, given that this is a preliminary inquiry, it would only be in very rare cases where evidence that is necessary and meets the test for threshold reliability will be too prejudicial to admit.

Conclusion on the Crown's Application

[78] After considering all the evidence, I find that the Crown has not met her burden in establishing that the hearsay statement is sufficiently reliable such that the dangerous associated with the hearsay evidence can be overcome. I appreciate that Mr. Bent and Mr. Graham have been friends for a long time, that Mr. Bent has otherwise truthfully confided in Mr. Graham and that he spoke about events contrary to his own interest. These factors, however, are not compelling in this case given the other frailties that have already noted:

a) Mr. Bent was not truthful when he initially spoke of the murder and Mr McMorris' involvement in it;

b) Mr. Graham prompted the discussion of Mr. McMorris and the murder;

c) Mr. Graham made suggestions to Mr. Bent about the murder and Mr. McMorris;

d) There is very little confirmatory evidence of Mr. McMorris actually being involved in the murder;

e) Mr. Graham's assessment of Mr. McMorris' truthfulness was in part based on visual cues that the trier of fact will never see;

f) The statement was not made under oath; and,

g) The evidence has not been and cannot be tested in any meaningful way.

[79] In light of these frailties, in my view, the crown has not met the test for threshold reliability and the statement will not be admitted.

2. The Defence Application – Mr. Bent's Statement to Mr. Graham by the Roadside

[80] Mr. Graham testified that at some point in the months following the murder of Mr. Coombs, Mr. Bent told him that he was worried that he would be arrested for murder as he had dropped the black hoody that he wore during the shooting near the train tracks that are located just north of 4020 Dundas Street West. Mr. Bent further advised that the hoody belonged to Mr. McMorris.

[81] Counsel for Mr. McMorris argued that while the lengthy statement to Mr. Graham in the holding cell at 2201 Finch Avenue Court House should be excluded, Mr. Bent's shorter and unrecorded statement to Mr. Bent about the hoody should be admitted. Crown counsel forcefully disagreed.

[82] Mr. Ross, on behalf of his client, argued that while there is no evidence as to when this statement was actually made, or how long the conversation lasted or what if anything precipitated the making of the statement, the statement nonetheless meets the test for threshold reliability because it is completely corroborated by independent extrinsic evidence. Mr Ross pointed to the following evidence that serves to confirm Mr. Bent's statement to Mr. Graham that he left a hoody at the scene:

a) A hoody was in fact left at the scene;

b) It was linked to Mr. McMorris and to others by DNA;

c) It was found in the same location that Mr. Bent stated he dropped it;

d) A shooter was seen running to the area of the train tracks; and,

e) Mr. Graham pointed to the area where Mr. Bent told him he ended up after the shooting. This is the same area where Ms. Rumbolt testified to meeting Mr. Bent after the shooting.

[83] I agree with counsel for Mr. McMorris that there is substantial corroboration for what Mr. Bent told Mr. Graham about the hoody. It is my view, nonetheless that the criterion of threshold reliability is still not met. I do not reach this conclusion lightly as I am mindful of the body of case law that speaks to relaxing the rules of evidence as it relates to the admission of defence. This relaxation of the rules of evidence is generally justified as being necessary to avoid a miscarriage of justice (see R. v. Folland). In the case at bar, however, there is no risk of a wrongful conviction. At most Mr. McMorris will be committed to stand trial for the offence of first degree murder. Moreover, the role of the preliminary inquiry judge is very limited. The preliminary inquiry judge cannot weigh competing inferences. The court must only consider the inference that favours the Crown. These realities suggest that the rule from R. v. Folland and other similar cases has less weight at a preliminary inquiry.

[84] With that said, I further note that despite the presence of confirmatory evidence, there are no other indicia of reliability as it relates to this statement. As previously noted, Mr. Bent is an unsavoury witness whose evidence, were he to testify, would be treated with suspicion. The conversation between Mr. Graham and Mr. Bent was not recorded in anyway and Mr. Graham did not report this conversation to anyone until long after it was made. This raises real concerns about the accuracy of the statement. Moreover, it is unknown where Mr. Bent had been earlier that day or what led him to have this discussion with Mr. Graham. While Mr. Graham and Mr. Bent were friendly, there is no evidence that they were sufficiently close to explain this meeting. Finally, as Mr. Ross, himself pointed out, there are times when gang members lie about their criminal acts as a means of gaining street credibility, providing a possible motive for Mr. Bent to mislead Mr. Graham. For all these reasons, this hearsay statement does not meet the test for threshold reliability and is also not admissible.

Released June 1, 2015

Justice Mara Greene