Court File and Parties

Court File No.: 14/11070

Draft Dated: May 20, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Anne Marie Fry

Before: Justice Gregory A. Campbell

Released: June 2, 2015

Counsel:

• C. Houle for the Crown
• E. Weber for the Accused

CAMPBELL J.:

RULING ON VOIR DIRE

1: THE PROCEEDING

[1] Ms. Fry is charged with assaulting and causing bodily harm to James Bush. This ruling arises from an application brought by the Crown to introduce out of court statements as evidence at trial. Two statements were made by Mr. Bush and one by his mother who spoke with Mr. Bush shortly after the occurrence. Mr. Bush died approximately three months after the statements were made. His death was the result of causes unrelated to the assault.

[2] During submissions, the Crown indicated that it did not seek to introduce the first statement of the deceased, an audio/visual body camera recording taken by the police upon their arrival at Mr. Bush's home following a 911 call. The Crown relies only on video portions of this recording in support of its application to admit a subsequent audio recorded statement that was taken by the police approximately two days later. The Crown also no longer seeks to admit a statement made by the deceased to his mother shortly after the occurrence, but similarly relies upon the declarant's statement as evidence of reliability to support a ruling for admissibility of the statement based on the principled exception to the hearsay rule. The defence submits the audio recorded statement to the police fails to meet the criteria necessary for threshold reliability.

[3] The evidence the Crown intends to rely on is critical to its case. The allegation of assault causing bodily harm against Ms. Fry is based entirely on the truthfulness of the audio recorded statement provided by James Bush two days after the incident. The fact the Crown wishes to offer this out of court statement for the truth of its content, in the absence of any contemporaneous opportunity to cross-examine the declarant, makes this evidence presumptively inadmissible in the absence of an exception to the hearsay rule. Since R. v. Khan, [1990] 2 S.C.R. 531 and its progeny, including R. v. Smith, [1992] 2 S.C.R. 915 and R. v. B.(K.G.), [1993] 1 S.C.R. 740, it has been well settled law that hearsay evidence that does not fall within the traditional categories may still be admitted as evidence under the principled approach if indicia of necessity and reliability are established on a voir dire.

[4] Mr. Bush died of unrelated causes on April 20, 2014, almost three months to the date of when it is alleged Ms. Fry assaulted him. The criteria for necessity has been met. I must determine whether the circumstances surrounding the making of the statement provided to the police brings with it a sufficient guarantee of trustworthiness to be received as admissible evidence. At this juncture, the admissibility inquiry is not focused on the question of whether there is reason to believe the statement is true but rather, as stated by Justice Charron in Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the focus is on whether the trier of fact will be in a position to rationally evaluate the evidence. To do this, it is necessary to determine if alternative substitutes were available or presented themselves during the taking of the statement as an alternative to the usual scrutiny of a witness being subject to contemporaneous cross-examination.

[5] I do not propose to review in summary form, or otherwise, the various Supreme Court decisions in this area beginning with Khan. All are instructive. R. v. B.(K.G.) and R. v. U.(F.J.), [1995] 3 S.C.R. 764 stand as examples for reliable exceptions based on prior inconsistent statements and the availability of the declarants to be subject to cross-examination. By contrast, cases like Khan, Smith and R. v. Hawkins, [1996] 3 S.C.R. 1043 met the reliability requirement because the circumstances in which the statement came about provided the court with sufficient comfort in their truth and accuracy.

JANUARY 21, 2014 - STATEMENT OF JAMES BUSH

[6] For reasons unknown, the police who attended with Mr. Bush shortly after his 911 call did not obtain a written or audio visual recorded statement from him. One of the officers who responded to the call, however, wore a body camera that recorded both audio and video. However, its quality was at times lacking, owing in part because the position of the body camera officer being such that Mr. Bush could not be seen or heard for periods of time; and, interfering sounds from movement or by location also undermined the quality and accuracy of the recording.

[7] Approximately two days later, Police Officer Burany was tasked by someone at his detachment to contact Mr. Bush and arrange to obtain a statement from him. It is not in dispute that Mr. Bush was in poor health. This observation as to his condition is quite separate and apart from the injuries alleged to have been sustained as a result of the charges against Ms. Fry. To that end, the body camera video showed Mr. Bush in poor health as a consequence of having cirrhosis of the liver with one of its notable symptoms, abdominal distension, clearly evident. In addition, there were marks on Mr. Bush's back which were consistent with having been recently struck and injured.

[8] Officer Burany testified that he arranged to interview Mr. Bush by contacting his mother. Mr. Bush had been staying there because he was in poor health owing to his medical condition and his recent injuries. Mr. Bush's mother, Brenda Kelly, arranged for the officer to attend to take a statement from her son. The officer arrived at Ms. Kelly's home to meet with Mr. Bush with an audio recorder. The officer said he chose to bring only an audio recorder because of Mr. Bush's condition, explaining that he believed this would be easier and quicker to use thereby not inconveniencing Mr. Bush more than would be necessary because of his condition. The officer described Mr. Bush as appearing jaundice at the time.

[9] After the officer set up his recorder, he began interviewing Mr. Bush by first explaining his reason for being there, asked Mr. Bush for his name and date of birth and then asked if he was familiar with an incident that occured on the 18th of January, 2014. Before inquiring further, the officer went on to make sure that Mr. Bush understood the necessity to tell the truth, understood the difference between an oath and affirmation and the consequences of misleading the police and obstructing justice. The officer further informed Mr. Bush that the statement he was about to provide could be used in court if, at any time, he changed his statement. The officer next asked questions in the realm of capacity. Mr. Bush identified his mother by name, spoke about his poor health and acknowledged having consumed some alcohol before he explained what happened to him during the evening of January 18, 2014.

[10] What is important to the Crown's case are the statements made by Mr. Bush during this recorded interview where he identified Anne Marie Fry as the individual who assaulted him.

2: ANALYSIS

[11] As I indicated earlier, none of the traditional hearsay exceptions assist the Crown in proving its case. The statement can only be admitted under the principled exception to the hearsay rule. This case turns on whether the evidence is sufficiently reliable to warrant admission.

[12] What is clear from beginning to end of the interview is that Mr. Bush had an inability to recall events accurately. When the officer asked Mr. Bush if he was familiar with an incident of January 18, 2014, he responded, "Somewhat." His inability to recall became more pronounced as the questioning continued. His inability to state things with clarity may have been for any number of reasons, including his physical and mental health owing to his medical condition, which he described as cirrhosis of the liver, and from being in a lot of pain. Mr. Bush acknowledged having had "A couple of shots" the morning of his interview. He then went on to indicate how he needed to stop drinking and that he was scheduled to have a kidney removed and his liver "scraped". When asked if he had taken any drugs Mr. Bush replied no and added that he needed to stop smoking marihuana because of his lungs. The officer did not ask Mr. Bush if he had smoked marihuana that morning before the interview. These answers and remarks raise questions that are reasonably foreseeable as questions defence counsel would want to ask Mr. Bush on cross-examination.

[13] Separate and apart from questions about capacity and ability to recall at the time of the interview, there is good reason to wonder if Mr. Bush's inability to recall events accurately may have been compromised because of his alcohol consumption during the evening before the alleged assault as he acknowledged being out with Ms. Fry at their friend's home drinking alcohol. Based on his remark to the officer about having to stop smoking marihuana at the time of his interview, counsel might also want to know whether Mr. Bush was smoking marihuana that evening as well all of which could have had an impact on his memory especially having regard to his poor health and frail condition.

[14] Therefore, the declarant's capacity to recall and describe events accurately at the time of making the statement and at the time of the occurrence is suspect and suggests his account of events may at the very least, not only be complete and quite possibly mistaken or inaccurate. Even when Mr. Bush was asked to describe what happened after he arrived home, his account was disjointed and inconsistent. At one point for example, it appeared Mr. Bush described being struck as soon as he arrived at the apartment when he stated the following:

"Sitting there just chilling and listening to music, watched T.V., you know, having a few drinks, doing nothing at all. And then all of a sudden, we get back to the apartment, and she just – that was it. I don't know what it was. All I know is I got clapped up side the head."

[15] Shortly afterward, Mr. Bush again described how he came to be struck:

"All I know is, we went in the house and I started messing around in my little man cave, and the last thing I remember, I was getting shot in the head with something."

[16] Again later, Mr. Bush described the assault in the following manner:

"I remember – the last thing I remember is I was laying on a, like – it's a futon, but like a Chinese futon. Hard to get up off of. I was just sitting there, and that's the last thing I remember. So, if there was an argument or whatever – she knocked it right out of my head. Like, you can see my forehead. I don't know what she hit me – but she hit me good."

[17] And then finally, Mr. Bush said further on this point:

"I remember just hitting the floor, like – like I rolled over on the hammock thing. All I remember is just going down."

[18] From the foregoing, it is unclear if Mr. Bush was hit after he walked in the door, or after he was in the house for a period of time and "messing around" in his "man cave"; or, if he was lying on a futon; or if he was sitting on the futon or lying in a hammock just before he was struck. Many questions arise that require clarification in this regard including how long after Mr. Bush arrived home was he struck and where was he in the home when he was struck. There is a lack of clarity that is at least suggestive of a compromised recall.

[19] The hearsay evidence from Brenda Kelly, Mr. Bush's mother, the Crown relies on as corroboration to indicate she was told by her son that he was beaten by the accused. She testified that her son told her "Anne left and came back and took a club to him and just kept hitting him." This remark clouds the evidence even further as it suggests the accused left from somewhere, I suppose either a room or maybe even the house at some point in time, and then returned with a club. Mr. Bush himself, however, said nothing about a club. He consistently stated on more than one occasions that he did not know what he was hit with. At one point he said, "She hit me in my face with something," and on another occasion he said, "I don't know what it was, but she grabbed something" and on another occasion he said, "I don't know what she hit me – but she hit me good."

[20] In addition, the statement reveals that Mr. Bush was also unable to recall what time all of this occurred. He had no idea. He surmised and then reasoned out a time during his statement indicating first that it would have been night time. Then added, that because he was not in the habit of staying out late it would have been, "...like 6 or 7, 8 or 9, or something."

[21] All of these represent important statements the defence undoubtedly would want to inquire further about and no doubt would do so if Mr. Bush were available and in the witness stand for cross-examination. And, there is something more. Mr. Bush acknowledged hitting Ms. Fry himself. Although he said he did so in self-defence, on two occasions he mentioned that he swung at Ms. Frye and at one point actually struck her in the jaw. Then, there is the question about how the altercation began. Mr. Bush said he had no recall stating at one point "I don't even know what the argument was about." To this end is noteworthy that Mr. Bush and Ms. Fry were in an on again off again relationship. In response to the officer's inquiry about their relationship, Mr. Bush stated the following:

"Um, she was basically staying with me, going home, staying with me, going home. And then she'd stay for a couple days, and she'd help me out. She even asked me to marry her, and then she walked down the road one day, after one of these little blackouts she has, goes down the road to some dude's house, has sex with him. I don't see her for two days. I asked her if she slept with him. She said yes. She broke it off, and then she still hung around."

[22] To my mind, there are very real issues in regard to the declarant's capacity at the time of the alleged assault, his ability to recall at the time of providing the statement to police and inconsistencies in regard to his account which are in no way controlled for by adequate substitutes that would provide the court with comfort as to the truthfulness or accuracy of Mr. Bush's statement. It cannot be said that in this instance, the absence of the ability to cross-examine Mr. Bush should go only to the weight of this evidence. While it is true that threshold reliability is not so focused on the question of whether there is reason to believe his statement is true, I cannot find any comfort in holding that the admission of this statement into evidence would leave me in a position to be able to rationally evaluate it. There is simply no circumstantial guarantee as to the trustworthiness of the statement.

[23] I should add one more thing. It was apparent that Mr. Bush was in poor health. He spoke about his medical condition. His mother disclosed this as well. He was suffering from cirrhosis and scheduled for surgery where a kidney was going to be removed and his liver also operated on. Mr. Bush was noticeably jaundice, his abdomen was distended and he had been instructed by his doctors to stop drinking and smoking.

[24] It seems to me that a further and better interview with audio/visual recording for the purpose of preserving Mr. Bush's evidence even after the accused had been charged would have been a reasonable course of action. A simple inquiry could have been made to Mr. Bush, his mother and even the doctor about Mr. Bush's prognosis subsequent to the interview of the 21st to determine if he might reasonably be expected to be available to testify in the fullness of time at trial. Surely it must have been foreseeable that a prosecution based solely on this audio recording alone was going to be problematic. A transcript having sufficient guarantees of trustworthiness that included the opportunity for defence counsel to conduct a cross-examination would have made the argument for admissibility of evidence de bene esse more probable and would have likely overcome the concern for threshold reliability.

[25] I am satisfied the circumstances surrounding the taking of the audio statement from Mr. Bush on January 21, 2014 have not met the admissibility requirement for threshold reliability under the principled exception to the hearsay rule. Accordingly, the out of court statement is not admissible at trial.

Released Orally: June 2, 2015

Gregory A. Campbell, Justice