Court Information
Ontario Court of Justice
Date: February 11, 2015
Court File No.: Halton 14-2850
Parties
Between:
Her Majesty the Queen
— And —
Nelson Cabral
Before: Justice David A. Harris
Heard on: October 1, 6, 29, 31, and November 19, 2014
Reasons for ruling on prior conduct evidence released on: February 11, 2015
Counsel
Mary Ward — counsel for the Crown
Brendan Neil — counsel for the defendant Nelson Cabral
HARRIS J.:
INTRODUCTION
[1] Nelson Cabral is charged with three counts of assault, all involving Tara Boehmer.
[2] Crown counsel elected to proceed summarily. Mr. Cabral pled not guilty. We commenced the trial. There were admissions made with respect to identity, dates and jurisdiction.
[3] Ms. Boehmer was called as a witness for the Crown. Ms. Boehmer testified that she did not remember any assaultive behaviour by Mr. Cabral. Crown counsel applied for permission pursuant to section 9(2) of the Canada Evidence Act to cross-examine Ms. Boehmer with respect to a videotaped statement which she had made. Ultimately, I allowed this request.
[4] Crown counsel then applied to admit the contents of that statement into evidence for proof of its contents.
[5] Crown counsel also applied to introduce evidence of prior discreditable conduct by Mr. Cabral. This conduct includes prior assaults and damage to property.
USE OF THE PRIOR VIDEO-TAPED STATEMENT
[6] I have previously observed that the circumstances present in this case are all too common. One only has to sit in our courts for a short while to learn that; (1) some men assault their partners, and that (2) some of these women not only forgive them, but also attempt to protect them from the legal consequences of these assaults. These women sometimes recant outright their statements to police, deny that any assault ever took place and state that they lied to police for some reason when they made the original allegations. Others simply forget what happened. They cannot remember being assaulted. They cannot remember giving a statement to police. They explain their amnesia as being the result of impairment by alcohol or drugs, or the result of emotional stress, or the result of the simple passage of time. Others choose to hide and refuse to appear to give evidence at all. It is extremely difficult to know in these cases when the recantation is true, and when it is the result of fear, financial dependence, emotional dependence, or a belief that it is normal and permissible for men to beat their partners.
[7] Prior to the Supreme Court of Canada decision in R. v. Khan, assaults that were not observed by at least one other witness could not be proven, if the complainant would not testify to the assault in court or at least adopt her earlier statement. There would be no evidence before the court and any charges would be dismissed. In R. v. Khan, the Supreme Court of Canada established a principled case-by-case exception to the hearsay rule based on necessity and reliability, allowing for out-of-court statements to be introduced for the purpose of proving the truth of their content in certain circumstances.
[8] This principled approach has been reviewed several times by the Supreme Court of Canada since then. The following extracts are taken from the reasons given by Justice Charron in R. v. Khelawon:
As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rational underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability ... the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. ... a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.
... In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible ... In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.
[9] In this case, counsel for Mr. Cabral conceded that necessity has been established. I agree with this. Tara Boehmer has insisted repeatedly that she has no memory of the events underlying the charges against Mr. Cabral. There were no other witnesses to whatever happened between her and Mr. Cabral. Her statement is the only evidence that the Crown can put forward in the attempt to prove these serious charges against Mr. Cabral.
[10] That does not resolve the issue however. There is still the question of reliability.
[11] The videotaped statement given to Detective Theriault was recorded in DVD format. Accordingly, there is an accurate record of what was said by her and of her demeanor while she was saying those things. She was advised at the outset that it could be used as evidence in court if she became unable or unwilling to testify for whatever reason. She was warned and she acknowledged being warned that it is a criminal offence to obstruct the police or to make a false statement to the police during an investigation. She was told and she said that she understood that it is a criminal offence to make a false statement under oath. A commissioner of oaths was then brought in to have her swear to tell the truth under oath.
[12] In doing this, the police took the appropriate steps to comply with all of the suggestions made by the Supreme Court of Canada in R. v. B.(K.G.).
[13] Counsel for Mr. Cabral argued however that this was not sufficient as it did not allow for contemporaneous cross-examination of Ms. Boehmer.
[14] Justice Charron addressed the importance of the opportunity to cross-examine witnesses in R. v. Khelawon, supra and went on to discuss when and how a statement may be introduced even in its absence:
As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make a full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns ... In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.
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. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little, if anything to the process. In other cases, the evidence may not be so cogent, but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.
[15] The Supreme Court of Canada admitted out-of-court statements in cases where there was no chance for contemporaneous cross-examination but the declarant was available for cross-examination at the trial or at the preliminary hearing and has even admitted out-of-court statements in cases where there was no opportunity for cross-examination of the declarant at any time.
[16] So what are the various factors which tend to establish the reliability of the video statement made by Tara Boehmer to Detective Theriault?
[17] We have an accurate record of what was said and of her demeanor while she said it.
[18] The statement was made under oath, after Ms. Boehmer was given the appropriate warnings.
[19] There was no reason for any memory problem. The statement to Detective Theriault was made the day following the events complained of with respect to two of the charges and within 15 days of the other charge.
[20] Ms. Boehmer repeatedly suggested during her viva voce evidence that at the time that she made the statement to Detective Theriault she was "confused", "emotional", "cranky", "very tired" and "a not very nice person". It was a very traumatic time in her life. She had consumed a large vodka and diet coke drink and half of a bottle of red wine the night before.
[21] None of this was borne out however when I watched the video. There was nothing in the content of her statement or in her demeanour while making it to even suggest that she was experiencing any difficulties as a result of mental or physical distress, or fatigue or impairment by alcohol.
[22] Quite frankly, she appeared more upset and uncertain and confused in court than she did during the interview.
[23] Her description of what happened is consistent with other unsworn statements made by her to police officers and to staff at the hospital.
[24] Her story came out without prompting. Detective Theriault asked almost no leading questions. Ms. Boehmer provided considerable uninterrupted narrative which included considerable detail. She often did this in a very matter of fact manner.
[25] There was no reason for Ms. Boehmer to make any of this up.
[26] During cross-examination by counsel for Mr. Cabral, she repeatedly rebuffed all suggestions that she had been attempting to make Mr. Cabral pay or that she would have said anything to get back at him for his cruel comment to her to the effect that he was glad that their unborn child had died.
[27] In addition, she never actually repudiated the statement even though she was given repeated opportunities to do so. She did not say that these events did not happen. She simply did not recall whether they did or did not. She was adamant in stating in court that she was not lying to Detective Theriault. She seemed genuinely taken aback when counsel suggested that she might have been lying "inadvertently" and she responded by asking him "what do you mean by that?" She said that she had been trying to remember things correctly when giving her statement. She did not agree with counsel's suggestion that she had been inaccurate in what she had said to Detective Theriault.
[28] After considering all of these factors, I am satisfied that the proposed evidence is reliable.
[29] I am mindful of the fact that this is not the end of the process. Because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if I am satisfied that both of those two criteria have been met, I still have the discretion to exclude the statement if its prejudicial effect is out of proportion to its probative value.
[30] The potential for prejudice is not as significant in judge alone trials such as this one. I will say more about this later when dealing with the application to introduce evidence of prior discreditable conduct.
[31] On the other hand, the probative value of the proposed evidence is very high.
[32] I am satisfied that, in this case, the probative value of the proposed evidence outweighs any prejudicial effect.
[33] The videotaped statement by Tara Boehmer to Detective Theriault will be admitted for the purpose of proving the truth of its content.
PRIOR DISCREDITABLE CONDUCT
[34] The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v. Handy.
[35] In that decision, Binnie J. wrote:
The starting point ... is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice.
[36] That then requires an assessment of the probative value and the potential prejudice arising from the proposed evidence. I will deal with the latter point first.
[37] With respect to potential prejudice, it is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).
[38] As I stated previously, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice.
[39] I have previously noted that if I was unable to set aside the potential moral prejudice arising out of the similar act evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the proposed similar act evidence. Such is the dilemma facing all judges trying these cases without a jury.
[40] The issue of probative value is more complex.
[41] The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal said in R. v. L.B. that evidence is relevant:
where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.
[42] The evidence is material if it is directed at a matter in issue in the case.
[43] To determine that, I must understand the purpose for which the evidence is being proffered. It is therefore necessary for Crown counsel to identify the issues in question. Then, if I admit the evidence, I will be able to use it in relation to those issues only.
[44] Crown counsel has proposed that the evidence of discreditable conduct be admitted to complete the narrative of Ms. Boehmer's description of her relationship with Mr. Cabral and to explain her failure to report the abuse to the police. Crown counsel cited the Ontario Court of Appeal decision in R. v. D.S.F. as authority for this.
[45] The following six paragraphs are my attempt to summarize some of the relevant parts of that decision.
[46] In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred.
[47] It was important to put the complainant's evidence supporting the charges in the context of the overall relationship. The complainant's evidence was that the allegations underlying the charges were consistent with the attitude and behaviour that the appellant exhibited towards her throughout the one year period that they lived together. The challenged evidence would enable the jury to more fairly evaluate the complainant's evidence regarding the specific allegations. Excluding that evidence would have left the jury with an incomplete and possibly misleading impression of the relationship. The disputed evidence was relevant for the purpose of setting forth the contextual narrative in the course of which the alleged events occurred.
[48] In addition, the discreditable conduct evidence could be relevant to the explanation by the complainant for her failure to leave the relationship and to report the abuse earlier. The complainant was vigorously challenged in cross-examination about the delay in reporting some of the allegations and her delay in leaving the marriage. The complainant's evidence about the pattern of ongoing abuse and her fear of the appellant were important parts of her explanation for her conduct in this regard. The evidence of discreditable conduct was also relevant for this purpose.
[49] The evidence of discreditable conduct was relevant for these purposes and was also clearly material, in that it was directed at the central issue in the case, the credibility of the complainant.
[50] The complainant was the only witness who gave evidence of discreditable conduct. The strength of that evidence obviously depended on the jury's assessment of her credibility. However the evidence, if accepted, was strongly supportive of the Crown's case. It helped to show the animus of the appellant without which the jury may have wondered why, in a seemingly otherwise normal relationship, the appellant would behave as the complainant described. The evidence enabled the jury to understand the relationship and, importantly, strongly supported the complainant's explanation for not leaving or reporting sooner. It therefore related to the central issues in the case. The probative value of this evidence was high.
[51] The probative value of this evidence outweighed its prejudicial effect and the trial judge properly held the evidence to be admissible.
[52] The Ontario Court of Appeal has reached a similar conclusion in a number of decisions since R. v. D.S.F.
[53] I must however keep in mind that it is not enough for Crown counsel to simply propose that the evidence be introduced for one of these previously enumerated purposes.
[54] In R. v. Handy, supra, Binnie J. stressed that the "issues in question" are not categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.
[55] I must therefore consider the proposed evidence.
[56] All of it is contained in the statement that Ms. Boehmer made to Detective Theriault.
[57] There is not much there.
[58] After describing one of the alleged assaults where Mr. Cabral has been charged, she said that he had done it before. She provided little, if any, more detail than that.
[59] She talked about him damaging property when he was angry. She referred specifically to him damaging a camera used by them to monitor their baby. It is clear however that she did not see this happen. She was inferring that he did it and that he may have done it deliberately but again there is a paucity of details.
[60] With respect to Ms. Boehmer's failure to report any of these earlier incidents or the current ones to the police, this is a very different case from R. v. D.S.F.
[61] In that case, the complainant was vigorously challenged in cross-examination about the delay in reporting some of the allegations and her delay in leaving the marriage. The complainant's evidence about the pattern of ongoing abuse and her fear of the appellant were important parts of her explanation for her conduct in this regard.
[62] Here, Ms. Boehmer was not questioned about this at all. It has been raised as an issue only in the submissions by Crown counsel. I also note that, if it was to become an issue, for the reasons set out above, the proposed evidence would do little if anything to help resolve that issue.
[63] I find that the proposed evidence would have little, if any, probative value.
[64] In conclusion, despite the limited prejudicial effect that this evidence would have, I am not satisfied that it is outweighed by its probative value. The application to introduce this prior conduct evidence is dismissed.
Released: February 11, 2015
Signed: "Justice D.A. Harris"