WARNING

The court hearing this matter directs that the following notice 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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.: 14-RM2313

ONTARIO COURT OF JUSTICE

East Region

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

MAKADOR ALI

SABAR BAKAL

FABRICE BATUBENGA

JAMES BELANCE

SHAKID HUSSEIN EGEH

SAAD FARAH

RAMADAN OSMAN

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision: Section 540(7) Application

Released: July 27, 2015

Counsel

Mr. J. Cavanagh and Ms. A. Levans ……………………………………………...for the Crown

Mr. B. Engel and E. Davies ……………………………………………. for the accused, Mr. Ali

Ms. D. Condo ……………………..…………………………………. for the accused, Mr. Bakal

Mr. R. Carew ………………………………………………….... for the accused, Mr. Batubenga

Mr. J. Addelman and M. Frouhar .….………………………………. for the accused, Mr. Egeh

Mr. L. Goldstein …………………..…………………………………. for the accused, Mr. Farah

Mr. A. Brass and Ms. E. Tanny …….……..………………………. for the accused, Mr. Osman

Ms. A. London-Weinstein ……...…..………………………..……. for the accused, Mr. Belance

Paciocco J.

I. Introduction

[1] This is my ruling on a Crown application brought under Criminal Code section 540(7), initiated by notice dated 3 July 2015, relating to the statements of four key witnesses. The targeted statements were filed during the admissibility voir dire as exhibits F (Jessica Walker), exhibit G (Samantha Daoust), exhibit H (Mark Sudiacal) and exhibit I (Jason Klein). The applications are predicated on a Crown undertaking to have each of these witnesses testify, and to be made available for cross-examination. Indeed, prior to the commencement of the voir dire Jessica Walker had already provided 3 ½ days of testimony, and had been cross-examined by all counsel in the context of a KGB voir dire. The Crown has undertaken to recall her for further cross-examination, if this application succeeds.

[2] Section 540(7) provides:

540(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

[3] It is not controversial that section 540(7) was enacted to streamline preliminary inquiries, and to enable the Crown to gain committal without requiring vulnerable witnesses to endure testifying twice (at the trial and preliminary inquiry). It also empowers preliminary inquiry judges to accept credible or trustworthy evidence in lieu of, or in addition to, testimony, in other circumstances where the justice concludes there is sound reason to do so.

[4] Still, the meaning of the provision remains unclear, even after a decade. This is in part because section 540(7) is puzzling in its design. Even though preliminary inquiry judges are generally prohibited from considering whether the evidence before them is credible or trustworthy, section 540(7) requires the preliminary inquiry judge to make a holding about credibility or trustworthiness as a precondition to admissibility. Section 540(7) also shares the language of the standard of admissibility with section 518(e), dealing with bail hearings, despite significant differences between preliminary inquiries and bail decisions. Meanwhile, because section 540(7) requires a determination of "credibility or trustworthiness," the section raises questions about its relationship to the reliability inquiry under the principled hearsay exception.

[5] It is not surprising, therefore, that the provision has inspired different approaches, both as to how the "credibility or trustworthiness" standard is to be satisfied, and precisely what the standard means. I will discuss the approach I am taking to each issue, in turn, beginning with what admissibility standard I am going to apply.

II. Admissibility Standard

[6] The meaning of the term, "credible or trustworthy," has not been authoritatively defined. The bulk of the case law, however, including in this jurisdiction, endorses a formula requiring that to be admissible under section 540(7), information must have a "prima facie air of reliability." In R. v. Francis, [2005] O.J. No. 2864 at para 27 (Ont.S.C.J.), Justice Ratushny commented in a certiorari application that admissibility requires "at least" this much, but it is not clear that she endorsed a "prima facie air of reliability" test as the standard. As I read the decision, she indicated, at para 26, that it was not necessary to try to limit the meaning of the term "credible or trustworthy" because it was obvious on the facts before her that the preliminary inquiry judge acted within their jurisdiction by finding information, affirmed under oath, to be credible or trustworthy. Still, given the pervasive use of the term, "prima facie air of reliability" in the case law, I will be adopting this test.

[7] The term, "prima facie air of reliability," is not familiar in the law of evidence, leaving questions open about precisely what this test entails. The term is an innovated phrase that appears to piggy-back two evidentiary concepts – the "prima facie case," and the "air of reality"- each of which ordinarily addresses issues about the sufficiency of information, rather than its credibility or reliability. The reference to these familiar standards adds little light because, when applied, the prima facie case and air of reality tests each require a judge to assume that the information is true, preventing the judge from passing judgment on credibility and reliability.

[8] Still, the decision to borrow language from legal terms that define threshold standards makes clear that, even though section 540(7) speaks about what the judge "considers," the section does not require, as a condition of admissibility, that the preliminary inquiry judge be personally satisfied that they themselves would credit the information, or act on it as trustworthy. The section should be read as requiring the judge to determine that a "threshold reliability" standard has been met, not an "ultimate reliability" standard. Put less opaquely, the inquiry is into whether there is a basis for finding information credible or trustworthy, and not whether the preliminary inquiry judge is persuaded about its reliability.

[9] Reference in the phrase to a "prima facie air" of reliability also makes clear that the "threshold reliability standard" that applies under section 540(7), is not as high as the "threshold reliability standard" that operates under the principled exception to the hearsay rule. The decision to take this position has been explained on two footings. First, courts have accepted that the standard under section 540(7) must be lower than the principled exception to the hearsay rule because section 540(7) accepts inadmissible evidence, making admissibility standards an inappropriate measure: R. v. Francis, supra at para. 28. Second, given the screening function of a preliminary inquiry and the objective of simplifying the process, requiring compliance with the reliability standard of the hearsay exception is too exacting.

[10] I have elsewhere expressed disagreement with the inevitability and desirability of applying a standard in measuring a threshold for "credibility or trustworthiness" that is lower than the principled exception's threshold reliability standard. I offered several reasons for that disquiet, including that threshold reliability under the principled exception to the hearsay rule has been said to exist where there is "sufficient indicia of reliability to afford a satisfactory basis for [the trier of fact] evaluating the truth of a statement": R. v. Hawkins, [1996] 3 S.C.R. 1043. It is difficult to contemplate that section 540(7) would settle for the admission of evidence that does not afford a satisfactory basis for evaluating the truth of the statement, since a decision to find such information to be "credible or trustworthy," even on a threshold basis, would be arbitrary or capricious.

[11] The obvious accommodation, the one reflected in the tenor of the case law, lies in recognizing that that difference is one of degree, not kind. Both standards require a satisfactory basis for evaluating the truth of the statement, but given the different interests at stake, judges can be less demanding in applying the threshold reliability inquiry under section 540(7) at a preliminary inquiry, than when using the hearsay exception at trial. No precision is offered as to where to draw the line, leaving the matter to judicial discretion. Indeed, even if a judge is of the view that their conception of degree of credibility or trustworthiness has been met, the judge is also given the discretion to refuse to admit the evidence under section 540(7), since the provision creates authority to admit the information, but no obligation to do so.

[12] What the principled hearsay exception reliability inquiry, and the section 540(7) evaluation to see if evidence is "credible or trustworthy" share, is that each necessarily requires an evaluation of the "indicia of reliability" connected to the target evidence. They both deal with the quality of information that may not be subjected to cross-examination, making an evaluation on the face of the evidence indispensable, and there is no other way to conduct that exercise. Guidance can therefore be found in the hearsay decisions, bearing in mind relevant contextual differences, a point I will return to below.

[13] Importantly, under the principled exception, "indicia of reliability" can be measured in two ways. It can be met by indicia providing a threshold indication that the statement is sufficiently reliable or accurate to justify admitting for the trier-of-fact's consideration, or alternatively, it can be satisfied by process-based indicia of reliability that permit the statement to be evaluated, much like in court testimony: R. v. Khelawon 2006 SCC 57, [2006] S.C.J. No. 57 at paras 61-63.

[14] The decision in R. v. Khan, [1990] 2 S.C.R. 531 illustrates the "reliability-based" method. The case involved a spontaneous hearsay statement made by a child to her mother in age-appropriate language, about a sexual experience that the child described, precociously, as having occurred shortly before. That allegation was being made against someone the child had no motive to harm, and her claim was corroborated by a semen/saliva stain on the child's sleeve. Given that the circumstances surrounding the making of the hearsay statement, it would be reasonable for a trier of fact to believe that statement to be true, thereby justifying its reception.

[15] R. v. Hawkins, [1996] 3 S.C.R. 1043 exemplifies the "process-based" indicia of reliability approach. There the statement was sworn, transcribed testimony that a witness had offered in an earlier proceeding, and that had been fully cross-examined upon at the time. These indicia enabled the contents of that statement to be fairly evaluated at the subsequent trial, even without further cross-examination of the witness, making it appropriate to admit.

[16] Although the focus of these two forms of indicia differ, the first focusing on reliability and the second on the opportunity for meaningful evaluation, the two bases are not mutually exclusive: R. v. Devine 2008 SCC 36, [2008] 2 S.C.R. 283 at para 23. In other words, indicia of reliability can overcome deficiencies in the process-based criteria, and vice-versa. For example, in R. v. B.(K.G.), [1993] 1 S.C.R. 740 the court described the optimal circumstances for admitting a prior inconsistent police statement made by a recanting witness as proof of its truth, as including the process-based features that the statement was taken on oath and video and audiotaped, and that the witness is available to be cross-examined at the hearing where the statement is being offered about why the recantation occurred. In addition, there are reliability-based considerations. The witness should ideally have been advised prior to making the statement of the consequences of providing false information to the police, and the party calling the evidence should be required to show, on the balance of probabilities, that the statement was made voluntarily.

[17] The case law dealing with section 540(7) applies each of these two methods for evaluating whether there is a "prima facie air of reliability," an evaluation of the reliability of the statement and of its potential to be fairly evaluated on its face. In R. v. McFadden 2010 BCPC 189, [2010] B.C.J. No. 1676 (B.C.Prov.Ct.), for example, admission was predicated on indicia suggesting the information offered was reliable. In R. v. Vaughn, 2009 BCPC 142, [2009] B.C.J. No. 912 (B.C. Prov.Ct), and R. v. Ireland, 2005 ONCJ 218, [2005] O.J. No. 2680 (Ont.C.J.) the courts used process-based criteria. The use of both methods of analysis is appropriate, in my view, and is suggested by the phrase "credible or trustworthy."

[18] As was observed in R. v. P.(L.M.), [2008] B.C.J. No. 1440 (B.C.Prov.Ct.), these terms are disjunctive, meaning that evidence can be admitted under section 540(7) either because it is "credible" or because it is "trustworthy." I will begin with the term "credible."

[19] I agree with R. v. Lavoie [2015] A.J. No. 177 at 21 (Alta.Prov.Ct), that "credibility" cannot not have the same meaning in section 540(7), as it does generally in the law of evidence, where it is a term that normally relates solely to the resolve of a witness to tell the truth: R. v. Norman (1993), 26 C.R. (4th) 256 at 274 (Ont.C.A.). If concern is with the reliability of evidence, there is no rational basis for interpreting "credible" in a way that disregards considerations of reliability, relating to the ability of an honest witness to give accurate information in light of their opportunity to observe, and their ability to remember and communicate effectively.

[20] By the same token, it is obvious that the term "credible" cannot carry the meaning it is ascribed under section 518(e), as relating to the apparent truth of original in-court testimony, as opposed to hearsay evidence, which is captured in section 518(e) by the term "trustworthy": see R. v. Hajdu (1984), 14 C.C.C.(3d) 563 (Ont.H.C.). Interpreting one of the terms as referring to original evidence and the other to hearsay evidence makes no sense in section 540(7), since section 540(7) presupposes that the subject information need not be presented by witness testimony. It therefore does not need to reference original evidence in the form of in-court testimony.

[21] In my view, the term "credible" necessarily has its normal meaning that it is "believable," based on its realistic potential for accuracy. This term therefore calls for the kind of criteria found in the first branch of Khelawon, namely, indicia showing that, on its face, the evidence is capable of being believed or credited.

[22] Since the term "trustworthy," must be given its own independent meaning, it can be given its ordinary meaning as capturing information that can be trusted. Given the context and purpose of section 540(7), including that the term "credibility" already accounts for evidence that is capable on its face of being believed, the term "trustworthy" refers to information that the presiding judge could trust a trier of fact with, given the potential for that information to be evaluated rationally.

[23] It is evident from analogous principled exception case law that, depending upon which approach is emphasized, the impact of "indicia of unreliability" will vary. Specifically, where the case for admission is based on indications that the information is true and accurate, indicia of "unreliability" can play a central role, and can undermine admissibility: R. v. Smith, [1992] 2 S.C.R. 915. In Smith, the declarant's demonstrated motive to mislead served to undermine a finding of "threshold reliability." In contrast, where the emphasis is on the ability to evaluate the information given the process by which it was obtained, "indicia of unreliability" are less important. In R. v. Hawkins, supra, for example, a statement from a witness was admitted, even though the witness recanted it shortly thereafter, and had a motive to mislead relating to both versions she offered. This statement could be evaluated responsibly because it had been secured as in-court testimony, with all of its trappings including cross-examination.

[24] It is also evident that, even though both exercises involve an examination of indicia of reliability, different factors can have different impact, depending upon whether the evidence is being offered under the hearsay exception, or as preliminary inquiry information under section 540(7). When it comes to the admissibility of hearsay exceptions, for example, "[t]he opportunity to cross-examine is the most powerful factor favouring admissibility": R. v. Couture (2007) 2007 SCC 28, 220 C.C.C. (3d) 289 at para 95 (S.C.C.). This is not so under section 540(7) applications. This is necessarily so because section 540(7) permits preliminary inquiry judges to admit hearsay information in lieu of having the declarant called as a witness. It is clear that the framers did not, therefore, intend to give the opportunity to cross-examine the importance under section 540(7) that it plays under the common law exception. This policy choice is sensible because the function of cross-examination is to enable the proper evaluation of the credibility and reliability of evidence, and when it comes to the ultimate issue in a preliminary inquiry, determining committal, the preliminary inquiry judge is prohibited from passing judgment on credibility or reliability.

[25] To be clear, I am not suggesting that the opportunity to cross-examination is immaterial either under section 540(7) in particular, or at the preliminary inquiry in general. The authority of the preliminary inquiry judge to order a witness to attend for cross-examination under section 540(9), after a section 540(7) order has been made, demonstrates this. Moreover, the Crown may, for tactical reasons, choose to call the witness whose declarations are being offered under section 540(7), as doing so can enhance their application: R. v. McCormick 2005 ONCJ 28, [2005] O.J. No. 390 (Ont.C.J.); R. v. Muzhikov 2005 ONCJ 67, [2005] O.J. No. 866 (Ont.C.J.). Specifically, a promise to make the witness available for cross-examination adds an additional indicium of reliability to the application. Moreover, having the declarant testify can encourage the presiding preliminary inquiry judge to exercise their discretion to admit a witness's information under section 540(7), knowing that doing so will not defeat the discovery function by depriving accused persons relating to what may be key witnesses. The point, therefore, is not that the opportunity to cross-examine is immaterial. It is simply that the opportunity to cross-examine need not be, and should not be, as central an admissibility factor under section 540(7) as it is under the principled hearsay exception. The operative assumption underlying section 540(7) is that even if the opportunity to cross-examine is lost at the preliminary inquiry, that opportunity will be accorded where it matters most, at trial, unless the Crown satisfies a hearsay exception designed.

[26] It follows that, where a witness whose information is being offered for admission under section 540(7) will be testifying either during the section 540(7) application itself, or at the preliminary inquiry at large, the emphasis given to a "meaningful opportunity to cross-examine" that applies under the principled hearsay exception does not have the same vitality. Specifically, it has been held in the hearsay context that where a witness offers testimony inconsistent with their earlier statement, the ability to engage in effective cross-examination can be crucial to admissibility. If a witness claims, for example, to have no memory of the events described in their earlier statement "it becomes difficult if not impossible for the jury to determine whether or how much to rely upon the out-of-court statement": R. v. Carter and Dodd 2012 ONSC 286 at para. 8. At a preliminary inquiry this is not of direct concern because the statement is not being admitted before the trier-of-fact charged with evaluating it. As a result, where a preliminary inquiry judge is faced with an application to receive information under section 540(7) that is inconsistent with testimony the declarant has or is likely to give, the opportunity to engage in meaningful cross-examination to cope with that inconsistency is less urgent under section 540(7) than it is for the hearsay exception.

[27] The lesser impact of a "meaningful opportunity to cross-examine" at a preliminary inquiry makes it possible for judges to make section 540(7) rulings relating to the declarations of a witness a Crown intends to call, before that witness has been cross-examined and the actual quality of that cross-examination can be evaluated. This can be a more efficient way of proceeding where there is reason to suspect that witnesses may be reluctant. If the judge forestalls their section 540(7) ruling to await cross-examination and the witness does resile from their earlier statements, the Crown is apt to resort to time-consuming applications to refresh the witness's memory, to confront or cross-examine them in the hope that they will adopt their earlier statement, or the Crown may bring K.G.B. applications, all of which should be forestalled if the information required to support committal has already been admitted under section 540(7).

[28] Based on the foregoing, I therefore propose to examine the admissibility of the information the Crown seeks to present under section 540(7) by examining whether there is a sufficient basis to enable a reasonable trier of fact to credit the information as true and accurate, or for a judge to trust it as capable of evaluation because of the process by which it was obtained, always bearing in mind that the evidence need not be demonstrably reliable enough to satisfy the principled hearsay exception. I am also prepared to consider the applications before the witnesses who made the statements are presented for cross-examination.

III. Demonstrating Compliance with the Admissibility Standard

[29] How, then, is compliance with this standard to be demonstrated? There appears to be no disagreement in the case law that, applying basic principles of admissibility, the onus is on the Crown to establish admissibility on the balance of probabilities: R. v. Sonier, supra. The disagreement that exists relates to how the Crown discharges that obligation.

[30] I will begin with the non-contentious. Clearly before a judge can determine whether that onus has been met, the target evidence must be presented to the court for review. In bringing a section 540(7) application, the Crown must therefore furnish the trial judge with copies of the information it wishes to have admitted under section 540(7), and given the need for the judge to examine the evidence, this should be done in advance of the preliminary inquiry.

[31] However it is achieved, it is also obvious that:

The party tendering the evidence [under section 540(7)] must provide information about the source, provenance and nature of the hearsay evidence to enable the preliminary inquiry justice to decide whether the evidence is credible or trustworthy: R. v. Canning 2005 ONCJ 144 at para. 24.

[32] This does not mean that formal proof has to be offered in every case. Admissions or supporting documents filed on consent can supply the necessary foundation. There are also cases where the materials sought to be filed speak for themselves. I agree with R. v. McFadden 2010 BCPC 189, [2010] B.C.J. No. 1676 at para 43 (B.C.Prov.Ct.), that there is "no purpose in the requirement that a witness be called to describe the tendered documents if the documents themselves need no explanation or elaboration." In R. v. Francis, supra, Justice Ratushny recognized that it was appropriate for the judge to make a decision without requiring evidence, where the judge "knows" of the circumstances surrounding the making of the statement. Francis involved a video statement to the police that had been transcribed, and a transcript of a prior court proceeding in which the witness swore that the police statement was true where the authenticity of the documents was presumably not contested.

[33] It follows that there is no obligation on the Crown to call witnesses simply so that the defence can challenge the foundation for admissibility through cross-examination. The Crown need concern itself solely with its own requirements for satisfying section 540(7). If the defence opposes the application and wishes to challenge the apparent circumstances, or show that there are undisclosed problems of credibility or trustworthiness, it can initiate such evidence by applying under section 540(9). This is why I did not order the Crown, after a defence request that I do so, to order Cst. Moore to offer testimony about a contentious statement from Ms. Jessica Walker.

[34] It is also obvious that, whatever evidence the Crown may be required to lead in order to discharge this obligation, the Crown is never legally required to prove the foundation for admissibility by calling, during the section 540(7) admissibility voir dire, the witness who made the statement: R. v. Francis, supra. As indicated, the Crown may choose for tactical reasons to do so, but is never obliged to do so.

[35] Issues arose in this case when the Crown signalled its intention not to call any foundational proof to support its section 540(7) applications. The Crown simply wanted to file, and have me consult during the admissibility voir dire, not only the documents it wanted admitted, but also collateral evidence it wished the court to consult in support of admissibility. This collateral proof included statements by civilian witnesses who discovered the injured victim, reports prepared by identification officers, forensic evidence, videotape evidence from an establishment where the accused persons were alleged to have been before the incident, as well as proof of other occasions when the accused persons were associated together. When objection arose to proceeding in this way, the Crown argued generally that the rules of proof that operate during a section 540(7) proceeding should be driven by the underlying objective behind the preliminary inquiry amendments, of streamlining the process. In simple terms, the Crown submission was, in effect, that a section 540(7) proceeding cannot become burdened with the rules of evidence, lest the section 540(7) voir dire become complex and time consuming.

[36] I cannot accept this position. While the Crown is free, as a tactical matter, to lead the kind of evidence it wants in order to set out the necessary foundation and persuade a judge to exercise discretion under section 570(4), the information that is offered must be presented according to law. Speaking generally, the law requires a justice conducting a preliminary inquiry to apply the law of evidence. This applies not only during the hearing, but during admissibility voir dires held within the hearing. The fact that an evidentiary error committed by the judge is not an error of jurisdiction, and therefore cannot be reviewed, does not change the fact that a judge who admits evidence not sanctioned by law is committing an error: R. v. Forsythe (1980), 53 C.C.C.(2d) 225 (S.C.C.); R. v. V.D., [1999] O.J No. 4922 (Ont.C.A.).

[37] While I do accept that the purpose of the relevant provisions can inform their interpretation, there is nothing in the amendments that can fairly be interpreted as ousting the law of evidence during a section 540(7) application. The only express provision that can be interpreted to address how the voir dire is to be conducted is section 540(9), which can be interpreted broadly enough to permit a justice, on the application of a party, to require any person whom the justice considers appropriate to appear for examination or cross-examination during the voir dire.

[38] Nor can the abrogation of the rules of proof be suspended by implication, in spite of the Crown's argument that if the rules of proof are insisted upon the objective of using section 540(7) to stream-line a preliminary would be defeated. In my view, even if this was true, it is for Parliament to correct, and it has not done so. Indeed, section 540(1)(a) was preserved after the amendments. Section 540(7) applications form part of the preliminary inquiry, and section 540(1)(a) affirms the judicial obligation of judges to "take the evidence under oath of the witness called on the part of the prosecution and allow the accused or counsel for the accused to cross-examine." Of consequence, the failure to comply with this provision is a jurisdictional error: R. v. Wilson 1995 NSCA 53, [1995] N.S.J. No. 109 (N.S.C.A.).

[39] Even from a policy perspective, the in terrorem argument that applying the law of evidence would protract and complicate the use of section 540(7), thereby defeating the efficiency objective, is exaggerated. Much of the efficiency contemplated by the legislation can be achieved through the focus hearings provided for, and by securing admissions relating to the foundational information. Even if admissions are not forthcoming, ordinarily, the foundation to meet the generous admissibility standard provided for in section 540(7) can be expeditiously achieved by calling witnesses who can authenticate the target evidence, and provide evidence about the circumstances in which it was obtained. And even where, as here, the Crown feels the need to offer a more complex foundation by relying on confirmatory proof to show the credibility of what a witness says, it cannot be forgotten that section 540(7) provides a generous and exceptional process that can not only save witnesses from having to testify unnecessarily, but can also be relied upon to achieve committals that might not otherwise occur. The effort that complying with the rules of proof in establishing the foundation for section 540(7) admissibility may well be worth the candle, even in those rare cases where the efficiency gains seem questionable.

[40] I cannot agree, therefore, with those decisions that conduct section 540(7) hearings by analogy to bail hearings, based on the inspiration of the shared "credible or trustworthy" formula found in sections 540(7) and section 518(e). Those courts typically permit investigating officers to present all foundational information by reading from the disclosure file. This is fine where, as in the case before me, a number of investigative actions and reports were admitted through the Investigator Officer on consent, but is not appropriate, in my view, absent consent. Indeed, this is so even for actual bail hearings in Ontario. They are conducted as informally as they are on implicit consent. Where there is a dispute about facts, the law in Ontario requires that it be resolved through sworn evidence or affidavit: R. v. West (1972), 9 C.C.C. (2d) 369 (Ont.C.A.); R. v. John [2001] O.J. No. 3396 (Ont.S.C.J.). It is a mistake, in my view, for courts to assume that since bail hearings are typically conducted informally, the term "credible or trustworthy" in section 518(e) permits this as a matter of right, and it is therefore a mistake to mimic these practices under section 540(7).

[41] In any event, the bail hearing analogy is inapt in settling how a section 540(7) hearing should be conducted. When section 540(7) uses the "bail hearing formula" it is not referring to how the section 540(7) hearing is to be conducted. The formula "credible or trustworthy" describes the standard that the evidence sought to be admitted after the hearing must attain to be admitted at the preliminary inquiry. There is an unsettling circularity in assuming that the rules of evidence are suspended during a hearing to determine whether the rules of evidence should be suspended. I therefore agree with R. v. Sonier, supra.

[42] In this case the section 540(7) hearing proceeded informally before me on consent. A number of witness statements, occurrence reports and photographs that the Crown wished to rely upon to supports its application were received this way. Moreover, after defence counsel insisted that the Crown had to set the foundation for admissibility by calling the investigating officer, who would be available to cross-examine, the Crown relinquished without the need for me to rule. Det. Dieu therefore provide much of the foundation, including by referring to investigative action reports and witness statements he did not have personal knowledge about, and many of these were made exhibits. As can be seen from my reasoning above, had defence counsel insisted on it, I would have required the Crown to prove that evidence using witnesses with personal knowledge, or through admissible hearsay, rather than simply by calling the investigator to offer "information and belief" testimony, but given the request made by the defence, this is how we proceeded.

[43] Other evidence was presented formally. In particular, objection was taken when the Crown sought to have Det. Dieu present occurrence reports from police contacts, unconnected to this case, to prove that the accused persons were, prior to the incident in question, associates of one another. The Crown theory is that this information buttresses the identifications contained in the statements sought to be admitted under section 540(7). I ruled in favour of the objection, for the reasons I have expressed, and this testimony was presented by officers having personal knowledge.

IV. Analysis

[44] During submissions all counsel focused on the statements of Jessica Walker, with particular attention to a statement attributed to her that was not video or audiotaped and not signed by her. I did not receive any directed arguments at why I should not admit the statements of Samantha Daoust, Mark Sudiacal and Jason Klein, and immediately admitted these statements under section 540(7), with reasons to follow. These are my reasons for those decisions, as well as my decision on the outstanding question of whether Jessica Walker's statements should be admitted. I will begin with Samantha Daoust.

a. Samantha Daoust

[45] Three video-taped and transcribed statements, now exhibit 9 in the proceedings, were offered by this witness, a statement on November 17, 2013, another on November 22, 2013, and a final interview on March 22, 2014. In my view, these statements are "credible or trustworthy" under section 540(7) and it is appropriate to exercise my discretion to admit them.

[46] Even when applying the principled hearsay exception, the Supreme Court of Canada commented that, "[c]ommon sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence": R. v. Khelawon, supra at para. 63. The statements of Samantha Daoust were taken in a manner that mimics, in important respects, the kind of evidence that is given in court. Each of the statements is audio-taped, ensuring a full record of what was said. They have been video-taped, permitting me Ms. Daoust's demeanour to be considered. In addition, the Crown has undertaken to call Ms. Daoust as a witness in these proceedings so that she can be cross-examined.

[47] Her statements therefore bear many of the hallmarks of a K.G.B. statement. In addition to the points mentioned, there is no reason to doubt the voluntariness of what Ms. Daoust said. On the evidence admitted on consent before me, she presented herself at the police station to report bearing witness to the frightening events that are alleged in this prosecution. She was not coerced in any way into giving interviews. She clearly chose to do so, and there is nothing in the manner in which these interviews were conducted to raise a probability of involuntariness. At no point was she asked inappropriate leading questions.

[48] The only formal K.G.B. factor that is missing is that, inexplicably, she was not sworn, nor was she cautioned about the implications of providing false information during a police investigation. It is important to recognize, however, that even with respect to the principled hearsay exception, the optimal conditions identified in R. v. B(.K.G.), supra, are not formal prerequisites to admissibility. They are factors. Other considerations can substitute for these optimal circumstances, even where the declarant later recants and the hearsay exception is being relied upon. In this case, there are other indicia of reliability supporting the admission of this evidence.

[49] The accounts provided by Ms. Daoust clearly confirm that she was at the location in question. She described a narrative leading up to the events, and a time line, that is entirely consistent with accounts furnished by all others who gave statements about the alleged incident. She described an attack in the early morning hours inside unit 4 of an apartment on Penny Drive, which she identified as belonging to her long-time friend, Jessica Walker. DNA from blood spatters located in the unit whose location she described are consistent with the blood of Afdal Osman, who was discovered the morning after the events she described, severely injured. She described the event, and provided a description of the victim that is not inconsistent with what I know about Mr. Osman's description. She also had details, albeit learned from statements made at the time by others present, that Mr. Osman had been stabbed, and that the attack was related to the stabbing of the brother of one of the assailants. She described a man coming upstairs where she and Mr. Sudiacal and Jason Klein took refuge, much as Mr. Sudiacal and Mr. Klein did, and she attributed comments to the man consistent with those described by Mr. Sudiacal. She said that Ms. Walker cleaned up, and that the house smelled strongly of bleach. When the police arrived, they confirmed that the apartment had been cleaned and smelled of bleach. In her videotaped photo lineup Ms. Daoust described Gino, who she had met on a number of occasions at Ms. Walker's apartment, and she said he was involved. "Gino" is Mr. James Belance's nickname. He was arrested the same day at the alleged crime scene. Ms. Daoust selected his photograph from a photo lineup. She also described Sabar Bakal as having been at the house that night, when she viewed him in a photographic lineup. Mr. Bakal was also arrested at that residence when the police went there, and there is evidence that he had been observed with Mr. Belance prior to the attack at a west end bar. In her initial interview Ms. Daoust claimed that Jessica Walker had hidden the kitchen knife that had been used in her bedroom chest. A kitchen knife was located by Ottawa Police in the chest, as described. In short, Ms. Daoust's account, supported as it is by forensic evidence, confirmed observation and coincidental detail, has important indicia of credibility.

[50] The statements of Ms. Daoust approach, if not attain, admissibility under the principle exception of the hearsay rule. They are certainly "credible or trustworthy" under section 570(4), in that they provide a sufficient basis to enable a trier of fact to credit the information as true and accurate, or to trust it as capable of evaluation because of the process by which it was obtained, bearing in mind that evidence need not be demonstrably reliable enough to meet the principled hearsay exception.

[51] This is also an appropriate case in which to exercise my discretion under section 570(4) to admit the testimony. I can see no reason not to do so, particularly given that the Crown's undertaking to call Ms. Daoust will enable the parties to seek discovery of her evidence, to the extent normally admissible in a preliminary inquiry. I therefore admitted the evidence after the hearing ended.

b. Mark Sudiacal

[52] Mr. Sudiacal also provided three audio and videotaped statements that I have admitted as exhibit 11 in this preliminary inquiry. He gave a statement late on November 17, 2013, hours after Samantha Daoust went to the police station to report the events of the earlier morning hours. He gave a second statement on November 20, 2013, and a third statement during a photo lineup viewing on November 27, 2013. These statements are "credible or trustworthy" under section 540(7), and I have exercised my discretion to admit them.

[53] Once again, the statements provided by Mr. Sudiacal are audio and video-taped, permitting a full record of what is said, and an opportunity to examine his demeanour. Once again the Crown undertook to call Mr. Sudiacal as a witness to be made available for cross-examination, and this in fact occurred after my admissibility ruling, but before the release of this decision. Although Mr. Sudiacal was affirmed only for his second interview, he repeated while "under oath" much of what he said during the earlier and subsequent sessions.

[54] Mr. Sudiacal was pressured to tell the truth when he made his statement. Det. Marc Desjardins did make it clear to Mr. Sudiacal that he had significant information before the interview, and would quickly know if Mr. Sudiacal was holding back or lying. In spite of this, and while Det. Moore did ask a number of leading or suggestive questions, it is clear to me that Mr. Sudiacal's statements were made voluntarily. He chose to speak and say what he did. There are therefore significant process-based indicia of reliability.

[55] On that basis alone I would be inclined to admit, under section 540(7), the statements Mr. Sudiacal provided. Moreover, his statements contain significant confirmatory information. His account meshes comfortably with the versions offered by the other witnesses who claim to have been in the house at the time, and contains similar details, including where they were prior to the event, the approximate time of the incidents, a narrative in which a group of several black men attend, and then a fight involving one victim, being told by Jessica Walker to go upstairs, taking refuge upstairs, hearing the attack going on inside the house after the men re-entered, one of the men coming up to check on them, hearing that a man had been stabbed from Jessica Walker, and describing the smell of bleach in the house as he left the next morning.

[56] For the reasons described in Ms. Daoust's case, I have exercised my discretion to admit Mr. Sudiacal's statements under section 540(7).

c. Jason Klein

[57] Mr. Klein furnished three statements that the Crown sought to admit under section 540(7). The first statement was provided on November 20, 2013, the second, two days later on November 22, 2013, and a January 7, 2014 statement. I have admitted these statements as credible or trustworthy under section 540(7), and they now form exhibit 10 to these proceedings.

[58] All of Mr. Klein's statements were audio and video taped. Once again, the Crown undertook to call Mr. Klein to make him available for cross-examination. The first statement that the Crown sought to present, the November 20, 2013 statement, is the only sworn statement, but it contains the bulk of the information, and the other two statements follow naturally from it. I am satisfied on the record before me that all three statements were given voluntarily. Although Mr. Klein was not cautioned about the implications of providing false information in any of the statements, given the undertaking to call Mr. Klein, there is a significant foundation for their evaluation of his evidence.

[59] I am mindful that Mr. Klein provided a statement on November 17, 2013, that is not as forthcoming as the statements the Crown sought to admit. I am also aware that Mr. Klein testified in the first statement to having been very drunk during the events, and to having learned details from Mr. Sudiacal, the next day, that he could not remember independently. Still, the account offered by Mr. Klein, although less complete than the versions offered by the other witnesses, meshes comfortably with what other witnesses have said, including where he and three target witnesses in this application were before the events on Penny Drive, the time line of events at Penny Drive, including the arrival of a group of black males, a fight outside that continued for a protracted time inside, being told to go upstairs, a male checking on them, and the house being cleaned.

[60] In my view, while Mr. Klein's statements would be unlikely to make the admissibility grade for hearsay evidence, there is a sufficient basis to enable a reasonable trier of fact to credit information provided by Mr. Klein as true and accurate, or for a judge to trust it as capable of evaluation because of the process by which it was obtained.

[61] I am exercising my discretion to admit the statements under section 540(7) for the reasons provided.

d. Jessica Walker

[62] The Crown seeks to tender five statements it attributes to Jessica Walker. Four of those statements were audiotaped and videotaped, including statements made on November 17, 2013, November 20, 2013, November 27, 2013 and March 9, 2014, the latter two being line-up viewing sessions. The Crown is also seeking to admit an off-camera interview that occurred immediately after the taped interview of November 17, 2013, based on the notes of Det. Dieu, who "scribed" what Ms. Walker was saying. The attempt to have the off-camera interview admitted was subject to the most trenchant attacks by defence counsel. For reasons that will become clear, it does stand alone. I will therefore address the taped statements before considering the off camera interview.

i. The Videotaped Statements

[63] As indicated, all four of these statements were audio and videotaped. For the first three, Ms. Walker also swore to tell the truth. There is no evidence before me that Ms. Walker was formally cautioned on any of these occasions about the consequences of providing false information during a police investigation. It may be that the documents she signed upon being sworn contain such a caution, but those documents were not presented as evidence in these proceedings.

[64] Ms. Walker was called as a witness and subjected to cross-examination during the K.G.B. voir dire that was conducted. That cross-examination has some overlap with the substantive evidence the Crown seeks to have admitted under section 540(7). The Crown has also offered to call Ms. Walker for further cross-examination, if the section 540(7) application succeeds.

[65] I received defence submissions that, in considering this application, I should recognize that this or any other opportunity to cross-examine Ms. Walker will be of insufficient quality to permit the proper evaluation of her earlier statements, including the videotaped statements, because Ms. Walker testified at this preliminary hearing that she does not remember what occurred. They rely on authority I refer to above, including R. v. James, supra, and R. v. Carter and Dodd, supra.

[66] In fact, Ms. Walker did not simply claim to have no memory. She purported to remember enough to be able to say that what she told the police was not true, and she provided explanations for why she would lie to the police, including that she felt pressured to make up a story and then felt the need to go with it. In R. v. Carter and Dodd, supra at para.8, Justice Pomerance explained that the concern raised by claims of lost memory in cases of recantation under the K.G.B. rule is that they frustrate the opportunity that applies "in the normal course" of exploring why the witness has resiled from the earlier utterances. In this case, Ms. Walker offered an explanation for her recantation, independently of mere memory loss. This is not a case, therefore, where her claimed memory loss has frustrated the primary matter of interest where a witness refuses to affirm an earlier account. Moreover, I agree with the Crown that the answers secured from Ms. Walker that she lied because of police pressure, and that none of the incriminating details she gave are true, are responses that are about as good as a cross-examiner could hope for. When all of this is combined with the reduced role that the opportunity to cross-examine plays under section 570(4), the quality of the cross-examination that occurred, or that can be expected if Ms. Walker is recalled, is not a significant impediment to admission.

[67] Even if this had been a formal K.G.B. application rather than a section 540(7) hearing, the only remaining issue would relate to the voluntariness of the statements. It was argued by defence counsel that, in this case, Ms. Walker's statements should not be admitted under section 540(7), because they were not voluntary.

[68] The concern that was raised that Ms. Walker was challenged, at times, that she was not telling the truth is secondary. The main focus of concern was that Det. Dieu offered Ms. Walker an inducement to speak. I think it is clear that he did. By the time she was interviewed, the police had circumstantially supported information that Ms. Walker had destroyed evidence by cleaning her apartment after the attack. Ms. Walker was told she was detained because of this, cautioned and advised of her right to silence. She was then advised that she may or may not be charged with a criminal offence, depending upon whether the interview revealed that she destroyed evidence for a "good" or "bad" reason. Simply put, it was communicated to Ms. Walker, in terms she clearly understood, that it was to her advantage to speak to the police officer and offer an innocent version of her involvement. Indeed, this was done in a context where she had expressed concern about losing her son as a result of police involvement.

[69] Apart from some suggestive comments to Ms. Walker about what innocent explanations might be, which were unwise to have offered during the interview, I am not criticizing the police for proceeding in this way. At that time they did not know what Ms. Walker's role was. Moreover, what Det. Dieu told Ms. Walker was true. If she was not implicated in the event and there was an innocent explanation, the police were indeed prepared to treat her as a witness rather than a suspect. Whether the decision to make that inducement was understandable or not, however, is not the issue before me. I have to consider its impact on the "credibility or trustworthiness" of her evidence.

[70] If this was a pure K.G.B. application, rather than a section 540(7) application, the question I would have to ask is whether the Crown has established that, despite this inducement, Ms. Walker's statement was "voluntary" on the balance of probabilities. If it was not, that would likely be fatal to the application, as a finding of involuntariness was in R v. Wisniewski 2005 ONCJ 464. Whether a witness statement was "voluntary," however, is not fatal, on its face, to the section 540(7) application. It is simply a factor, albeit a potentially important factor, to consider in judging the "credibility or trustworthiness" of the statement.

[71] The immediate question is whether this inducement influenced Ms. Walker's decision to speak. I am sure that it did. I am convinced that it not only caused her to speak at the first interview. The subsequent statements derived from this inducement. I make this finding even though Ms. Walker had the confidence at the time of her first interview to retract her consent to search her premises, and even though in subsequent interviews she "called the police out" for texting on her cellphone, and even though, for a time, she became more forthcoming, which she explained out of a desire to protect her son.

[72] What makes me sure that the inducements caused Ms. Walker to speak is my confidence that would have been too afraid to do so otherwise. It is obvious, on the evidence before me, that Ms. Walker was terrified by the events that occurred in her apartment. Her numerous video recorded statements expressing her fear are helpfully précised in exhibit JJ. I have little difficulty accepting these claims of fear, given what happened to Mr. Said at Ms. Walker's residence.

[73] The issue before me, however, is not whether I am being offered induced statements. It is whether I consider the statements Ms. Walker made to be "credible or trustworthy." Ironically, the same fear that the inducement was needed to overcome logically enhances the credibility of the incriminating information that Ms. Walker provides, in stages. I agree with the Crown that it is an available inference, and in my view a formidable one, that Ms. Walker would not lightly provide incriminating evidence about accused individuals, who other evidence shows were directly or indirectly connected to her. Simply put, I do not believe that the inducement caused Ms. Walker to give incredible or untrustworthy incriminating evidence.

[74] In sum, Ms. Walker's videotaped statements are rich in most of the key factors that would support admissibility in a K.G.B. application. The statements being offered are therefore trustworthy.

[75] There are also indicia of reliability found in Ms. Walker's statements, when they are read together. The core of her narrative meshes with what the other witnesses claim, even though she had no opportunity to consult with those witnesses after Ms. Daoust went to the police. Ms. Walker's account of what happened in the first statement is consistent with information and the time line furnished by the others. She offers the same general scenario as the other witnesses who claimed to have hid upstairs during the assault. Her description of what was done to Mr. Said, even though offered by her as information she heard, is generally consistent with the injuries Mr. Said sustained. Her description of using bleach to clean up is supported by the observations of other witnesses. These indicia of reliability support the admission of Ms. Walker's statements.

[76] At the same time, however, there are significant contradictions between other evidence and Ms. Walker's statements, which counsel caution in receiving her statements, including her claim that she did not know her childhood friend Samantha Daoust's surname, that she hid upstairs with her friends throughout the event, and that she did not know whether the attackers had used any of her knives. I am also mindful, of course, that Ms. Walker retracted the statements during her testimony, and said the oath she gave when interviewed did not mean anything to her.

[77] On balance, primarily in light of the process-based indicia that permit the statements of Ms. Walker to be evaluated meaningfully, I am satisfied that Ms. Walker's video statements are trustworthy, in the sense I have described, bearing in mind that the evidence need not be demonstrably reliable enough to satisfy the principled hearsay exception to gain admission under section 540(7).

[78] I am also persuaded to exercise my discretion to admit Ms. Walker's video statements. I am making this decision notwithstanding that these statements were, in my view, induced. There is enough before me to suggest that, in her preliminary inquiry testimony, Ms. Walker was attempting to hold the truth captive. It is in the interests of justice to include the incriminating information she offers during the videotaped interviews in determining whether there is a prima facie case.

ii. The "Off Camera" Statement

[79] Most of the effort during submissions related to the "off camera" statements attributed to Ms. Walker after the close of the November 17, 2013 videotaped interview. Specifically, in an effort to get this statement before me, the Crown made formal application for the admission of "the notebook statement as recorded by Detective Dieu of Jessica Walker." It is acknowledged that this notebook does not capture a verbatim record of what Ms. Walker said. The best way to put it is that it contains jottings of what Det. Dieu interpreted Ms. Walker to be saying. He testified that, while he undertook the role of scribe during the post-video interview, he could not keep up. It became clear, early in the presentation of the application, that the Crown wished to rely not so much on Detective Dieu's notebook notes per se, but on the notes as interpreted by Detective Dieu in the testimony he gave during the section 540(7) hearing.

[80] Essentially, two kinds of argument were advanced in opposition to the Crown application, first, that the statements are not "made by a witness in writing or otherwise recorded" within the meaning of section 540(7) and therefore do not fall within the provision, and alternatively, that even if the section does not preclude the admission of this kind of evidence, the off camera statements offered to the Court do not make the "credible or trustworthy" grade.

[81] With respect to the first argument, it has indeed been held that a summary of what a witness is claimed to have said, captured in police notes, is not a "statement" within the meaning of section 540(7). In Justice Dobney's words in R. v. McCormick 2005 ONCJ 28, [2005] O.J. No. 390 at para. 19 (Ont.C.J.):

In my view, any statement a party seeks to tender under this section must be a statement of that witness himself or herself. The section provides an evidentiary short cut, to obviate the need of a witness to testify, by the production of his or her evidence in another form. I do not accept that this shortcut can be satisfied one step removed, by the hearsay evidence of another party of what they think is the evidence that the witness would give.

[82] The Crown argues that this cannot be a correct statement of law. To support that argument the Crown demonstrated that even confessions by accused persons can be admitted, when summarized in an officer's notes (R. v. Menezes, [2001] O.J. No. 3758 (Ont.S.C.J.), as can a statement offered under a hearsay exception (R. v. Cyr [2007] J.Q.No. 1144 (Que.C.A); R. v. Brake [2014] O.J. No. 3090 (Ont.C.J.); R. v. Murphy [2012] O.J. No. 5680 (Ont.C.J.); R. v. Manuel [2013] O.J. No. 1933 (Ont.S.C.J.)). He urged that since section 540(7) provides a less demanding path to admissibility than hearsay rules, it necessarily follows that statements summarized in an officer's notes can be admitted under that provision.

[83] The problem with the Crown argument is that it does not respond to the contention that section 540(7) is a legislated provision that specifically describes "a statement that is made by a witness in writing or otherwise recorded." Admissibility is therefore a matter of construction, not simple comparison.

[84] On the other hand, the interpretation offered by the defence and in the McCormick decision is not inevitable. It is clear that evidence can be admissible under section 540(7), even if it is not "a statement that is made by a witness in writing or otherwise recorded." This is so because this phrase is introduced in the legislation by the word "including." Moreover, section 540(7) does not use the language that Parliament has employed in the past to distinguish between fully and partially transcribed statements, found in the Canada Evidence Act, namely "oral statements" and "statements reduced to writing." It may be that a non-verbatim oral statement recorded in an officer's notes is "otherwise recorded" for the purposes of section 540(7), even though it would not be a statement "reduced to writing," under the Canada Evidence Act.

[85] What cannot be contested, even if incomplete recording is not an ab initio bar on admissibility under section 540(7), is that the state of a record is an appropriate and potentially important consideration in determining whether a "statement" is "credible or trustworthy": R. v. Ta 2009 ONCJ 449, and by implication, R. v. Wisniewski, supra. This is because before a statement can reasonably be credited or trusted, it must be possible to place a degree of confidence that what is being offered for reliance was in fact said. In this case, because of the nature of the notes recorded I can have little confidence that what Cst. Dieu recorded and testified to, is what Ms. Walker actually said. In my view, the words spoken by Justice Cory in R. v. B.(K.G.), supra at para 181, describing the least impressive "record" that can be offered – the one "at the end of the continuum" that "would be difficult to admit" – apply here. What is being offered to the Court is "a … statement contained in the hurried notes of a single police officer who was paraphrasing the words the witness [was] speaking to him in hectic and difficult circumstances." Worse, what is being offered is a surprisingly brief catalogue of incomplete jottings of incomplete sentences from a prolonged interview, that do not even attempt to record the questions asked, and that the scribe officer himself had difficulty interpreting, both when he prepared his Investigative Action and during his testimony.

[86] I agree, for example, with counsel for Mr. Belance that the ominous first line in the notes, "Gino, Big Man, Soo Woo - stabbed vic--," is inscrutable. Officer Dieu could not offer reliable evidence about precisely what was said, or what questions prompted this entry. The manner of recording poses more questions than it answers on crucial matters.

[87] Det. Dieu's Investigative Action summary demonstrates, in my view, that Officer Dieu made his records based on his impressions of what was said, rather than recording precise words that were spoken. This is evident because his investigative action summary of the conversation is different in several respects than the notes being offered in evidence. What is recorded as "car" in the notes becomes "cars" in the investigative action. "Frenchy – has a gun (black – kitchen) pointed @ vic," became "putting a gun to the head." "[H]eld him against the van (burgundy in P lot – neighbour van)," became a white van. And most troubling, "Lucky was skinny everywhere," became "Skinny but a pot belly" in the Investigative Action. It is disconcerting that this while the notes made at the time of the conversation with Ms. Walker do not include the pot belly, Ms. Daoust referred to one of the subjects having a pot belly, in an earlier interview. I cannot set aside the risk that Det. Dieu may have melded information he heard, with what he was attributing to Ms. Walker.

[88] The Crown urges, that in spite of this, there are sufficient indicia of reliability to confirm the "credibility or trustworthiness" of the statement.

[89] Certainly, there is little that can be said about its "trustworthiness" in the sense I understand the term. The closest the proposed evidence comes to supplying substitutes for the usual process-based trappings of testimony, apart from the opportunity to cross-examine Ms. Walker, is that Ms. Walker had sworn to tell the truth in the terminated video interview that preceded this off-camera statement. I reject the suggestion that I can borrow Ms. Walker's demeanour from the prior video, and transplant it to the off-camera statement.

[90] The Crown argues that the notes of the statement are nonetheless "credible" because much of what is contained in Det. Dieu's notes is supported by other evidence, and confirmed by Ms. Walker in her other statements. It is true that Ms. Walker does, indeed, ask at one point in a later interview whether she is being asked questions like the ones asked off camera because she was not video-taped at the time, and she does provide much of the same information that is alluded to in the snippets of information contained in the notes. The problem with inferring that the information in the jottings is confirmed by other evidence is that it requires acceptance that the jottings, and, in some cases, the interpretation by Det. Dieu of the jottings, are accurate. In my view, the confirmation that does exist does not overcome the impossibly poor record presented by the notes, and by Cst. Dieu's testimony about what they say.

[91] In coming to this ruling I have not factored in criticisms of the investigative decisions made by Det. Dieu. I understand why Det. Dieu resorted to an off camera interview with a clearly reluctant witness, and I offer no criticism of his decision. Nor is it material to the issues I am deciding that the police did not take the opportunity to have Ms. Walker confirm the statement on camera, or at least have her initial the pages. I agree with the Crown that the admissibility of the statement turns on the quality of the record, not the appropriateness of the investigative decisions made. Still, even if the decision to take the statement off camera was a laudable one, the product is what it is, and it falls far below the standard of "credible or trustworthy" information. I will not admit it under section 540(7).

V. Conclusion

[92] For the reasons expressed, I admitted after the hearing the statements offered for Samantha Daoust, Mark Sudiacal, and Jason Klein. I am ordering, with this ruling, the admission of the videotaped statements made by Jessica Walker, and excluding the statements attributed to her as recorded in the notes of Det. Dieu.

Dated this 27th day of July 2015

Justice David M. Paciocco