Ruling and Reasons: Res Gestae and Khan/Bradshaw Applications

Ontario Court of Justice

Date: 2017-11-29

Court File No.: Brampton 16-11041

Between:

Her Majesty the Queen

— and —

Mark Lowe

Heard: November 2 and 3, 2017

Released: November 29, 2017

Counsel:

• Ms. C. Hackett, counsel for the Crown
• Mr. T. Mackay, counsel for Mark Lowe

Before: Justice Patrice F. Band

I. Introduction and Issues

[1] Mark Lowe is charged with two counts of assault with a weapon on Ms. Hani Mohamed. It is alleged that he struck Ms. Mohamed in the head with a hammer on July 31, 2016 (the "hammer incident") and that he chased her out of the home while wielding a knife on September 5, 2016 (the "knife incident"). Ms. Mohamed reported both incidents to police on September 5. She placed a 911 call and then gave a sworn, cautioned, videotaped "KGB statement" to police.

[2] In the 911 call, she reported only the knife incident. While she discussed both in the KGB statement, she disclosed the hammer incident reluctantly, and only after prompting by the officer.

[3] Ms. Mohamed did not attend the trial as police had been unable to locate and serve her with a subpoena. For this reason, the Crown sought to introduce the two hearsay statements for the truth of their contents. She argued that the 911 call satisfied the res gestae exception and that the KGB statement met the requirements of the principled exception as recently refined in R. v. Bradshaw.

[4] Defence counsel opposed the Crown's hearsay applications generally. However, the following facts were conceded:

• Mr. Lowe is the person complained of; and
• The 911 call was made on September 5 at 2:38 a.m.

[5] The merits and the applications proceeded in blended fashion; however, I reserved my decisions on the applications and undertook to provide rulings before hearing final argument from the parties.

[6] I have come to the following conclusions:

• The contents of the 911 tape are admissible under the res gestae exception;
• The contents of the KGB statement are inadmissible for failure to satisfy the requirements of the principled exception.

[7] These are my reasons.

II. The 911 Call and Res Gestae

Facts Surrounding the 911 Call

[8] Ms. Mohamed called 911 at 2:38 a.m. from 1 Elmcrest Drive, Brampton. The call lasts approximately five minutes. In it, Ms. Mohamed tells the dispatcher that Mr. Lowe "just pulled a knife" on her and threw her out of the house. She says Mr. Lowe has a brain injury and goes "psycho," believing she is trying to harm him and that she is "hacking" his phone. He does not take medication. He still has the knife and is still at the house. The call ends after she tells the dispatcher that she sees police arriving.

[9] During the call, Ms. Mohamed is crying and panting. At times, she is sobbing. It seems like she has reached a breaking point.

[10] At 2:48 a.m., PC Deanna Van Raalte arrived at 1 Elmcrest Drive, which is on the corner. Another officer was already there, speaking to Mr. Lowe on the porch. He was arrested without incident and PC Van Raalte walked around the corner. She found Ms. Mohamed sitting on the ground with her head down. She was upset. She told PC Van Raalte that Mr. Lowe has a brain injury and that he had come after her with a kitchen knife. The two went back to the house and Ms. Mohamed led PC Van Raalte to the kitchen, where she pointed out a knife in a cutlery drawer.

The Law of Res Gestae

[11] R. v. Nicholas sets out the res gestae test. In that case, the call was made within 10 minutes of the attack and there was no indication of any motive to misrepresent what had happened. The Ontario Court of Appeal wrote:

[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.

Analysis

[12] Ms. Mohamed was clearly in a state of stress during the 911 call. Mr. Lowe had "just pulled a knife" on her. The call was made a short time after the events she was describing. Police arrived within minutes, while she was still speaking to the dispatcher. I am satisfied that the 911 call was spontaneous and made under the ongoing stress of a dramatic event such that the possibility of concoction or distortion can be safely discounted. While perhaps unnecessary to the analysis under this "traditional exception," I note that Ms. Mohamed expresses concern for Mr. Lowe's safety and wellbeing during the call. This manifest goodwill tends to make the danger of fabrication more remote.

[13] The contents of the 911 call are admissible in this trial.

III. The Principled Exception: Khan/Bradshaw

The KGB Statement

[14] Ms. Mohamed's KGB statement began at 4:07 a.m. It is under oath, cautioned and videotaped. She was 36 years old at the time.

[15] In her statement, Ms. Mohamed explains that she has been dating Mr. Lowe for over two years. They live together with his sister and nephew. Early on, she advises that she has a brain injury. She also indicates that she has a concussion. She also indicates that Mr. Lowe has a brain injury.

[16] Ms. Mohamed describes the knife incident first. Later, after some prodding, she describes the hammer incident.

The Knife Incident

[17] Ms. Mohamed describes an incident that occurred that morning, after she came home from the hospital at approximately 1:30 a.m. The dispute started in the bedroom, where Mr. Lowe told accused her of cheating on him and "setting him up." He was "freaking out" and telling her to get out. She tried to reason with him and reassure him. He went downstairs to the kitchen and "started grabbing knives." He then had a knife in his hand and was walking around with it. She ran upstairs to get her things. He followed her. Ultimately, he chased her out with the knife in his hand. She described the knife as having sharp edges "like zig zags" and a white or beige wooden handle "like a steak knife."

[18] She also described Mr. Lowe as "totally not himself. He was "all blacked out" and needs help.

The Hammer Incident

[19] When PC Van Raalte asks Ms. Mohamed about her concussion, she responds "I don't want to talk about it honestly… "cause what happened in the past, happened in the past." She then discloses that on a previous occasion in their bedroom, Mr. Lowe thought there were "guys coming shooting at him." He got a hammer and struck her with it in the head. He also punched her in the head. She guesses that he did so twice. The assault left her "soaked in blood."

[20] She has "no idea" what day it took place. Then, she indicates that it was a Saturday a "week, month, two months ago." Maybe it was the end of June. With further questioning from PC Van Raalte, she agrees that it took place on July 30. When asked about the time of day, she responds "I'm not sure. Like I can't even, I can't even remember the day- that day, so." She believes she blacked out.

[21] She shows PC Van Raalte the place where she had been struck. She also describes the hammer as black with a yellow bottom.

PC Van Raalte's Investigation

[22] PC Van Raalte met with Ms. Mohamed at 1 Elmcrest Dr. There, Ms. Mohamed led her to the kitchen and pointed out one of a set of steak knives in the kitchen drawer. Mr. Lowe's nephew showed PC Van Raalte a hammer in the garage. She seized both. They looked like the knife and hammer that Ms. Mohamed later described.

[23] PC Van Raalte saw stains on the bedroom carpet that looked to her like dried drops of blood. She also saw a dark coloured "smudge" on the staircase wall.

[24] During the KGB statement, PC Van Raalte had no concerns as to Ms. Mohamed's sobriety or mental capacity. She read the caution as she normally does. She did not "follow up" after Ms. Mohamed mentioned her brain injury or have her repeat back the caution because "she seemed very capable of holding a conversation" and providing information.

[25] PC Van Raalte saw a scar on Ms. Mohamed's head. It felt "tender" to her.

Ms. Mohamed's Medical Records

[26] On consent, Ms. Mohamed's medical records from July 4, 2016 were filed. They include an "ambulance call report," a computerized "triage record" and an emergency physician's note. Each of those documents attribute to Ms. Mohamed the claim that a hammer fell on her head. In one document, it says "1 week ago" and in the others "a few weeks ago."

Ms. Mohamed's Criminal Record

[27] On consent, Ms. Mohamed's criminal record was filed. It spans the years 1999 to 2013 and contains numerous entries: almost 20 offences against the administration of justice (including one escape lawful custody); over five CDSA offences, nine assaults (including one assault causing bodily harm and one armed robbery), three weapons offences, property offences and one conviction for "attempt to corruptly take reward for recovery of goods" in 2001.

PC Van Raalte's Efforts to Locate Ms. Mohamed

[28] At the time of the incident, Ms. Mohamed told PC Van Raalte that she was living at 1 Elmcrest Dr. with Mr. Lowe and his sister Pauline. Pauline confirmed this. Ms. Mohamed did not have a cell phone.

[29] On October 4, 2016, PC Van Raalte called Pauline, who told her that Ms. Mohamed had not lived there since the incident. She did not know where she was or how to reach her. Over several months, PC Van Raalte conducted checks using various police databases. No address for Ms. Mohamed came up.

[30] In March 2017, PC Van Raalte tried to reach Ms. Mohamed concerning a new medical consent form, but she was unable to make contact with her.

[31] On September 14, 2017, PC Van Raalte put a flag on a police database indicating that Ms. Mohamed was of "special interest." It explained that she was a victim of domestic violence and that police were concerned about her wellbeing and whereabouts. PC Van Raalte's phone number and email were also provided. Any police officer who "ran" her would see it. This generated no responses despite the fact that PC Van Raalte later learned that the Toronto Police Service an occurrence involving Ms. Mohamed. She was of no fixed address and without any contact numbers. On September 26, 2017, the TPS put out a warrant for her arrest.

[32] In October 2017, PC Van Raalte searched government databases. Since Ms. Mohamed does not have a driver's license, the Ministry of Transportation search was fruitless. A search with ODSP did not generate a residential address; however, it yielded a cell number and an email address. The cell number was not in service and PC Van Raalte received no response to an email she sent.

[33] PC Van Raalte also left a voicemail with Ontario Works. No one responded.

[34] The Victim Witness Assistance Program had no current contact information for Ms. Mohamed. They, too, were trying to find her.

[35] Finally, PC Van Raalte called Pauline again in September. Pauline did not return her call.

The Principled Approach – Legal Principles

[36] To be admissible, the KGB statement must satisfy the dual requirements of necessity and reliability.

[37] Necessity in this context is a flexible criterion that can be satisfied upon proof that the declarant is unavailable. It is amply met in this case. PC Van Raalte's efforts were not only comprehensive and sustained, but they started well in advance of trial.

[38] The real issue is whether Ms. Mohamed's statement meets the test for threshold reliability on a balance of probabilities. This is critical because "untested hearsay evidence may be afforded more weight than it deserves." In criminal trials, the analysis also has a constitutional dimension because such evidence can threaten trial fairness. This is why trial judges play an important gate-keeper function and retain a discretion to exclude evidence even if it meets the requirements of the principled exception.

[39] At the outset, "trial judges must first identify the specific hearsay dangers presented by the statement and consider any means of overcoming them." The dangers relate to difficulties in assessing "the declarant's perception, memory, narration, or sincerity." These "should be defined with precision to permit a realistic evaluation of whether they have been overcome."

[40] Threshold reliability can be established – and hearsay dangers overcome – when procedural or substantive reliability of the statement is demonstrated.

[41] Procedural reliability is concerned with whether adequate substitutes for testing the evidence exist to allow the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. These can include the videotaping of a statement, the presence of an oath and a warning about the consequences of lying. Some form of cross-examination – such as preliminary inquiry testimony or of a recanting witness at trial – is usually required. In KGB, Chief Justice Lamer confirmed that the lack of contemporaneous cross-examination is the most important of the hearsay dangers.

[42] Substantive reliability is concerned with the inherent trustworthiness of the statement. The standard is a high one. The Supreme Court described it as follows:

Where the statement is

• "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process;"
• "made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken;"
• made "under such circumstances that even a skeptical caution would look upon it as trustworthy;"
• "is so reliable that it is 'unlikely to change under cross-examination;'" or
• where "there is no real concern about whether the statement is true or not because of the circumstances under which it came about."

[43] In making this determination, trial judges can consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with it. But the analysis must be focused at the admissibility stage. Substantive reliability is concerned with whether the circumstances and any corroborative evidence provide a rational basis to reject alternative explanations for the statement, other than its maker's truthfulness or accuracy.

[44] The use of corroborative evidence at this stage is directed at determining whether the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant's sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

[45] Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement that the moving party seeks to rely on. Its function is to mitigate the need for cross-examination on that point. To do so, it "must show that the material aspects of the statement are unlikely to change under cross-examination." Put another way, corroborative evidence does so when it "shows that the only likely explanation for the hearsay statement is the declarant's truth about, or the accuracy of, the material aspects of the statement." It is useful if it "eliminates the hypotheses that cause suspicion."

[46] Trial judges must be able to rule out any plausible alternative explanations on a balance of probabilities. In addressing this concern, they "must therefore identify alternative, even speculative, explanations for the hearsay statement."

[47] And, importantly, the proposed corroborative evidence

… must itself be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry. Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence.

[48] When trying to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, trial judges should:

1. Identify the material aspects of the hearsay statement that are tendered for their truth;
2. Identify specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. Based on the circumstances and these dangers, consider alternative, even speculative explanations for the statement;
4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

While procedural and substantive reliability can complement each other in the sense that "factors relevant to one can complement the other," the overall standard remains high. Admission of a hearsay statement based on their combined use should be a rare occurrence. "Great care must be taken to ensure that this combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers."

The 911 Call: "Narrative as Circumstantial Evidence"?

[49] The Crown has invited me to rely on the 911 call in support of the substantive reliability of the portions of the KGB statement relating to the knife incident. In response to my question whether to do so would violate the rule against prior consistent statements, the Crown relied on the Ontario Court of Appeal's recent decision in R. v. Khan, where the Court held that a prior consistent statement can be used "to provide the surrounding circumstances and context to evaluate the credibility and reliability of a witness' in-court testimony." This is referred to as "narrative as circumstantial evidence;" it can allow a more substantive use of what is otherwise admitted as "narrative." In Khan, the Court held that the application of this principle is not limited to the testimony of children.

[50] The question is whether a prior consistent statement can be used in this way in the context of a Khan/Bradshaw application, where there is no in-court testimony. In my view, there is no reason in principle to prohibit such use. If the exception applies to in-court testimony, then it should be available in a proper case to assist in evaluating a hearsay statement where that statement is accompanied by sufficient guarantees of reliability. Perhaps this is why, at para. 33 of Khan, the Court refers explicitly to the "truthfulness and reliability of the declarant" (my emphasis).

Positions of the Parties

[51] The Crown argues that the KGB statement is highly reliable both procedurally and substantively, and that this is also a case where the two can work "in tandem."

[52] Procedurally, it is admissible because it is under oath, cautioned and videotaped. Ms. Mohamed was sober and clear of thought. It flowed freely and naturally, and was given before Ms. Mohamed had time to fabricate it. She displayed no animus towards Mr. Lowe. To the contrary, she exhibited concern for him throughout. The statement was given before Ms. Mohamed could have had time to fabricate it, and contained no important inconsistencies.

[53] Substantively, the statement is corroborated to some extent by the seizure of the knife and hammer. The Crown concedes that as one of a series in a drawer, the knife's value is limited. The hammer is different, since it was pointed out by Mr. Lowe's nephew. The Crown concedes that the smudge on the wall is of limited value; however, she submits that the stains on the bedroom carpet tend to corroborate Ms. Mohamed's statement.

[54] The Crown argues that the medical records, which contain a contradiction about the hammer incident, are less reliable because they were completed by someone else. To that extent, the inconsistency is less detrimental to reliability.

[55] The Crown submits that Ms. Mohamed's criminal record is a relevant consideration, but not a conclusive one. She points to the gap since 2013 and describes it as the record of someone who "likely had a substance abuse issue." Unlike the declarant in Bradshaw, Ms. Mohamed should not be characterized as a Vetrovec witness and has no apparent stake in the proceedings.

[56] The Defence argues that the KGB statement is neither procedurally nor substantively reliable. Procedurally, he argues about Ms. Mohamed's understanding of the oath and caution, owing to her reported brain injury. He also suggests that it contains too many leading questions. Finally, he submits that the lack of ability to cross-examine Ms. Mohamed alone justifies a finding that it is not admissible.

[57] Substantively, the Defence submits that the statement is not inherently trustworthy. He points to areas that call for cross-examination and give rise to alternate explanations other than truth and accuracy: Ms. Mohamed's brain injury, her criminal record, the inconsistencies concerning the number of knives Mr. Lowe handled, the inconsistency with the medical records and the lack of contemporaneity with the hammer incident. What is more, the knife and hammer are neutral and incapable of corroborating the statement. He also submits that being kicked out by Mr. Lowe gave Ms. Mohamed a motive to fabricate.

Analysis

The Hearsay Dangers in This Case

[58] The KGB statement in this case raises concerns as to both its accuracy and truthfulness.

Procedural Reliability

[59] Ms. Mohamed's statement was given on videotape under oath and caution. It is an accurate recording. But these circumstantial guarantees do not provide adequate substitutes for testing it. My concerns rest with the accuracy and truthfulness of her statement. These are based on her actual memory problems, her significant criminal record and the fact that her statement is contradicted by the medical records. (While the last of these can have an impact on procedural reliability, it more properly belongs in the substantive reliability analysis. For this reason, I will address it below, to avoid repetition.)

[60] But to be clear, I do not agree with Defence counsel that the caution was not understood. Immediately after the caution, Ms. Mohamed mentioned her brain injury and its attendant memory problems. This indicates that she understood the consequences of making a false statement, and was concerned that her brain injury be known to police in the event that her statement contained inaccuracies. I also believe that Ms. Mohamed was able to respond to questions. My concerns with her statement are not related to the existence of a brain injury, be it a concussion or other, per se.

[61] Nor am I concerned that Ms. Mohamed had an animus toward Mr. Lowe. To the contrary, she appeared to be concerned for his wellbeing. Likewise, I am not of the view that being kicked out gave her a motive to fabricate. Her apparent goodwill toward Mr. Lowe argues against that interpretation.

[62] Likewise, with one notable exception, I do not find that the statement was unduly leading. Some leading questions arose obviously, given the context and what she had told dispatch and PC Van Raalte at the scene: whether she was "scared" and whether Mr. Lowe "came after her." In other instances, she corrected the officer or chose a more benign interpretation; this showed that she was providing her own responses.

[63] The exchange surrounding the date of the hammer incident had a more profound effect but not simply because it was leading. In some cases, it is appropriate for an officer to tell a witness about various dates on a calendar. In this case, that exchange exposed a larger problem: frailties in Ms. Mohamed's memory. Ms. Mohamed's ability to recall the hammer incident was poor and the surrounding details vague.

[64] Her criminal record is imposing. It contains numerous entries and occupies the better part of her adult years. It gives rise to significant concerns about her honesty and respect for the law.

[65] In this case, only cross-examination could provide a satisfactory basis upon which a trier of fact could rationally evaluate the statement's truth and accuracy.

Substantive Reliability

[66] Ms. Mohamed's KGB statement is not corroborated.

[67] The knife, as one of several in a drawer, is neutral. So is the hammer. In her statement, Ms. Mohamed said that she lived at that residence and that she engaged in landscaping. In those circumstances, her ability to describe the hammer is not surprising, regardless of who led the officer to the garage to seize it. Moreover, it is equally consistent with an accidental injury as described in the medical records.

[68] Assuming the smudge on the wall or the stains on the bedroom carpet are blood, they are consistent with an accidental injury with the hammer.

[69] Ms. Mohamed's statement is contradicted in a material way by the medical records. These provide a completely innocent explanation for the hammer incident. I disagree with the Crown's approach to the medical records. Common sense and experience tell me that the statements attributed to Ms. Mohamed came from Ms. Mohamed.

[70] In these circumstances, the KGB statement cannot be said to be inherently trustworthy. I have concerns about whether the statement is true or not. I cannot conclude that it is so reliable as to be unlikely to change under cross-examination.

[71] As "narrative as circumstantial evidence," the 911 call (which does not refer to the hammer incident) does not compensate for the statement's hearsay dangers or sufficiently enhance my ability to evaluate its credibility and reliability in this case.

[72] It goes without saying that this is not a case in which the two reliability analyses in combination can safely lead me to admit the statement into evidence.

[73] Finally, in coming to this conclusion, I have considered whether to admit only the parts of the statement that relate to the knife incident. However, to do so in this case would be artificial. The concerns with the statement are intertwined.

[74] The KGB statement is inadmissible in this trial.

Released: November 29, 2017

Justice Patrice F. Band