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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice Date: March 27, 2018 Location: Scarborough – Toronto

Parties

Between: Her Majesty the Queen

And: Matthew Reid and Keyshawn Kawano

For the Crown: D. Sgouromitis For Matthew Reid: C. Pearce For Keyshawn Kawano: J. Penman

Ruling

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] The accused are charged with several indictable offences and have elected to be tried in the Superior Court. The preliminary inquiry has begun before me and is ongoing.

[2] The Crown is seeking to introduce into evidence the video statement of a witness named Jason Cotterell who did not testify. The Crown argues that the statement meets the criteria of necessity and threshold reliability so as to be admissible for its truth as an exception to the hearsay rule.

[3] Both defence counsel maintain that neither necessity nor threshold reliability has been made out and that the statement is thus not admissible for its truth.

B. THE LEGAL PRINCIPLES

[4] Hearsay, such as Mr. Cotterell's video statement, is presumptively inadmissible. It can exceptionally be admitted into evidence if it is necessary and sufficiently reliable. R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35.

[5] As concerns necessity, the statement will meet this requirement where direct evidence from the witness is not forthcoming with reasonable effort. R. v. F.(W.J.), [1999] 3 S.C.R. 569.

[6] As concerns reliability, the moving party must convince the trial judge on a balance of probabilities that the proffered statement is sufficiently reliable, on a threshold level. Threshold reliability can arise because the circumstances of the taking of the statement provide adequate substitutes for testing the evidence, or because of the inherent trustworthiness of the statement (substantive reliability).

C. THE LEGAL PRINCIPLES APPLIED TO THE HEARSAY STATEMENT IN ISSUE

(a) The Evidence

[7] On March 19, 2017, Mr. Cotterell came to the police station to report that on the previous day he had been robbed by two black men, one of whom he had arranged to meet in order to sell him some shoes. The police interviewed Mr. Cotterell on video. They did not administer an oath, nor did they warn him of the criminal consequences of not telling them the truth.

[8] Mr. Cotterell told the police that he had parked his car in the visitors' parking lot of 215 Markham Road and waited for the arrival of his customer. When his customer arrived, in the company of another man, he took them to his car where he kept his merchandise. Once all three had got in the car, the man in the front seat pulled out a large revolver and commenced to rob Mr. Cotterell. He also struck him in the forehead with the butt of the gun. Mr. Cotterell managed to fight back and escape from the vehicle. While running away, the gunman fired at him twice. The robbers then stole his car.

[9] Mr. Cotterell provided the police with the phone number of one of the robbers: 647-646-7178.

[10] He admitted to the police that he had been in trouble before for something to do with drugs. He neglected to tell them, however, about a more serious weapons conviction.

[11] On March 18, 2017, shortly after the incident described by Mr. Cotterell, police attended at 215 Markham Road in response to a 911 call reporting gunshots. They found a bullet hole in the outside window of a nearby apartment and a projectile on the floor inside that apartment. That projectile was fired from a revolver found in the possession of the accused, Reid, early in the evening of March 18, 2017.

[12] Police also viewed and seized CCTV video from 215 Markham Road that depicts Mr. Cotterell's encounter with the two men who he said robbed him in his car.

[13] The video strongly corroborates several aspects of Mr. Cotterell's statement to police. It shows him waiting for his customer, entering the car with them and very shortly thereafter, emerging from the car and running away. It also shows one of the men he encountered levelling his arm in the direction of Mr. Cotterell as he ran off, consistent with firing a gun. The video does not depict what occurred in the car, however.

[14] Mr. Cotterell gave police his address and phone number. He lived in a Toronto Community Housing apartment. The police had had possession of his phone since the day before and had successfully contacted some of Cotterell's friends. He also told them that the best way to contact him was over Instagram. He showed police his Instagram account on his phone.

[15] The date for the preliminary inquiry (February 20, 2018) was set in July, 2017. According to Officer Jerry Clarke, who was one of the officers who interviewed Cotterell, a subpoena for Mr. Cotterell was prepared and given to "Court Services" for service on him. Attempts to serve Cotterell were first made in December, 2017. On one occasion the police left a note on the door, and on another occasion they could not get access to the building. Court Services did not notify Officer Clarke of their failure to serve Cotterell until some unspecified date in late January, 2018. Officer Clarke did not himself visit Mr. Cotterell's reported address, although he did check a police data base to see if Cotterell had had any contact with police subsequent to March 19, 2017 and learned that he had not. Clarke also phoned the number Cotterell gave the police but it was out of service. Officer Hewitt, who also interviewed Cotterell, visited Cotterell's apartment building, but not until after the preliminary inquiry had begun.

[16] Despite the close relationship between Toronto Community Housing and the police, the police never contacted them to see if they knew of Cotterell's whereabouts.

[17] No efforts were made to contact any of Cotterell's friends such as the police had done prior to speaking to him in March, 2017.

(b) Analysis

[18] As far as the test for reliability is concerned, Mr. Sgouromitis relies principally on what he argues is the substantive threshold reliability of the statement. He argues that the statement is so strongly corroborated by the video that the only likely explanation for the hearsay statement is Cotterell's truthfulness. Bradshaw, supra at para. 44.

[19] But, as defence points out, the video only depicts what occurred outside Cotterell's car and the critical details of the alleged robbery occurred inside. As such, the material details provided by Cotterell are not corroborated by the video. Given the absence of any procedural guarantees of trustworthiness, and the failure of the video to offer the type of material corroboration required per Bradshaw, Cotterell's statement concerning what happened in the car fails to pass the threshold reliability test for admission. There are many other events, other than those described by Cotterell, which could have occurred in the car.

[20] That having been said, Cotterell's description of events after the robbery, in particular, his flight and the shooting, is strongly corroborated, by both the video and the finding of the projectile in the nearby apartment. That portion of his statement exhibits sufficient substantive reliability to meet the Bradshaw requirements for threshold reliability.

[21] As far as necessity is concerned, I find that the Crown has not satisfied the onus of proof in this regard. I am not satisfied on a balance of probabilities that all reasonable efforts were taken to secure Mr. Cotterell's attendance at the preliminary inquiry. As Ms. Penman put it, the police did not do much more than the bare minimum. They waited until two months before the hearing to begin their efforts, and once it was clear that service "in the normal course" was not successful, paltry efforts were made thereafter. The most likely way to contact Mr. Cotterell was either on Instagram, or through his contacts, which the police had, yet neither avenue was ever pursued.

D. CONCLUSION

[22] In the result, Mr. Cotterell's statement to police given on March 19, 2017 is not admissible.

Released on March 27, 2018

Justice Russell Silverstein