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 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 17, 2018

Court File No.: Halton 17-2473

Between:

Her Majesty the Queen

— and —

ED

Before: Justice D.A. Harris

Heard: May 15 & 16 & June 18, 2018

Reasons for Ruling Released: September 17, 2018

Counsel

David King — counsel for the Crown

H. Kim Taylor — counsel for the accused ED

Reasons for Ruling

Charges

[1] ED is charged with:

1. Assaulting JP in the summer 2014,
2. Assaulting JP in January 2015,
3. Committing mischief to property of JP in April 2015,
4. Sexually assaulting JP in October or November 2015,
5. Threatening JP at the same time,
6. Assaulting JP in December 2015,
7. Assaulting JP in January or February 2016,
8. Entering dwelling house of JP with intent to commit an indictable offence in July 2016,
9. Committing mischief to property of JP in January 2017, and
10. Criminally harassing JP in June and July 2017.

Procedural History

[2] Crown counsel elected to proceed by indictment. ED elected to be tried in the Ontario Court of Justice and pled not guilty.

[3] JP was called as a witness by Crown counsel.

[4] Eventually Crown counsel applied pursuant to section 9(2) of the Canada Evidence Act to cross-examine JP on her prior statement to Halton Regional Police.

[5] Ultimately, I ruled that he could do so.

[6] Following that cross-examination Crown counsel applied to introduce her statement for the purpose of proving the truth of its content.

[7] Laura Serrano, Halton Regional Police Constables Allison Theriault, Samantha Coysh and Dan Pinkey and Detective Sergeant Donna Whittaker testified as Crown witnesses on the application.

[8] No one testified for the defence.

The Problem of Recanting Complainants

[9] I have previously observed that the circumstances present in this case are all too common. One only has to sit in our courts for a short while to learn that after accusing their domestic partners of criminal activity women sometimes recant outright their statements to police or simply forget what happened. They cannot remember being assaulted. It is extremely difficult to know in these cases when the recantation is true, and when it is the result of fear, financial dependence, emotional dependence, or a belief that it is normal and permissible for men to beat their partners.

The Principled Hearsay Exception

[10] Prior to the Supreme Court of Canada decision in R. v. Khan, assaults that were not observed by at least one other witness could not be proven, if the complainant would not testify to the assault in court or at least adopt her earlier statement. There would be no evidence before the court and any charges would be dismissed. In R. v. Khan, the Supreme Court of Canada established a principled case-by-case exception to the hearsay rule based on necessity and reliability, allowing for out-of-court statements to be introduced for the purpose of proving the truth of their content in certain circumstances.

[11] This principled approach has been reviewed several times by the Supreme Court of Canada since then. The following extracts are taken from the reasons given by Justice Charron in R. v. Khelawon:

As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rational underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability ... the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. ... a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.

... In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible ... In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.

Necessity

[12] In this case, counsel for ED conceded that necessity has been established. I agree with this. JP has insisted repeatedly that she has no memory of certain of the events underlying the charges against ED. In other instances she is no longer 100% sure that her original statements were correct and as a result she is not prepared to adopt them. In others still, she has repudiated certain parts of her statement to varying degrees. There were no other witnesses present to observe what, if anything, happened between her and ED. Her statement is the only evidence that the Crown can put forward in the attempt to prove these serious charges against ED.

[13] That does not resolve the issue however. There is still the question of reliability.

Reliability

[14] The statement given to Detective Sergeant Whittaker was recorded although it was only an audio-recording.

[15] She was advised at the outset that it could be used as evidence in court if she became unable or unwilling to testify for whatever reason. She was warned and she acknowledged being warned that it is a criminal offence to obstruct the police or to make a false statement to the police during an investigation.

[16] In doing this, the police took the appropriate steps to comply as best they could with most of the suggestions made by the Supreme Court of Canada in R. v. B.(K.G.).

[17] JP's statement was not made under oath but she was cautioned as to the importance of her telling the truth and as to the possible legal consequences if she did not do so.

[18] She testified that she understood this and that she was attempting to tell the truth when she gave the statement.

[19] As I stated earlier, there is no video recording of her giving her statement but there is an audio recording. Accordingly, there is an accurate record of what was said to her and by her. It is agreed that the quality of the recording is such that I can hear inflections in her tone sufficiently to assess her demeanor to a degree while she was saying those things.

[20] Finally, counsel for ED will have an opportunity to cross-examine JP fully regarding what she said to the police in her statement.

[21] Justice Charron addressed the importance of the opportunity to cross-examine witnesses in R. v. Khelawon, supra and went on to discuss when and how a statement may be introduced even in its absence:

As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make a full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns ... In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little, if anything to the process. In other cases, the evidence may not be so cogent, but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.

[22] The Supreme Court of Canada admitted out-of-court statements in cases where there was no chance for contemporaneous cross-examination but the declarant was available for cross-examination at the trial or at the preliminary hearing and has even admitted out-of-court statements in cases where there was no opportunity for cross-examination of the declarant at any time.

[23] These are all factors which tend to establish the reliability of the statement made by JP to Detective Whittaker.

[24] Further, there was no reason for any memory problem. She was not under the influence of alcohol or drugs when she made the statement, nor was she unduly tired.

[25] Her description of what happened is consistent with other unsworn statements made by her to her friend.

[26] Her story came out without prompting. Detective Whittaker asked almost no leading questions. JP provided considerable uninterrupted narrative which included considerable detail. She often did this in a very matter of fact manner.

[27] There was no reason for JP to make any of this up.

[28] After considering all of these factors, I am satisfied that the proposed evidence is reliable.

Prejudicial Effect vs. Probative Value

[29] I am mindful of the fact that this is not the end of the process. Because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if I am satisfied that both of those two criteria have been met, I still have the discretion to exclude the statement if its prejudicial effect is out of proportion to its probative value.

[30] With respect to potential prejudice, it is necessary to evaluate both moral prejudice and reasoning prejudice.

[31] As I have stated in previous cases, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice.

[32] I have also previously noted that if I was unable to set aside the potential moral prejudice arising out of the proposed evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the evidence. Such is the dilemma facing all judges trying these cases without a jury.

[33] In contrast, the probative value of the proposed evidence is significant.

[34] I am satisfied that, in this case, the probative value of the proposed evidence outweighs any prejudicial effect.

Ruling

[35] The audio-recorded statement by JP to Detective Whittaker will be admitted for the purpose of proving the truth of its content.

Released: September 17, 2018

Signed: Justice D.A. Harris

Footnotes

[1] R. v. Murray, [2008] O.J. No. 4742 (Ont. C.J.) at para 11; affirmed at [2013] O.J. No. 1309 (Ont. C.A.)

[2] R. v. Khan, [1990] 2 S.C.R. 531

[3] R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57 (S.C.C.) per Charron J. at paras 2 and 3.

[4] R. v. B.(K.G.), [1993] 1 S.C.R. 740 at paras. 86 to 104

[5] R. v. Khelawon, supra at paras. 48 and 49.

[6] R. v. B.(K.G.), supra and R. v. U.(F.J.), [1995] 3 S.C.R. 764.

[7] R. v. Hawkins, [1996] 3 S.C.R. 1043

[8] R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915

[9] This dilemma is discussed in R. v. T.B., 2009 ONCA 177, [2009] O.J. No. 751 (Ont. C.A.) at para. 34.