Ontario Court of Justice
Date: 2019-07-18
Court File No.: Toronto, College Park 4817-998-16-75002902-00
Between:
Her Majesty the Queen
— AND —
Steven Trotman
Before: Justice J.W. Bovard
Heard on: May 13; June 11, 2019
Reasons for Ruling on three voir dires (witness statements) released on: July 18, 2019
Counsel
Mr. M. Friedman — counsel for the Crown
Ms. G. Ighokwe — counsel for the defendant Steven Trotman
Reasons for Ruling
Bovard J.:
[1] Charges Against the Accused
[1] The police charged Mr. Steven Trotman with the following four offences against Mr. David Banfield. All of the offences allegedly occurred on June 28, 2016, in Toronto.
- Aggravated assault;
- Assault with a weapon (knife);
- Carry a weapon (knife) for a purpose dangerous to the public peace;
- Utter death threat.
[2] Overview of the Voir Dires
[2] Three witnesses: Mr. Aaron Downs, Mr. Salvatore Graziano, and Ms. Idil Farah gave statements to the police about the incident. However, they were not available to testify. The defence brought applications for orders that their statements be accepted as evidence for the truth of their contents.
[3] The court held a voir dire with regard to each witness' statement. These are the court's reasons for its rulings on the three voir dires. Counsel agreed that the evidence on the trial proper apply to the voir dires and vice versa.
Issues
[4] The issue with regard to each of the statements is whether the defence proved on a balance of probabilities that they meet the twin tests of necessity and reliability.
Dispositions
[5] For the reasons stated below I grant the defence application with regard to Mr. Downs.
[6] I deny the defence applications with regard to Mr. Graziano and Ms. Farah.
Introduction
[7] There are a lot of persons involved in these three voir dires. Therefore, in order to minimize the inconvenience of having to flip around in the ruling to remember who is who, I will refer to Mr. Trotman as the accused, and Mr. Banfield as the complainant.
[8] The accused and the complainant knew each other as acquaintances. At first, they got along with each other, but they soon had a falling out. The situation between them deteriorated to the point that on the day in question, they got into a fight on the sidewalk in front of a municipal park in the east end of Toronto. The Crown alleges that during the fight the accused committed all of the offences by slitting the complainant's throat with a knife.
[9] There were many persons in the park. Some knew the accused and the complainant, some did not. When the police arrived to investigate, they interviewed the three witnesses whose statements are the subjects of the voir dires.
The Voir Dire Regarding Mr. Aaron Downs' Statement
[10] Officer Bower arrived at the scene and spoke to various persons who said that they were witnesses. He did not remember how he became aware that Mr. Downs was a witness and that he wanted to give a statement. He said that either Mr. Downs approached him, or other officers at the scene told him that he was a potential witness.
[11] The officer videotaped Mr. Downs' statement in his cruiser. Prior to taking the statement there was "A brief exchange" between Officer Bower and Mr. Downs regarding Mr. Downs' name, date of birth, address, telephone number, and what type of questions the officer would be asking him during the interview. Officer Bower also explained to Mr. Downs that he was taking his statement in the cruiser with the doors closed in order to keep out the noise from outside.
[12] Officer Bower did not recall if Mr. Downs said anything before the videotaping started, other than a brief conversation about the preliminary information that he gave him regarding giving his statement. For example, "He may have asked a couple of questions about what he might be expected to experience in the car, and I told him that he would just be in there giving a statement, which is telling his story as to what happened, what he saw, and what he experienced". [1]
[13] Officer Bower did not give Mr. Downs any "warnings or cautions" prior to taking the statement.
[14] The officer noted that Mr. Downs "did not appear to be intoxicated in any way or under the influence of any drugs or alcohol".
[15] In addition to recording the statement on videotape, Officer Bower made short form notes in his memo book.
[16] Defence counsel states in paragraph 7 of her application that the "material parts of [Mr. Downs'] statement" include the following account of the fight between the complainant and the accused:
The white guy [the complainant] was trying to fight with the black guy [the accused]. The complainant assaulted him, hit him in face, knocked him down, and kept trying to hurt him by kicking and swinging at him.
The accused jumped up and stabbed the complainant in self-defence.
The accused did not want to fight, he was backing up. The complainant was screaming and hollering. The complainant hit him and knocked him down. The accused was trying to get up. When he finally got up he stabbed him in self-defence.
The white guy was drunk. The accused was not.
Mr. Downs was at the window of his apartment across the street when the fight started to develop. He watched it develop. The complainant was going crazy. He was screaming, calling him [the N word], this that and the other so he looked out. It broke out into a fight.
Mr. Downs said that he had a good view of the events. He was looking down on the scene from his window across the street when the incident started to develop. He was not sure how high up he was.
[17] In addition to these things, I add the following from my review of the videotape.
Mr. Downs was not positive, but he thinks that the accused took the knife from his knapsack.
He described the accused as medium build and about 6 feet tall. He could not remember what he was wearing.
[18] Mr. Downs has a criminal record that starts in 1990 and ends in 2009. He has many convictions for assault and failing to obey court orders. He also has convictions for failing to provide a breath sample, simple possession of drugs, and trafficking in a schedule one substance.
[19] In addition, he has convictions for crimes of dishonesty:
June 15, 1992 – attempted theft under $1000; attempt to obstruct justice; theft under $1000; acknowledge bail in a false name;
August 21, 1996 – theft under $5000;
May 5, 2004 – theft under $5000;
November 17, 2005 – theft under $5000;
September 13, 2005 – theft under $5000;
November 5, 2007 – obstruct peace officer.
The Voir Dire Regarding Idil Farah's Statement
[20] Officer Karpuc was one of the officers that arrived on scene to investigate the incident. He spoke to Ms. Farah. She told him that:
she saw a white male punch a black male, who then fell to the floor and that the black male then got up with a knife and slashed the white male in the neck. [2]
[21] He recorded her words in his note book. He described it as a "brief recollection of what she saw". Ms. Farah did not sign the statement. She was not under oath. No warnings were given to her about telling the truth. Officer Karpuc said "It was, like I said, it was quite chaotic when I showed up. She was the first one I spoke to, and I got a bit of a story. I got her contact info and I moved onto further witnesses". Officer Karpuc said that "As far as I recall that's what she told me".
[22] He did not make any observations about her sobriety, nor did he have an independent recollection of her sobriety. The most that he could say was that had he had any question about her sobriety he would have made a note of it, which he did not.
The Voir Dire Regarding Salvatore Graziano's Statement
[23] Officer Karpuc also testified with regard to Mr. Graziano's statement. During his canvas for witnesses he met Mr. Graziano who seemed to have a lot of information regarding the incident. He took a videotaped statement in his cruiser.
[24] Officer Karpuc did not recall if he gave Mr. Graziano any warnings or cautions prior to him giving his statement.
[25] Officer Karpuc did not make any notes about Mr. Graziano's sobriety. Therefore, he concludes that there was no issue in this regard.
[26] At the beginning of the videotape Mr. Graziano is seen speaking, but the audio recorder was not on. Officer Karpuc said that if what he was saying had anything to do with his statement he would have told him to stop until the audio recording came on. He said that they were "probably just continuing our earlier conversation". I interpret this as meaning their earlier conversation leading up to the giving of the statement:
Q. And did you ask him any questions before taking the statement on camera?
A. I would – I would have asked him what had happened and he would have given me an idea of what he was about to tell me on the statement, which was indicating that he knew that two people were involved. But, the primary questions were asked during the video statement, in detail. [3]
[27] In paragraph seven of the defence application, defence counsel sets out the "material parts" of Mr. Graziano's statement along with the timestamp reference to the videotape.
20:20:23 – Didn't see any stabbing, what do know is both parties had altercation before in their own house, and I was trying to bring them together.
20:20:37 – I even got white guy [the complainant] to go to black guy's [the accused] door, black guy came up and had a beer with me, this is after the white guy had many beers with me.
20:20:49 – On our way out the white guy accosted the black guy and next thing you know altercation ensued. I tried to stand in between the two but clearly this was not working and I left.
20:20:09 – When I asked them not to fight in my house or any other house around me I meant it and they didn't listen.
20:21:21 – In the end something happened that I did not see because my back was turned. But these guys have had a problem in their own house beforehand that I was not there for, and the white guy has a scar from the black eye and that's why they … I shouldn't have brought (sic)
20:22:06 – Known Dave [the complainant] and Steve [the accused] for about a year.
20:24:01 – Today I got Dave drunk, we drank a case of beer together, and then got Steve and drank beer with Steve. They (Dave and Steve) weren't together when this happened.
20:24:27 – Dave drank a case with me, we went to beer store, and came on the way back, picked up Steve, Steve came to my house, Dave split off. We were trying to do the makeup thing. But then when we got out of building Dave started to cuss Steve.
20:25:17 – Steve came up for a drink. Dave stayed at his place. Dave had his back pack at my place.
20:25:35 – Wen we came out that's when Dave, Dave was right outside in front of building, and then it just escalated.
20:25:52 – I tried to stand in between the two, and say sort it out, but it was not working out. Me saying this is not working at all, you guys are not listening to me at all I'm going to walk away.
20:27:30 – Saw Steve earlier with the knife, he said he was trying to protect himself from Dave I said put it away.
20:27:49 – when Dave accosted him shit happened.
20:27:01 – It was a big kitchen knife, silver and black, black handle, about 12 inches with the handle, didn't see if blade smooth or serrated nor did I want to. I told him to put it away.
20:28:26 – told these guys to calm down but Dave was being aggressive.
20:28:37 – Steve had knife when came for bee (sic). [I interpret "bee" as meaning beer.]
20:29:00 – Had knife in his back pocket. It's all on camera anyhow, 841 is all on camera, it was in his back pocket, it was sticking out, that's why I said it's on camera.
20:29:40 – Dave had a white shirt he was throwing his shirt at Steve. That's when I said common (sic) guys [I interpret, "common" as meaning, come on], if you're not listening I'm walking away, I want nothing to do with it.
20:30:40 – I had enough, I was trying to bring the two guys together.
20:30:50 – Clearly from what I saw white guy was aggressor, I walked away because I'm not going to get involved.
[28] In addition to these segments, when I viewed the statement again in chambers I saw Mr. Graziano add to his comment listed above at 20:21:21, that in their previous altercation in their own house the accused bit the complainant. However, Mr. Graziano did not know when it occurred.
[29] The second additional thing that I noticed was that Mr. Graziano said that he tried to bring the accused and the complainant together to resolve their differences, but the accused told him that it was not a negotiable matter.
[30] Mr. Graziano has a criminal record that started in 1978 and ends in 2018. He has convictions for simple possession of drugs, trafficking in drugs, failing to obey court orders, uttering threats, and assault. His convictions for crimes of dishonesty are the following:
November 7, 1978 – theft under $200;
February 2, 1982 – theft under $200;
June 28, 1983 – personation with intent.
Analysis
The Law
[31] The three statements in issue are hearsay, which is presumptively inadmissible.
[32] In R. v. Bradshaw the Supreme Court explained the issue with accepting hearsay statements:
Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740 (S.C.C.), at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520 (S.C.C.):
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.]
[33] However, hearsay statements are admissible if they satisfy the principled exception to the hearsay rule, which requires that they be necessary and that they meet the test of threshold reliability.
[34] The defence seeks the admission of all three statements for the truth of their contents. Therefore, she has the onus on a balance of probabilities to show that they are necessary and reliable. [5]
[35] The Crown in the case at bar concedes necessity for all three statements. Therefore, I will focus on the law regarding reliability.
[36] Regarding reliability, Khelawon stated:
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. … 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. [6]
[37] In the voir dire the trial judge must differentiate between "threshold reliability" and "ultimate reliability".
the trial judge only decides whether hearsay evidence is admissible. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. … If the judge sits without a jury, it is … important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between "ultimate reliability" and "threshold reliability". Only the latter is inquired into on the admissibility voir dire. [7]
[38] In Bradshaw, Justice Karakatsanis held that "Under the principled exception, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and threshold reliability are met on a balance of probabilities …" [8]
[39] In paragraph 26, Justice Karakatsanis held that:
"To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay 'is sufficiently reliable to overcome the dangers arising from the difficulty of testing it …' (emphasis in original)"
Hearsay dangers "arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact ..."
"In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them …"
"The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome".
[40] Justice Karakatsanis said that "The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) …" [9]
Procedural Reliability
[41] Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" ... These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement …" [10]
[42] Regarding substitutes for the "traditional safeguards", Justice Karakatsanis stated that they would include "a video recording of the statement, the presence of an oath, and a warning about the consequences of lying". But she states that "some form of cross-examination … is usually required". [11]
Substantive Reliability
[43] Bradshaw held that substantive reliability "does not require that reliability be established with absolute certainty". The trial judge "must be satisfied that the statement is 'so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process …'" [12]
[44] Substantive reliability is established when,
… the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" (Smith, at p. 933);
"under such circumstances that even a sceptical caution would look upon it as trustworthy" (Khelawon, at para. 62, citing Wigmore, at p. 154);
when the statement is so reliable that it is "unlikely to change under cross-examination" (Khelawon, at para. 107; Smith, at p. 937);
when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" (Khelawon, at para. 62);
when the only likely explanation is that the statement is true (U. (F.J.), at para. 40). [13]
[45] Justice Karakatsanis said that "Procedural reliability and substantive reliability are not mutually exclusive … and 'factors relevant to one can complement the other' …" [14]
[46] In R. v. Adjei the declarant's statement had been videotaped. The Ontario Court of Appeal said that this resulted in:
the several indicia of credibility and reliability available to the judge as a trier of fact where a witness testifies at trial were available equally in connection with the out-of-court statement. The reproduction of the statement and the video recording eliminated the danger of inaccurate recounting, an important factor underlying the rule excluding hearsay evidence. [16]
[47] In Adjei the declarant testified in the trial, thereby giving counsel an opportunity to cross-examine him. This opportunity is not available in the case at bar. The court stated that:
The availability of the declarant for cross-examination goes a long way to satisfy the requirement of adequate substitutes for establishing threshold reliability: Khelawon, at para. 66. Availability of the non-accused witness for cross-examination is the most important factor supporting the admissibility of a prior inconsistent statement of that witness for the truth of its contents: (emphasis added)
[48] In R. v. Blackman the court dealt with a case in which the giver of the hearsay statement was not available for cross-examination, as is the situation in the case before me. Justice Charron held that in this situation:
… the trial judge's role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of the case to justify receiving the evidence. This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive.
[49] Regarding the lack of an oath and a warning about the importance of telling the truth, Adjei held that "the absence of an oath and warning is not fatal to the admissibility of the out-of-court statement" (emphasis in original). [18] However, there must be other circumstances that are "sufficient to impress upon the witness the importance of telling the truth". [19]
[50] With regard to using corroborative evidence to assess threshold reliability, R. v. Bradshaw [20] held that:
… corroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsay dangers presented by the statement. These dangers may be overcome on the basis of corroborative evidence if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. The material aspects are those relied on by the moving party for the truth of the contents.
[51] Concerning a declarant's statement jibing with another's statement, in Adjei [21], the court found that the fact that the declarant's statement was consistent with "the contents of Clifford Adjei's 911 call of which [the declarant] could have had no knowledge when he gave his statement" counted positively for the statement's threshold reliability.
[52] In R. v. Hankey, [22] A. de L. Panet J., isolated the following factors that are important in considering the threshold reliability of hearsay evidence:
Is the declarant an interested party in the case?
Does the declarant have a motive to lie?
Does the declarant have a capacity for deceit?
Is the timing of the giving of the hearsay statement a factor?
Did the person that took the statement prompt the declarant to say anything in particular?
Dispositions
The Statement of Aaron Downs
[53] In court, I saw the videotaped statement that Mr. Downs gave. I also reviewed it in my chambers.
[54] Officer Bower did not suggest answers or information to Mr. Downs. He started the interview by simply asking Mr. Downs "What happened?" Throughout the interview he acted as a neutral recipient of Mr. Downs' information.
[55] Officer Bower told Mr. Downs that he was being videotaped. Mr. Downs consented to this. The officer told him that he was not in trouble. He could get out of the cruiser anytime that he wanted. Mr. Downs acknowledged this.
[56] Officer Bower did not warn Mr. Downs about not lying, or about the consequences of lying. Nor was Mr. Downs under oath or solemn affirmation to tell the truth. But it was clear that he realized that his statement concerned a very serious matter. He gave the statement to a person in authority inside of a police cruiser while being videotaped. I find that these factors added a significant degree of gravitas to the situation. It would have impressed on Mr. Downs that it was important to be truthful, accurate and as comprehensive as possible.
[57] In Hankey the court found similarly at paragraph 27: "… the fact that the statement was given to persons in authority, tends to counter the absence of an oath".
[58] Mr. Downs did not exhibit any signs of intoxication. He gave the statement in a clear, coherent manner. He did not ramble. He was specific about what he saw. He appeared genuinely interested in telling Officer Bower the information that he had regarding the incident. He appeared to be especially motivated by his belief that the accused acted in self-defense.
[59] Mr. Downs does not know either the accused or the complainant. He is a disinterested witness. This counts in favour of the conclusion that his statement is not tainted by bias for either side.
[60] Mr. Downs has a criminal record for crimes of dishonesty, but it dates back to 1992. The last such conviction was almost 12 years ago. This mitigates substantially the effect of his record on his veracity as a witness in these circumstances.
[61] He gave his statement very shortly after the incident occurred. This minimizes the dangers of potential forgetfulness.
[62] When Mr. Downs was not sure about something, he said so. He did try to present guesses or assumptions as facts. This underscores his honesty and the seriousness with which he took his task of giving an accurate statement.
[63] I considered all of the circumstances, including the above mentioned specific factors. I find that the hearsay dangers of lack of an oath or solemn affirmation, risk of inaccuracy or undue forgetfulness, and lack of cross-examination are sufficiently ameliorated to provide the statement with the threshold reliability required for its admission for the truth of its contents.
[64] I find that based on all of the circumstances, and specifically on the circumstances in which his statement came about, the contents of the hearsay statement are sufficiently reliable that contemporaneous cross-examination of Mr. Downs would add little if anything to the process.
[65] Therefore, Mr. Downs' statement will be admitted into evidence for the truth of its contents. The application of the defence is granted.
[66] Later, I will decide its ultimate reliability when I consider all of the evidence given in the trial and render judgment.
The Statement of Mr. Graziano
[67] Officer Karpuc took Mr. Graziano's statement. I viewed the statement in court and in my chambers. Officer Karpuc did not prompt Mr. Graziano or lead him in any way to give any particular answer or information. At the beginning of the statement he told Mr. Graziano to explain in his own words.
[68] The statement was not under oath or solemn affirmation. It was given in Officer Karpuc's cruiser to a person in authority. It was recorded on videotape and audiotape. I was able to observe clearly Mr. Graziano's demeanour throughout the statement.
[69] Mr. Graziano did not appear to be under the influence of any intoxicant. Officer Karpuc confirmed that this was his impression, also.
[70] The statement was given shortly after the incident.
[71] However, although the process of the giving and taking of the statement is quite similar to Mr. Downs' statement there are significant differences as well.
[72] First, Mr. Graziano knew both parties for about one year. He was not a disinterested witness. He explained his substantial efforts to get them to reconcile their differences. Despite his efforts he was not able to accomplish this. He looked frustrated about it on the videotape.
[73] Second, although Mr. Graziano did not exhibit any signs of being under the influence of alcohol, I found it questionable that Mr. Graziano and the complainant could drink a case of beer together and that Mr. Graziano would not be affected to some degree. There is a real potential that his perceptions and recollections could have been affected by his consumption of alcohol. This would affect the reliability of the statement.
[74] Consequently, I am not satisfied as stated in Bradshaw that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process …"
[75] For example, Mr. Graziano said that he knew of a fight between the accused and the complainant in their "own house" that resulted in a scar and a black eye to the complainant. He did not explain how he knew about this. Who told him? Did he hear both sides of the story? Could it have caused a bias on his part in favour of the accused or of the complainant?
[76] In addition, I find that the issues of Mr. Graziano's sobriety and of his relationship with the parties would be fertile ground for cross-examination. The court would require investigation into these circumstances via cross-examination in order to properly assess the ultimate reliability of Mr. Graziano's statement. Without this opportunity the trial's truth seeking function would be unduly hampered. The court would be left with untested, potentially unreliable, or biased evidence.
[77] Therefore, I find that after considering all of the circumstances Mr. Graziano's statement does not reach the required level of threshold reliability to be admitted for the truth of its contents. The defence application is denied.
The Statement of Idil Farah
[78] The circumstances surrounding Ms. Farah's statement are substantially different from those of Mr. Graziano and Mr. Downs.
[79] Ms. Farah gave her statement shortly after the incident, but it was not recorded in any way except in Officer Karpuc's note book. Ms. Farah did not sign the officer's note book. There is no way of confirming that what she said was accurately recorded by the officer. This opens up the statement to the dangers mentioned in Khelawon: "The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity …"
[80] In addition, Ms. Farah was not under oath or solemn affirmation. Officer Karpuc did not warn her of the consequences of not telling the truth. Officer Karpuc did not videotape her statement to off-set the fact that she was not under oath or solemn affirmation as was the case with Mr. Downs and Mr. Graziano.
[81] The defence argued that Ms. Farah did not know either the accused or the complainant. However, there is no evidence in this regard.
[82] The defence also argued that Ms. Farah gave her statement "spontaneously". However, there is no evidence that it occurred this way.
[83] Although Ms. Farah gave her statement to a police officer with regard to a serious matter, the circumstances in which she gave the statement did not have the same serious quality as they did with Mr. Graziano and Mr. Downs.
[84] Officer Karpuc said that the situation was "quite chaotic". He only got "a bit of a story". He described it as a "brief recollection of what she saw". This is a concern because it indicates that it is quite possible that Ms. Farah would have had more to say that could qualify the statement that she gave to Officer Karpuc. There is be no way of knowing this one way or another without cross-examination.
[85] Moreover, in a chaotic situation it is quite possible that the officer could have made an error in recording Ms. Farah's statement in his note book. Misunderstandings can easily occur in such situations, both for Ms. Farah and for Officer Karpuc.
[86] Also of concern is that Officer Karpuc said that "As far as I recall that's what she told me". This leaves the impression that the officer is not sure that he accurately recorded all that she said. It also leaves me wondering whether the officer was sure that he recorded everything that she told him.
[87] Officer Karpuc did not make any notes with regard to Ms. Farah's sobriety. He concluded that this meant that she did not exhibit any signs of being under the influence of an intoxicant.
[88] Since the statement was not recorded on videotape, or on audio tape, there is no way to check the accuracy of Officer Karpuc's note taking. Also, the court is deprived of the opportunity to observe Ms. Farah's demeanour. In addition, there is no way to clearly determine how Officer Karpuc questioned her. The defence argued that he did not prompt her any way. However, there is no evidence in this regard.
[89] The defence argued that Ms. Farah had no motive to lie. She did not know the parties. Again, there is no evidence in this regard.
[90] The statement is quite brief. It does not include any information regarding where Ms. Farah was when she observed what she said she saw, what she was doing, or who she was with. Therefore, there is no way of telling how far away she was from what she says she saw, whether she was distracted, whether there were any obstructions to her view, or how long her observation lasted.
[91] I find that in these circumstances there is not sufficient threshold reliability for Ms. Farah's statement to justify its admission into evidence. The defence application is denied.
Released: July 18, 2019
Signed: Justice J.W. Bovard
Footnotes
[1] Transcript, May 13, 2019, page 80, lines 20-24
[2] Transcript, May 13, 2019, page 93, lines 19-22
[3] Ibid., page 96, lines 5-9
[4] 2017 SCC 35, para. 20
[5] Khelawon, para. 47
[6] para. 49
[7] Khelawon, para. 50
[8] para. 23
[9] para. 27
[10] para. 28
[11] para. 28
[12] para 31
[13] para 31
[14] para.32
[15] 2013 ONCA 512, para. 40
[16] para. 42
[17] 2008 SCC 37, [2008] 2 S.C.R., 298, para. 35
[18] para. 44
[19] para. 36
[20] 2017 SCC 35, [2017] 1 S.C.R. 865, para. 4
[21] para. 46
[22] [2008] O.J. No. 4590; 2008 CarswellOnt 7962, paras. 24, 25