Court File and Parties

Date: October 17, 2019

Court File No.: 18-1177

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Brandon Capaldi

Before: Justice Michael G. March

Voir Dire Heard: October 4, 2019

Reasons for Judgment on Voir Dire Released Orally: October 17, 2019

Counsel

Nathalie Castonguay ............................ Counsel for the Crown

Michael Crystal ............................... Counsel for the Accused

Judgment

March, M.G., J.:

Background and Facts

[1] At the conclusion of the first day of trial, the defence sought to have certain hearsay statements of an unknown female admitted into evidence at the trial of Brandon Capaldi. The evidence was adduced during a voir dire held while a Crown witness, Cst. McLaren, a police officer with the Renfrew O.P.P., was under cross-examination.

[2] By way of background, Mr. Capaldi and the unknown female were seen shortly after 2:16 a.m. on September 9, 2018 by Cst. McLaren to exit a bar and enter an unoccupied vehicle. Mr. Capaldi opened the driver's door having first dropped the keys on the ground. He sat in the driver's seat. He then used the key in a manner which enabled the headlights and dome light of the vehicle to illuminate. The engine of the vehicle was not started.

[3] Meanwhile, the unknown female took a seat on the rear passenger side of the vehicle.

[4] Cst. Peace, another Renfrew O.P.P. officer, soon after arrested Mr. Capaldi for impaired care or control of a motor vehicle. Cst. McLaren interacted with the female.

[5] Cst. Condron, yet another O.P.P. officer on scene, located marijuana in the vehicle in a knapsack left in the front passenger footwell of the vehicle.

The Statements in Question

[6] Testifying during the voir dire, Cst. McLaren explained that he did not take verbatim notes. However, he attributed to the female two statements to the effect of:

a) "I don't know him [Mr. Capaldi] personally," and

b) "We were going to the car to smoke a joint."

[7] Cst McLaren failed to obtain the name, address or any other contact information for the female. He described this oversight on his part as "poor judgment." If he had his time back, he would have memorialized her coordinates. He agreed, over a year later, there would be no realistic chance of tracking down who the female was.

[8] Cst. McLaren confirmed that Mr. Capaldi and the female were not holding hands when they left the bar. As well, there was minimal conversation between the two individuals.

The Legal Issue

[9] The defence seeks to have the two 'out of court' statements of the unknown female admitted for the truth of their contents as a principled exception to the hearsay rule.

[10] The Crown concedes the necessity of the evidence in its hearsay form emanating from Cst. McLaren. The defence has no other means to adduce it.

[11] The Crown argues that the evidence, however, does not meet the requirements of threshold reliability upon assessment of either the procedural or substantives branches for testing its admissibility.

Crown's Position

[12] The Crown points out that the statements were not made under caution, nor under oath. Cst. McLaren made clear in his evidence that they were not recorded verbatim in his duty book notes. The statements cannot, of course, be tested under cross-examination. The substitutes for contemporaneous cross-examination, the Crown contends, are insufficient to allow for the reception of the statements into evidence. Last but not least, the Crown argues the unlikelihood of Mr. Capaldi and the female smoking marijuana in the nearby presence of three uniformed officers.

Defence's Position

[13] The defence submits that the evidence is required to rebut the presumption in s. 258(1)(a) of the Criminal Code that Mr. Capaldi had the care or control of the vehicle because he sat in the seat ordinarily occupied by its operator. To the contrary, the defence argues the vehicle was being used simply as a place to smoke marijuana.

[14] Additionally, the defence wishes to utilize the evidence as a contra-indicator that Mr. Capaldi, in an impaired state, may have changed his mind and decided to operate the vehicle.

[15] The defence, in essence, argues that the Court can be satisfied of the reliability of the evidence by looking to its circumstantial guarantees of trustworthiness. The female made, in a certain manner, a statement against penal interest. Possessing and smoking marijuana was still a crime in September 2018. There is thus a badge of honesty to what the female was saying to police. Contemporaneous cross-examination of the female would add little to the inquiry into the truth of Mr. Capaldi's and her intentions.

Legal Framework

[16] In deciding this application, I must remind myself that all hearsay evidence is presumptively inadmissible. To be admitted as a principled exception, its proponent must meet the burden of persuasion on a balance of probabilities.

[17] As necessity is properly conceded by the Crown, I must turn my mind to whether threshold reliability for the statements exist. In other words, are the typical hearsay dangers overcome to pave the way to admission of the statement into evidence? Two avenues must be assessed and explored – procedural reliability or substantive reliability.

Analysis: Procedural Reliability

[18] On the prong of procedural reliability, there is little to assist the defence. The statements were not taken under caution, nor under oath. There is no way to assess now the unknown female's demeanour when she made the statements. Nor was she subjected in any manner to something which could substitute for cross-examination. The statements could have been inaccurately recorded by Cst. McLaren. Indeed, there is scarce, if any procedural means, to test the perception, memory, narration or sincerity of the unknown female.

Analysis: Substantive Reliability

[19] In evaluating substantial reliability, on the other hand, there is inherent trustworthiness to the statements, when one assesses the circumstances surrounding their making. There are definite indicators that substantially negate the possibility that the declarant was untruthful or mistaken. Indeed, corroborative evidence exists to support the statements' accuracy.

[20] Firstly, the female was mainly an independent witness in the way she interacted with Cst. McLaren. She did not react in an irate manner toward police when Mr. Capaldi was arrested. She showed little connection to him when she exited the bar with him to go to the car. They did not hold hands. Few words were exchanged. She took up a position in the vehicle hardly suggestive that Mr. Capaldi and she intended to drive off together. Her conduct did not demonstrate that she knew Mr. Capaldi very well at all, if at all.

[21] Secondly, marijuana was found within reach of Mr. Capaldi in a form that did not require much in the way of processing to render it smokable.

[22] Thirdly, in considering the Crown's speculative submission that Mr. Capaldi and the female may have intended to drive elsewhere away from the watchful gaze of the police, I cannot give that possibility much weight, if any. There was no evidence to suggest Mr. Capaldi and the female even glanced in the direction of the police. I have real doubts as to whether they even saw the police en route to the car. Furthermore, the willingness of the female to divulge to Cst. McLaren her foiled intention to smoke a joint with Mr. Capaldi speaks loudly to the prevailing, nonchalant, public attitude toward marijuana use by September 2018.

[23] If cross-examined on the two statements by the Crown, I do not believe that the female's evidence as to the common intention of Mr. Capaldi and her would change one iota.

Decision

[24] For the above reasons, I shall allow the two statements attributed to the unknown female to be admitted at trial for the truth of their contents.

Dated: October 17, 2019

March, M.G., J.