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 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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 24, 2020

Court File No.: Ottawa 19-SA4336

Between:

Her Majesty the Queen

— and —

Stephen Spour

Before: Justice Jacqueline V. Loignon

Decision released on: September 24, 2020

Counsel:

• Mr. F. Dulude — counsel for the Crown
• Mr. J. Harbic — counsel for the defendant

Decision

LOIGNON J.:

[1] Introduction

[1] The accused is charged with sexually assaulting CL on December 24th, 2018. On the first day set for trial, the Crown brought an application pursuant to R. v. Khelawon, 2006 SCC 57 to adduce four out-of-court statements made by CL as she was not present in court to testify. By agreement of the parties, the application and trial evidence were heard in a blended fashion. Subsequent to hearing from four witnesses, the Crown closed its case and made submissions on the application. Defence sought an adjournment because of the late notice of the application, which was granted. Submissions were to have concluded on April 14th but in the intervening weeks, the Covid-19 pandemic limited courthouse operations to urgent and essential matters. By agreement of the parties, submissions were completed in writing. Though there was some confusion in relation to the focus of the defence argument, counsel has confirmed that reliability is conceded and that the chief concern is necessity. These are the reasons in relation to the hearsay application.

Evidence in Support of the Application

[2] Constable Stéphane Éthier

[2] Constable Stéphane Éthier responded to a call for service on January 10th, 2019. On that day, he spoke with CL, who reported having been sexually assaulted by the accused on December 24th. CL provided details of her interaction with the accused on that day as well as other instances of problematic behaviour. While speaking with CL, Constable Éthier noted that she became very emotional and the tone of her voice changed when she spoke of the assault and the accused's behaviour. At the time, CL declined to make a written statement and said she did not think she could write one. Constable Éthier advised that CL is an elderly lady (now 86) and that it took him a significant amount of time to get her story, as she sometimes reverted to other matters, causing the officer to re-direct.

[3] Statement to Constable Éthier, January 10, 2019:

• That she had problems with a male named Stephen on the 6th floor but did not know his full name;
• That on December 24th, she was in the lobby waiting for her daughter to pick her up for Christmas;
• That while she was waiting, she got up to let other tenants in and pressed the handicapped button;
• That during this time the accused was also sitting on the bench;
• That the accused placed his hand on her thigh and slid it up to her vagina;
• That she became very upset and yelled at him that he was lucky she did not hit him with her cane.

[4] Ms. Amanda Masterson — Social Worker

[4] Ms. Amanda Masterson is a social worker with Geriatric Psychiatry, Community Services of Ottawa. She is a case manager on a geriatric psychiatric team and works with seniors on issues related to their mental health. Ms. Masterson has been working with CL for nine years, or since 2011. She was referred by CL's psychiatrist who felt that CL needed home support. This having been said, CL lives independently and manages all aspects of her life herself. When she is doing well, Ms. Masterson will see her every two months. If she is struggling, she will do phone visits and more frequent home visits. Though CL has no major illness, she struggles with mental health issues such as anxiety and depression. When the anxiety manifests itself, CL will self-isolate. This has been an on-going issue for CL from the time Ms. Masterson first became involved with her. This having been said, she has no cognitive deficits and no memory issues.

[5] With respect to this particular matter, Ms. Masterson has been involved with CL and has offered support. Ms. Masterson advised that CL anticipates going out with great fear. This incident has caused her to be much more anxious and fearful. She is very afraid to leave her apartment or go out in public for fear of seeing the accused. As a result of this, she is much more isolated. Ms. Masterson has spent time reassuring CL about going out, the resources that are available to her to get around and has reminded her that she carries a whistle and if necessary, she can attract attention and call on other people for help.

[6] When discussing the prospect of testifying, Ms. Masterson described CL becoming extremely agitated, anxious and fearful. She becomes really worried about how she will be in the court setting. According to Ms. Masterson, CL stated to her that she was unable to cope.

[7] On January 10th, 2019, Ms. Masterson had a meeting with CL at [address redacted] Avenue as a result of this incident. As they were moving to the "Aging In Place" Office in the building, CL encountered the accused in the hall. She exhibited immediate and extreme distress and yelled at him. Her voice was elevated, and her anger was evident to Ms. Masterson. As Ms. Masterson moved or directed CL into the office, CL pointed to the accused and said, "that's the guy". Once in the office, it took some time for CL to calm down. CL was described as extremely upset, agitated and angry. She required re-assurances that she was safe.

[8] Statement to Ms. Masterson, January 10, 2019:

• That she was going out to her daughter's and was being picked up out front of the building
• That as she was heading out the door, the accused was beside the door on a bench;
• As she was exiting, the accused reached his hand up her skirt and onto her private parts;
• That she made some comment to him;
• That she went out the car and was shaken, unable to process what had happened;
• That later she spoke to her daughter about what happened.

[9] It bears noting that Ms. Masterson did not have any of her notes with her, either in relation to CL's care, generally or in relation to her support of CL as it pertains to the allegation before the Court.

[10] Ms. FQ — Complainant's Daughter

[10] Ms. FQ is CL's daughter. On December 24th, 2018, she was with her husband and young daughter to pick up her mother for Christmas celebrations. As they arrived in front of the building, FQ saw her mother in the building's front lobby. She seemed to be angry as she had her hand up and was either pointing her finger or a key. Moments later, CL looked up and made her way to meet FQ's husband. Once in the car, FQ asked CL what had happened. She responded: "That was Steve. He touched my leg". Her mother then became very quiet and turned to her daughter.

[11] Later on, once they were alone, CL provided more details about what happened. According to FQ, her mother did not want to do anything at the time as she did not want to ruin Christmas. As they spoke of what happened, FQ described her mother as being upset, flustered and confused in that she seemed still to be processing what had happened. FQ described her mother as very bright but that she suffers from anxiety and depression. According to her, she is still very upset about this. She cries and sleeps more than usual. When she does speak of this, FQ described her mother as spinning as in her thoughts being uncontrollable and fixating. She denied any confusion when this happened but explained that she would bring up things from the past, though she would not confuse present and past events.

[12] Statement to FQ, December 24, 2018:

• That she was waiting for FQ in the lobby;
• That as she waited, two ladies from the building came in from the bus with packages;
• That she opened the door to help them in;
• That as she opened the door and leaned forward, Steve groped her, touching her leg and upper vagina;
• That once the ladies were through the door, she turned to the accused, pointed at him and said "Do you want to go to jail. Don't touch me again.";
• That FQ's husband was at the lobby by then.

[13] According to FQ, CL did not want to say anything in the truck for fear of upsetting the baby. There have been a number of other incidents that CL has spoken about involving the accused, including one in the recycling room though FQ could not place when this occurred. She did recall having told her mother to call the police.

[14] Detective Drover-Janes

[14] Detective Drover-Janes was assigned this investigation and interviewed CL. As she knew she was dealing with an elderly lady, she met with her prior to the interview and also spoke with both Ms. Masterson and FQ. During her first meeting with CL, on January 15, 2019, Det. Drover-Janes noted that she was friendly and pleasant. She spoke extensively about her life, which the officer described as tough. CL recounted that she has been living at [address redacted] Avenue for 25 years. Since her encounter with the accused and initial report to police on January 10th, she has been afraid and has not left her apartment for fear of seeing the accused. As a result of this, the officer did safety planning with CL. They did not speak of the incident on December 24th that day.

[15] On January 18th, Det. Drover-Janes picked up CL at her residence and brought her to Huntmar police station for the video recorded statement. She described CL as being clear and articulate that day, though perhaps nervous. Once at the station, CL was brought to the interview room and was sworn by a commissioner of oaths. CL then gave a two-hour statement.

[16] Statement to Det. Drover-Janes, January 18th, 2019:

• Recounted events from the distant past, including when she was previously interviewed by police;
• Gave the day and month;
• Stated that she did not want to get raped "by this jerk";
• That she did nothing wrong, she was there to tell the truth and if it helped others in the building, so be it;
• That she wanted to do things the right way. She did not want to hit or hurt him but also did not want to be hurt;
• That on December 24th, she was waiting to be picked up by her daughter to spend Christmas, her birthday and New Year's with her, her husband and granddaughter;
• That when she received a call from her daughter that they were close by, she went downstairs to the lobby;
• That while in the lobby, she waited between the sets of doors where there is a bench. To be kind to others coming in, she would open the door by pushing the button. She did this and as she turned around, she saw that Steve Spour was there sitting on a bench, his knee right under the keyhole. She did not speak or interact with him.
• That as group of ladies came in with various parcels, she leaned over with her key to open the door for them. As she did this, the accused put his hand under her winter coat, on her left thigh and then on her genitals. She froze, then backed up. She looked at him and said loudly; "Do you want to go to jail?" He smirked. This was when her daughter and son-in-law arrived.
• That she did not raise her cane though she felt he deserved it. She just got out of there;
• That she did not say anything in the truck because of her 4-year-old granddaughter;
• That her daughter told her she saw her through the window pointing her finger;
• That she was stunned, upset and just froze. She could not believe what was happening;
• That she felt the accused's actions were very sneaky, sly;
• That there were no injuries, bruising or ripped clothing;
• That her sleep is now interrupted, and she does not feel safe;
• That she feels he prowls and stalks her and others in the building;
• That he has to get out of the building.

[17] During the interview, CL repeated several times that when she said, "Do you want to go to jail", she also said, "you bastard".

[18] CL described the accused in very unflattering terms as follows:

• About 6 feet tall, glasses, "a very dishonest face as far as I'm concerned";
• He seems as if he's either on drugs or medication, or because he's slushed most of the time, or he's drinking;
• He sits in a very lousy/lazy way. He's always watching and stares;
• He's heavy, has a pot belly;
• That he is not trustworthy;
• He has said to her that he is a former Mountie, that he was a chemist or biologist;
• He has been living there about one year. She had never met him before.

[19] During the interview, CL described several other incidents of assaultive behaviour involving the accused that are not part of the charged offence. Though they constitute discreditable conduct and are inadmissible, they do however inform CL's attitude towards the accused and her fear of him. I will only consider them to this extent. Throughout the interview, as she described her various interactions with the accused, CL at times became emotional, especially as she spoke of no longer feeling safe in her residence.

[20] On several occasions during the two-hour interview, CL diverted from the topic at hand into areas irrelevant to the investigation. Though the Detective brought her back on track, these forays seemed to be examples of the "spinning" FQ referenced. There was no confusion on CL's part, and she readily admitted that the information had nothing to do with the accused but was still quite determined to have her say.

[21] Detective Drover-Janes testified that at times during the interview, she could see CL's anxiety in her face or hear it in her voice. As a result, the following day, she contacted CL to see how she was doing. CL told her that she was exhausted, which, according to the officer's experience, is not an uncommon reaction to police interviews. In the intervening period, she has spoken with CL a number of times and each time CL has advised of her desire to do the right thing and that she fears the accused. Because of this, she does not leave her apartment.

[22] Throughout this investigation, Detective Drover-Janes believed that CL would testify. Nothing had been noted by her in terms of reluctance to testify and during the interview, CL expressed that she would. She later heard of her unwillingness in the fall, through VWAP and the Crown.

[23] No evidence was called by the defence on the voir dire.

Law

[24] The Crown tenders the statements made by CL for the truth of their contents and, given CL's absence at trial, these are presumptively inadmissible. The law begins from the premise of inadmissibility given that: "[…] the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination." R. v. Couture, 2007 SCC 28 at para 88.

[25] The principled exception to the hearsay rule allows for the admission of such statements if the party applying for their admission can demonstrate both necessity and reliability on a balance of probabilities. "By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process." (R. v. Bradshaw, 2017 SCC 35 at para 24). Even should the evidence meet this first hurdle of threshold reliability, the trial judge still has discretion to exclude the evidence if the prejudicial effect outweighs its probative value.

[26] Reliability exists where a statement is made and there are (1) adequate substitutes for testing truth and accuracy (procedural reliability) or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). (Bradshaw at para 27).

[27] With respect to procedural reliability, the Supreme Court has recognized video recording, the presence of an oath, and a warning about the consequences of lying as being substitutes for traditional safeguards. However, there also must be some type of cross-examination of the declarant, at a preliminary inquiry or within the context of a recantation, for example. (Bradshaw at para 28)

[28] Substantive reliability relates to a statement's inherent trustworthiness. In assessing this, the trial judge may look to the circumstances in which it was made and evidence that corroborates or conflicts with the statement such that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process." (Bradshaw at para 31). Bradshaw establishes that the corroborative evidence the adducing party may rely on to demonstrate substantive reliability, must relate to the reliability of the hearsay – the trustworthiness of the statement as opposed to corroboration at large. As summarized in R. v. Johnston, 2018 MBCA 8 at para 102:

[…] Not only must the corroborative evidence corroborate the statement itself and not merely the party's case, but the corroborative evidence, when considered as a whole and in the circumstances of the case, must establish on a balance of probabilities that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the materials aspects of the statement.

[29] Necessity arises in a multitude of situations where someone with relevant evidence is unavailable, unable or unwilling to provide evidence to the court. More specifically, necessity has been made out where the declarant is deceased (R. v. Smith, [1992] 2 S.C.R. 915), incompetent to testify (R. v. Khan, [1990] 2 S.C.R. 531) or is unwilling in the sense that they have recanted their prior statement. (R. v. B.(K.G.), [1993] 1 S.C.R. 740) Necessity has also been found where the declarant was not located between the commission of the offence and statement in 2006 and the charge and trial, some eight years later, in 2014. (R. v. Hodgson, 2017 O.J. No. 1591)

[30] In some instances, though the declarant may be available, no purpose would be served by attendance, either through an absence of independent recollection or the creation of an absurdity. (See Sopinka, Lederman & Bryant, The Law of Evidence in Canada (4th ed. 2014) at pp.267-271.). The example provided by the authors on this last point is proof of a date of birth.

[31] The Courts certainly have recognized situations where the declarant is unavailable due to their particular vulnerability and the effect of the trauma. In R. v. R.(R.), [2001] O.J. No. 4254 the Ontario Court of Appeal accepted that the complainant, who was developmentally delayed and functioned at the level of a five year-old, was "unavailable" due to a failure to attend the trial and the trauma inflicted by the incident. Though necessity is a flexible concept to accommodate the myriad situations that may arise, it still must be established in the individual case given the ramifications, that is the say, the use of an out-of-court statement as a substitute for the attendance of the declarant and testing the evidence through cross-examination.

[32] In R. v. Nicholas, the Court accepted that though the declarant was available, she suffered from post-traumatic stress disorder as a result of the sexual assault. Medical evidence was called that suggested she would suffer a complete inability to function if she were required to testify and that even the prospect of testifying caused a "total deterioration in [G.W.'s] psychological status." (at para 79) The doctor added that there was a risk the complainant would commit suicide if forced to testify and that even the various courtroom aids would not be sufficient. The Court of Appeal agreed with the trial judge's conclusion that the use of the out-of-court statements was necessary given the evidence called saying at para 94:

Although it is rare for a complainant to be found unable to testify, where the hearsay statements were found to be reliable and where the evidence of the psychologist that the complainant could not testify was uncontradicted, the trial judge was entitled to conclude that the necessity and reliability tests have been met.

[33] Given the issues for which the statements were being adduced, the Court of Appeal ultimately held that that they were reliable as no purpose would be served by cross-examination and the trial judge erred by deferring to defence counsel's assertion that cross-examination was necessary.

[34] In R. v. Robinson, the Court of Appeal took issue with the trial judge's finding of necessity where a 10-year-old declarant did not attend trial as a result of his mother's refusal that he be involved in the criminal prosecution involving her former boyfriend. He had been charged with brutalizing her and terrorizing the child. The mother testified on the hearsay application and confirmed that she would not allow anyone to speak to her son. She related that he had been traumatized by the incident and that testifying would further traumatize him. Though she said that teachers were recommending he see a therapist, nothing further on that subject was adduced. She also expressed fear for herself and her son that the accused would retaliate against them should they testify. She stated she was prepared to risk her own safety, however, was not prepared to risk her son's. Though a psychologist was called by the Crown about psychological trauma, this person never interviewed the declarant and could only speak in generalities about the impact of testifying. The trial judge concluded that the declarant would suffer further emotional trauma if compelled to testify such that necessity was made out.

[35] The Court of Appeal determined that this finding of necessity could not stand. Without stating that medical evidence is required in all cases, it did say at para 45, that:

[…] it will be a rare case, however, where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of this child by a qualified expert, unless the trial judge has had the opportunity to see the child's reaction to questioning in the courtroom setting.

Analysis

[36] The Crown argues that necessity is met here given CL's absence from court and the evidence heard about her anxiety, fear of leaving her apartment, and fear of the accused. The Crown relies on the evidence heard from Ms. Masterson, FQ, and the investigating officer for CL's condition and fears.

[37] The accused does not argue reliability but focuses instead on necessity. In terms of this requirement, the accused argues that there is an insufficient evidentiary basis for the application, there being no evidence why testimonial aids would not be sufficient for CL's concerns. Furthermore, there is evidence that during the police interview, CL was fully aware that she would be called upon to testify and accepted that fact. This, it is argued, has not been displaced by the vague concerns advanced during the evidence.

[38] There is no doubt that the default position is that a declarant be present in court to provide their evidence so that it may be given under oath and tested through cross-examination. (Robinson, supra at para 49; Couture, supra at para 88) Certainly, necessity is a flexible concept to accommodate different circumstances, notwithstanding, necessity is an important pre-requisite and must be established in each particular case. (R. v. Parrott, 2001 SCC 3 at para 74)

[39] As can be seen above, hearsay applications have been granted where witnesses are particularly vulnerable and where further harm may be occasioned by in-court testimony. That having been said, cogent evidence must be adduced in this respect. This may be in the form of a psychological assessment or it may be through observation of the witness in court. (Robertson, supra at para 45; Parrott, supra at para 77.)

[40] Here, the evidence disclosed an 86-year-old complainant who suffers from anxiety and depression. These are both pre-existing medical conditions. According to Ms. Masterson and FQ, since this incident, CL is fearful of the accused and of leaving her apartment and, as well, is anxious about court. According to the investigating officer, immediately following the incident, she did not leave her apartment for five days. Even in subsequent conversations with her, CL has expressed her fear of seeing the accused and that she does not leave her apartment.

[41] According to FQ and Ms. Masterson, CL has been agitated or anxious when discussing court. It is unclear how recent these conversations were or what specifically she is anxious about. There is no expert evidence or any evidence really on the effects of testifying given CL's pre-existing condition. On this point, though I note that Ms. Masterson is CL's social worker and has some insight, she did not speak of CL's capability to give evidence or any negative effects on CL if she gave evidence in court. No evidence was offered about the efficacy of the various courtroom testimonial aids and whether these were even offered to CL. I note that much of the expressed anxiety revolves around seeing the accused. The testimonial aids can more than adequately address this as CL would not be required to see him at all.

[42] In short, there is an absence of evidence about the potential effects of testifying and if any of these could be mitigated with testimonial aids. While I appreciate that CL is afraid of leaving her apartment, she certainly did so when accompanied by the officer for the video interview. There is no reason to believe that she could not do the same to testify, especially if accompanied by the officer and if she were not required to enter the courtroom.

[43] In addition to this absence of evidence, there is also evidence of CL being made aware of the need to testify and her acceptance of this fact. Indeed, during her video-taped statement she is asked by the commissioner of oaths at pp 6-7 of the transcript:

CO: …Anything you say today or have said in the past regarding this investigation may be used for the purpose of laying criminal charges, and you may be required to testify in a subsequent criminal trial. Do you understand:

CL: yes. Yes, I do.

CO: Okay and sign.

CL: If I go to court, I go to court. Cuz apparently, the whole building is complaining.

[44] There is no evidence directly regarding the complainant's change of heart and what this is based upon. To the extent that this involves a fear of seeing the accused, as I have already noted, this can be dealt with through a remote CCTV appearance. Anything further, especially in terms of trauma, is simply not made out on the evidence and in any event, there is no basis to say that other testimonial aids would not address the concerns raised. As noted in Parrott, supra at para 77: "Few complainants can welcome a courtroom appearance in a sexual assault charge". Trauma to CL cannot be inferred on the evidence before me, especially in view of her previously expressed acceptance of the need to testify.

[45] The onus is on the Crown to call the evidence in support of this extraordinary process that allows an available declarant not to testify and have their evidence subject to cross-examination. In these particular circumstances, I am not satisfied that the Crown has adduced the evidence in support of necessity.

[46] Though this in essence deals with the application, I do wish to make a few comments in relation to reliability given the Supreme Court of Canada's comments in R. v. Baldree, 2013 SCC 35 that:

the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), [1993] 1 S.C.R. 740 (S.C.C.), and R. v. U. (F.J.), [1995] 3 S.C.R. 764 (S.C.C.).

[47] To that end, I have not set out the four-part analysis contemplated by Bradshaw supra in relation to substantive reliability, but rather have identified those issues which are the most evident.

[48] In terms of the audio-video police statement, clearly procedural reliability is met. I will comment on substantive reliability in relation to this statement in a moment. With respect to the balance, there is no evidence of any procedural safeguards. With respect to all four statements, none were the subject of cross-examination or testing.

[49] The statement made to Ms. Masterson has particular reliability concerns given this witness did not testify with her notes of the conversation. Though she advised she had re-read her notes prior to testifying, she said during cross-examination that she did not wish to speak about her notes without having them before her. This of course undermined the efficacy of any cross-examination about the details of her conversation with CL. I therefore find that this statement in particular does not meet the reliability threshold on a very preliminary basis.

[50] With respect to the statement to FQ, though not a res gestae statement per se, it was made much closer in time to the events CL was describing, namely the very day of the allegation. It was accompanied by detailed descriptions of CL's emotional state immediately upon entering the truck just after the alleged assault and while CL was recounting the allegations to FQ. Finally, there is corroboration of the description by CL of pointing to the accused and animatedly saying something, which FQ described in her own evidence. In terms of counsel for the accused suggesting that CL exaggerated her account in order to gain her daughter's sympathy, I reject this argument outright. FQ is CL's daughter; she has her sympathy regardless. She does not need to inflate anything, even from a simple assault to a sexual one. Because of the proximity in time to the allegation and the original evidence from FQ of her observations of what happened in the lobby, I am satisfied that reliability has been met in terms of this statement.

[51] Concerns in relation to the statement taken by Constable Éthier include that it relates to events some 18 days after the allegations and that the officer related having some trouble keeping CL on track. I think it fair to describe the statement taken by Constable Éthier as a summary of their conversation rather than a verbatim account which raises concerns.

[52] In terms of substantive reliability, the audio-visual statement was made January 18th some 25 days after the events. It is a lengthy and at times rambling statement though it is clear from CL's answers that her memory on many different topics is excellent. Her detailed recital of the 24th and how the accused touched her is logical. Though the accused raises that CL does not give the names of the ladies coming into the building, suggesting these are fabrications, there is no basis for this suggestion. It also bears noting that though there was a question about who was in the lobby, CL was not asked to identify or try and describe these women. In any event, the touching CL related to the officer occurred under her winter coat, making it unlikely either of the women were witnesses to what occurred. This argument is not persuasive.

[53] Counsel for the accused raises the existence of motive or animus, namely the desire to have the accused removed from the building. CL expressed a number of times in her statement the need for the accused to be gone from the building because he is a stalker, that he turns up everywhere, that he touches the women in the building and makes them feel unsafe. CL explicitly and repeatedly articulated her desire for the accused to be gone from the building. Though this may be because of the behaviour related, it may also be for other reasons: recall above the pejorative manner in which CL described the accused for the officer. There is no evidence adduced on the voir dire which can or actually does address motive. Though not expressed in the other statements, it remains a live concern for all, given the animosity that was evident in the audio-recorded interview.

[54] Overall, I am not satisfied that there is a sufficient substitute basis for testing the evidence or that it is inherently truthful. Given the shortcomings in the statements, I cannot say that the reliability of the evidence has been sufficiently established such that the necessity requirement can be relaxed, especially in the face of CL's understanding and acceptance of the need to testify.

[55] The Crown application to adduce CL's hearsay statements is dismissed.

Released: September 24, 2020 (the release of the decision was delayed due to the Coronavirus pandemic)

Signed: Justice Jacqueline V. Loignon