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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
DATE: 2021 04 30 COURT FILE No.: Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AMARI BUCHANAN
Before Justice L. Feldman Heard on Feb. 5, 6, 7, 19, July 20, 23, Aug. 4, 5, 6, 2020, March 1, 3, 21, Reasons for Judgment released on April 30, 2021
Counsel: S. Orlando............................................................................................ counsel for the Crown W. Rosemond................................................. counsel for the accused Amari Buchanan
FELDMAN J.:
Introduction
[1] Amari Buchanan entered not guilty pleas to charges of Criminal Harassment x 2, Fail to Comply with Probation x 4, Financial Benefit x 2, Trafficking in Persons by Recruiting, Threaten Bodily Harm, and Wound Animal. The Crown proceeded by Indictment.
[2] It is alleged that while in a relationship with the complainant, J.J., the defendant assaulted her often and took control of her forays into the escorting business while living off her earnings. After being charged with the subject offences, it is also alleged, among other counts, that he tried to coerce her into lying in court about his role.
[3] J.J. spoke to the police twice about these allegations. Her cautioned statements were videotaped, the latter for over 2 hours. She is a recanting witness, adverse in interest to the prosecution’s case, hostile to the Crown, disparaging of these proceedings. In her evidence, she claims that police pressure, the effects of drugs and memory loss as a result of a concussion inform the false nature of her statements.
[4] In a Khelawon [1] application, the Crown seeks to have those statements admitted for their truth. In considering the application, I will review the complainant’s evidence as it unfolds in this blended proceeding.
The Recanting Witness
[5] J.J., age 31, met Mr. Buchanan in the summer of 2018. She has been an escort since age 21. She suffers from spina bifida and receives ODSP. She claims to have a bad back that prevents her from holding a regular job. She says she abuses drugs and that her memory has been affected by a concussion suffered at the hand of her sister’s boyfriend about 8 months prior to meeting the defendant.
[6] In her testimony, she sought to deny or unravel what she told two different police officers. She blamed herself for her troubles. What follows is a review of this witness’s stepping back from the material elements in her statements in the course of her testimonial revision exonerating the defendant.
[7] J.J. told the court that she and Mr. Buchanan lived together for 4-5 months, mostly with her parents. The relationship was good at first. She said the defendant worked as a dishwasher but quit after 3-4 months because he wasn’t being paid.
[8] Adopting a self-blame narrative, J.J. testified that once the defendant moved in with her, she developed a bad attitude and kept fighting with him. Minimizing his role, she says Amari sometimes didn’t stay with her because he had access to his mother’s home, as well as a residence he shared with a friend.
[9] J.J.”s revisions included distancing the defendant from her time escorting men, although she says she started working again about once a month because they were spending too much money. She insists it was her choice. She serviced her clients in her car or in their home. She claims Amari never pressured her to see clients. She contends that he wanted her to quit escorting. She says he asked her to marry him.
[10] The unravelling of her statements continued during her lengthy examination-in-chief. She claims not to recall his suggesting she find other girls to work for them. She insists he never took her proceeds, rather she shared them because they were a couple. She says she willingly gave him the monies or just left the proceeds in her car after the sessions. She does not now recall him questioning her on her whereabouts or how much she made, nor, she says, did he ever search her. She denies he communicated with or collected funds from her clients.
[11] She went on in this vein to tell the court that Mr. Buchanan never drove her to her engagements, did not set rules, nor did he impose restrictions on her. She does not now recall his warning her not to have sex with black men, nor his threats to her family, all of which is at odds with what she told the police.
[12] The complainant says their relationship deteriorated because of drug abuse and the fact she was always arguing with him. She now says only this, and their lack of money, got them kicked out of her mother’s home. They lived in her car, relying on her ODSP, her credit card and monies borrowed from her sister and parents.
[13] She now denies she feared being beaten for not obeying Amari or failing to get drugs for him. She draws a blank on the defendant having punched her dog.
[14] J.J. acknowledges being assaulted by the defendant in Nov. 2018, in relation to which he pled guilty to 4 counts and served time. However, in a characteristic revisionist pose, she says she started the fight that led to his arrest and blames herself for her own injuries. But she then admits he assaulted her every couple of weeks when she argued with him. She now denies he ever pulled a knife on her.
[15] Contrary to her prior complaint, J.J. claims not to recall telling the defendant during these episodes of violence that if he were going to kill her to just do it, but not by choking. Nor does she now remember him saying that if he did, he would commit suicide rather than go to jail.
[16] During her contentious examination, J.J. claimed to have warned the police that if they did not end this prosecution, she would commit suicide. She demanded the Crown stop her ‘humiliating’ questions. She wants this proceeding shut down because she feels Amari has served his time.
[17] J.J. says she wants to get back with the defendant. She insists he didn’t criticize her for speaking to the police, an improbable assertion. She wants the police to know that everything she told them was a lie. In referring in one of her statements to Amari as a pimp, she now says she meant a ‘smooth talker’, a rather disingenuous answer that highlights her effort to switch sides.
[18] J.J. claims not to remember much of what she told the police, blaming the effect on her of the concussion. In her testimony, I observed her, rather, to be articulate and responsive to questions, although hostile in demeanour. On the evidence, I infer her lack of recall to be contrived and her focus the unravelling of her prior allegations.
[19] Her purported memory loss papers over just about every material detail she provided in her statements. For example, she doesn’t remember the following: threats to her family; that the accused told her he expected her to take care of him; that the defendant’s mother called her after he was in jail and that she sent her money; that she heard about a trap line from the jail that would connect her to Amari by phone; nor does she recall him phoning her during this time.
[20] There is more. She does not remember that an inmate phoned her on the defendant’s behalf, nor that Amari called her to say he knew she painted her car rims, indicating he was having her watched. She does not recall telling P.C. Henry that she was called from his mother’s cell phone.
[21] J.J.’s new narrative is that she was harassed by P.C. Reynolds to come in to give her 2-hour statement and that she did so, after failing to show up the first time, to please the officer so he would leave her alone after that. Two hours is a lot of pleasing. It is significant she concedes that when she gave this statement, she was telling the truth and doing her best to be accurate.
Pandemic Delay
[22] J.J. completed this portion of her testimony on Feb 19. Because of the pandemic, the matter was delayed until July 20, 2020. On that day, she carried on attempting to unravel any prior evidence or out-of-court statements by her that implicated Mr. Buchanan.
[23] She also did so in a disrespectful manner, being personally disparaging of the Crown. She went on to provide blanket denials to allegations she had made to the police that she was intimidated, assaulted and made a victim of human trafficking. The litany of her denials was all-encompassing. She said that when she spoke to the police, she was high and ravaged by a concussion, an assertion belied by the focus and clarity of her statements. She suggested the police made stuff up. In my view of her evidence, on substance and demeanour, she lacked even a modicum of credibility.
[24] Some significant portions of the recanting post-pandemic portion of her testimony are repetitive and include: her decision to be a sex trade worker had nothing to do with the accused; he never asked her to find girls to work for him in the sex trade; she never escorted when she was with him; the defendant never took any of her money earned from escorting; they were engaged, so their money was shared; she denied referring to him as her pimp; he never took her phone; he did not assault her almost every day, as she previously alleged, rather they merely fought a lot; she was never injured; she never saw him with a knife; he never threatened to put a curling iron up her vagina and burn her ovaries; she never felt he would kill her; she denied getting phone calls from the accused from the jail; she did not give his mother money to set up a trap line to talk to the defendant from the jail; and the police switched everything she said to them, telling her to lie when giving evidence.
[25] Following an s. 9(2), then s. 9(1) application by the Crown, I allowed Ms. Orlando to cross-examine the complainant at large because of her adversity, as well as the significant inconsistencies in her testimony and as compared with her statements to the police. In cross-examination, she lied easily and once again openly expressed her hostility to the Crown and the Court.
[26] Examples abound. On July 20, she says she was not being truthful in her evidence. And while she understood she could get in trouble for lying to the police, she says she does not care and now indicates that she was not being truthful when she told the authorities that the defendant assaulted her 10 times. She says she lied when she told the police that the accused, while in custody, had people watching her, as she did when she reported receiving calls from the jail from Mr Buchanan or people on his behalf.
[27] She carried on in this vein. She disclaims some screen shots she provided to the police, some of which included her contacting the defendant’s mother, as well as a text from her sister that the accused, in custody, was asking for her phone number.
[28] J.J. then went on the attack. She said that what the court was doing was evil, that the prosecution was racist and that this process was torturing her. She called the Crown “more evil” than the defendant. She could not have been more transparent about her disdain for the process and what team she was on.
[29] On the next date, July 23, J.J. failed to return from the morning recess. On Aug. 5, she was arrested on a material witness warrant. On the next day, Aug. 6, she doubled down. She told the court her statements to the police were based on lies. She said it was not true that Amari had her and her family members’ phone numbers. She says she did not tell the police that Amari told her she owed him because of the charges she initiated. She said the allegations of human trafficking were false.
[30] The series of denials continued. In a bizarre assertion, J.J. said she herself was evil for seeking help from the police. She accused the “lying-ass” cop, P.C. Henry, of making up her words. She accused “that dirty cop”, D.C. Reynolds, of posting one of her escort ads. She claimed he texted her that she could tell the court she lied because he had lied. No text was produced. The contempt for her oath was transparent. Her evidence is not worthy of credit.
[31] If there were doubt about her intent, it was made clear in an email she sent on Aug. 28 to Ms. Orlando, one she conceded she probably sent. I admitted it into evidence. In it, she said, in part: “I…want Amari back now. If I have to say this was all a lie and I was forced to do this, then your leaving me no choice but to save the person I love”. She added, “…he has done his time…I’m please begging you again don’t do this to me…all I asking is to give him another chance with me…”. She said the quiet part out loud.
Are the Police Statements Admissible for their Truth?
Positions of the Parties
[32] The Crown submits that these two hearsay statements are admissible on a principled basis, that is, they are both necessary and reliable. Necessary, because J.J. is a recanting witness. Reliable, because, she says, the evidence supports a finding of threshold reliability on the basis that there are circumstantial guarantees of the statements’ trustworthiness.
[33] Ms. Orlando accurately sets out the three indicia of reliability as including the oath, or its circumstantial equivalent; videotaping of the statement, permitting assessment of both accuracy and demeanour; and a full opportunity to cross-examine the witness, perhaps the most important criterion [2].
[34] Mr. Rosemond, for the defence, concedes necessity [3], but says the Crown has fallen short of establishing threshold reliability. He submits that J.J. was harassed and pressured by, in particular, D.C. Reynolds, to inculpate the defendant. He says, in addition, that the worth of her statements was diminished by the effect of drugs and her memory suspect from the impact of the concussion. He suggests the complainant was motivated to lie by jealousy over Amari’s new ‘girl’, as well as to give the police what they wanted in return for help with her own charges.
[35] Mr. Rosemond submits, as well, that given J.J.’s seeming cognitive decline, the defence is deprived of the ability to meaningfully cross-examine her. He says, in addition, that even were I to find threshold reliability, I should exercise my discretion to exclude the statements as dangerous to admit for their truth, as that would adversely impact the defendant’s fair trial interests.
The Khelawon Principles
[36] Khelawon builds on the principle in B.(K.G.) that presumptive inadmissibility of hearsay evidence is overcome where its admission is both necessary and reliable [4]. A witness that recants evidence considered relevant will generally lead a court to find necessity [5], as in this case. Regarding reliability, the Crown need only establish threshold reliability that is concerned with “whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness” [6]. Stated otherwise, does the hearsay statement exhibit “sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement” [7].
[37] In Bradshaw, Karakatsanis J. viewed this reliability imperative as protecting the integrity of the truth-seeking function of a fair trial, where the circumstances surrounding the taking of the hearsay evidence permits a meaningful investigation of the declarant’s perception, memory, narration or sincerity [8]. The authorities hold that a video recording of the statement, made under oath or subject to a warning of the consequences of lying, and some form of cross-examination at trial will assist the trier of fact in evaluating the truth and accuracy of the evidence [9].
[38] Justice Duncan’s trial decision in Jeffers [10] is helpful in that its facts bear some distinct similarity to the allegations in this case. In Jeffers, the defendant was charged with human trafficking. The complainant gave a lengthy, cautioned KGB statement under oath that was recorded. She later provided an unsworn videotaped statement alleging the accused pressured her to swear an affidavit that her first statement was false. She said that as a result she feared for her safety.
[39] It turned out that the complainant was a reluctant witness. She failed to attend court and was arrested on a warrant. In her testimony, she re-characterized her relationship with the accused as one of friendship and mutual business partnership. Of significance, she said her KGB statements were ‘stretched’, but not false. Her text messages inculpated the accused. In cross-examination, she admitted that which favoured the defence.
[40] Justice Duncan described the KGB rule as one “designed to advance the truth-seeking function of the courts and also to reduce the potential benefit that could be achieved by witness intimidation or improper influence” [11]. In this case, Justice Duncan viewed the complainant’s KGB statement as a “spontaneous narrative” that was given without prompting or leading. He found her KGB statements to contain “an extraordinary amount of detail” in which the complainant appeared to be “very open and candid”.
[41] His review of the videotape led him to reject the complainant’s evidence that she gave her “false” statement both because she was under the influence of cocaine and as a result of pressure to please the police. He saw her as “perfectly lucid and sensible throughout”, not restless, distracted or impaired in her thinking. He found the notion of police pressure rebutted by her I-Phone notes [12].
Application to the Case at Bar
[42] J.J. is no stranger to the criminal process. As noted, a victim of multiple prior assaults by the defendant, she provided a prior KGB statement to the police under oath on Jan. 5, 2019. She had also spoken to the police about Amari on other occasions. I observed her to be assertive and street smart.
[43] Being cautioned about lying to the police and promising to tell the truth in a statement are straightforward concepts easily understood. Moreover, an oath is not an absolute requirement for a finding of the statement’s reliability [13]. Rather, an acceptable substitute for the oath is from “evidence from which it can reasonably be inferred that when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth and may serve as a proxy for an oath” [14].
[44] In this regard, context is important, and compliance a matter of character and choice. Regarding the first statement on May 15, the complainant sought the assistance of the police in order to stop the defendant’s calls from the jail that contained implicit threats. On the second, on June 4, J.J. drove to the police station and, following a KGB caution, provided a lengthy, detailed statement about her treatment by the defendant.
The May 15 Statement
[45] J.J. made clear her reasons for initiating contact with P.C. Henry. She told him right away, “I just feel anxiety about the whole…situation”, later indicating that the defendant said he had people watching her. She went on to say, in part, “I have to have fear and like worry that like people are coming for me…I don’t feel like I can even protect myself at this point”. She wanted this officer’s help.
[46] P.C. Henry reminded J.J. of the oath and KGB caution given her the previous January. He warned her about the consequences of lying to the police and the importance of telling the truth, which she promised to do. She was told she could be prosecuted for ‘blatantly’ lying. That was a poor choice of words, but the message was clear.
[47] In her statement, J.J. was articulate, responsive to questions and gave detailed answers for 45 minutes. I drew no inference from my observations of her in the videotape that she struggled with either memory or sobriety. She was, rather, focussed on her safety. She didn’t hold back.
The June 4 Statement
[48] A few weeks later, J.J. was asked to come in to speak to D.C. Reynolds about the toll on her of the physical and mental abuse to which she was allegedly subject at the hand of the accused. She drove herself to the station. She said the only reason she came in was to create a record in the event, as she feared, that her life was at risk. She spoke openly, in a fulsome manner without hesitation for over 2 hours, at one point, crying over what she says she had endured.
[49] In a KGB caution, she was once again warned of the result of lying, reference being made in that regard to specific provisions of the Criminal Code. Mr. Rosemond suggests that the formality of the oath, missing here, was necessary to bring home to this contemptuous and incredible witness the consequences of misleading the police.
[50] I take a contrary view. J.J. sometimes lives on the margins. To survive, her relationships appear to be transactional and her attachment to notions of honesty and integrity situational. An oath would hold little sway to a person of this character and mindset. I am of the view, on this evidence, that consequences bearing on her liberty would best draw her attention to the seriousness of making a statement to the police and the importance of telling the truth.
[51] J.J. spoke openly about her relationship with Amari, what she suffered, what she feared. She gave lengthy, substantive answers without hesitation. There was not a hint of incoherence or struggle with recall.
[52] However, by the time she testified, J.J. was openly hostile to the Crown. She had decided Amari had served enough time. She wanted this trial shut down. As she said in her Aug. 28 email to Ms. Orlando, “If I have to say this was all a lie and I was forced to do this then your leaving me no choice but to save the person I love”.
[53] This email is a feature of electronic data that “is often more reliable than recollections or descriptions offered by eyewitnesses, even those under oath” [15]. It has circumstantial relevance here on the question of whether the Crown has met the test for establishing threshold reliability regarding the police statements.
[54] In her testimony, J.J. attempted to unravel the very serious allegations she raised in her statements. She recharacterized her sex trade relationship with Amari as benign. She denied any material allegation in her statements that inculpated the accused or permitted an inference he controlled her. She claimed that drug use and memory loss from the concussion explained the nature of her evidence. She complained that the police pressured her to make things up. Her contempt for this process and its participants was palpable. I didn’t believe her.
Conclusion
[55] The test for whether the hearsay dangers that apply in this case are sufficiently overcome to warrant a finding of threshold reliability is one on a balance of probabilities. [16] On this evidence, I am satisfied that the complainant spoke to the police for her own reasons, appreciated the seriousness of doing so and understood the consequences of lying. As well, the videotapes confirm the accuracy of the statements and provide an opportunity to assess her demeanour. The defence will also have a full opportunity to cross-examine J.J. on the statements and at large.
[56] I am of the view that there are sufficient indicia of reliability to meet the threshold test for admissibility. That J.J. threatened to testify she lied about the statements tends to enhance the inference that the contrary is true. The police statements will be admitted into evidence. Ultimate reliability remains to be determined as part of the weighing process.
April 30, 2021 Signed: Justice L. Feldman
[1] R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57 (S.C.C.) [2] R. v. B.(K.G.), [1993] 1 S.C.R. 740, at pp. 786-796 [3] B.(K.G.), at pp. 796-797; R. v. Taylor, 2015 ONCA 448, [2015] O.J. No. 3234 (Ont. C.A.), at para. 69 [4] Khelawon, at p. 815 [5] R. v. Trieu, [2005] O.J. No. 1083 (Ont. C.A.), at para. 26; R. v. Adjei, 2013 ONCA 512, at para. 16 [6] Khelawon, at p. 816 [7] R. v. Hawkins, 3 S.C.R. 1043, at para. 75 [8] R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No 35 (S.C.C.), at para. 26 [9] Bradshaw, at para. 28 [10] R. v. Jeffers, (unreported, Feb. 20/20) (OCJ) [11] Jeffers, at para. 32 [12] Jeffers, at para. 33 [13] Taylor, at para. 73 [14] Taylor, at para. 73 [15] R. v. Poony, 2018 BCCA 356, at para. 34 [16] R. v. Moazami, 2013 BCSC 2399, at para. 13