Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 11 10 COURT FILE No.: Brampton 19-13075

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRYAN BABIC

Before: Justice Paul T. O’Marra

Heard on: November 9, 2021

Ruling on the admissibility of ‘Past Recollection Recorded,’ and Threshold Reliability released on: November 10, 2021

Counsel: D’Arcy Leitch, for the Crown Vince Houvardas, for the accused Bryan Babic

P.T. O’MARRA J.:

[1] This is my ruling on the Crown's application to admit Nicholas Rankin's statement under the 'past recollection recorded' exception to the hearsay rule or in the alternative, that Nicholas Rankin’s statement meets the reliability threshold due to both its procedural and substantive reliability.

[2] I intend to deal with the applications separately.

Introduction

[3] Mr. Babic is charged with a home invasion style robbery of Nicholas Rankin while wearing a mask. It is alleged that on June 24, 2019, he entered Mr. Rankin's parents' townhouse in the afternoon. Mr. Rankin was asleep at the time in his bedroom. It is alleged that Mr. Babic, masked and armed with a wrench entered the bedroom to rob Mr. Rankin.

[4] Mr. Rankin awoke to find the assailant in his bedroom. He fled the bedroom and told his mother and stepfather, Bryan Malina that an intruder was in the room.

[5] Eventually the intruder fled the residence taking a two designer bags, clothes, and two ounces of marijuana.

[6] Mr. Rankin testified about the robbery; however, he could not recall, or had no memory of the description of the assailant and whether he recognized the assailant.

[7] The Crown applied under section 9(2) of the Canada Evidence Act (CEA), to cross-examine Mr. Rankin on what was alleged to be prior inconsistent statements in his police statement dated June 24, 2019 which was taken on the same day as the robbery. Following a voir dire, I permitted the Crown to cross-examine Mr. Rankin on his statement to Det. Cst. Henderson regarding his familiarity and description of his assailant.

[8] Mr. Rankin's statement included the following evidence regarding the assailant's physical details.

I recognized him as someone I used to work with at Manitoulin Transport as a forklift operator. He was working for Manitoulin and I was working for Metro Express Toronto, same ware­house. I don’t know his name, maybe Jason. 22-26, Black hair, - 5’10”, chunkier guy, about ear length. His girlfriend works at Cooper’s bar near SQ1, Black hair, skinny white, 22-23, my stepdad chased him to Petro.

[9] The cross-examination by the Crown did not lead to the adoption of the statement or even the permitted areas of cross-examination. Mr. Rankin's evidence included the following:

• He just woke up and was sleepy and confused.
• It was a blur to him.
• It happened so long ago it was hard to remember.
• Did not even remember writing a statement or giving a statement.
• He stated that he did not remember numerous times.
• He felt that a former friend from his workplace had something to do with the robbery. The person had come to his house knew his way around his house.
• He did not know Mr. Babic.
• He felt that the police mixed up his stepfather's statement with his statement. In other words, he never provided the details of the assailant. His stepfather was asked to describe the assailant.
• He confirmed that his initials were on each page of his statement.
• He was aware that lying to the police can have serious consequences.
• He agreed that he was trying to be truthful to the police. But he did not recall speaking to the police.
• When he accused one of his friends, he agreed that he was just guessing.
• Manitoulin Express was only brought up because he had been let go after his company was unionized. He had falling out with his friends that worked at Manitoulin and he accused the person that he knew from there.

[10] As part of the voir dire, the Crown indicated that it wished to consider an application to admit Mr. Rankin's statement into evidence for the truth of its contents.

[11] I permitted the Crown to call further evidence from Mr. Rankin, and as well as Det. Cst. Henderson, who took the statement.

[12] The Crown's position is that Mr. Rankin's statement to the police meets the reliability threshold because both its procedural and substantive reliability.

[13] The defence position is that the Crown has failed to meet its burden of establishing that the hearsay statement is admissible for the truth because there is neither procedural nor substantive reliability.

[14] I intend at this point in to address first address the Crown's initial application to admit the past recollection recorded portions of Mr. Rankin's statement.

The Crown's Past Recollection Recorded Application

The law:

[15] The basic rule regarding past recollection recorded is set out in Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, c. 28, s. 744 et seq. which provides:

1. The past recollection must have been recorded in some reliable way.
2. At the time it must have been sufficiently fresh and vivid to be probably accurate.
3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he "knew it to be true at the time"; and
4. The original record itself must be used if it is procurable.

[16] This rule requires the witness to affirm that he "knew it to be true at the time," and the original record itself must be used if procurable.

[17] If this rule applies, a writing or memorandum including audio or videotape previously made by a witness becomes the witness' evidence. If admitted by the court, the item is filed as an exhibit and may be used by the court as the evidence of the witness for the truth of its contents. The court must always assess the reliability of such evidence prior to making a final determination of admissibility. For example, see R. v. Alldred, 2007 ONCA 600 and R. v. Grix, 2013 ONCJ 617.

[18] In R. v. Richardson, 2003 ONCA 3896 the Ontario Court of Appeal set out the following criteria for admissibility under the doctrine of past recollection recorded:

1. Reliable record: The past recollections must be recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used it if is available.
2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

[19] This rule of admissibility of evidence is only available when the witness has a genuine loss or absence of memory.

[20] In R. v. Chretien, 2009 ONSC 810, at paras. 10 to 23, the court held that in order to rely on the past recollection recorded rule, the court must be satisfied the witness' loss of memory is genuine. If the court finds that the loss of memory is not genuine, then the rule cannot be used, but the statement may be otherwise admissible pursuant to other doctrines including a principled approach to hearsay. See: Grix, at para. 13.

Analysis:

[21] The Crown submits that the four-prong test set out in Richardson has been satisfied. First, that there is a reliable record which is reasonably accurate, being the written statement prepared by Det. Cst. Henderson. Each page was initialed by Mr. Rankin. The statement was made contemporaneously with the events. Secondly, the Crown submits that the statement was made while the matters were still fresh in the memory of Mr. Rankin so to be likely accurate. Thirdly, the Crown submits that when Mr. Rankin testified that he had no memory of the recorded events. Fourth, that the witness has vouched for the accuracy, or the truthfulness of the assertions of his statement.

[22] Mr. Houvardas does not quarrel with the first, second and third prongs of the Richardson test. However, the defence takes exception with the fourth prong, that Mr. Rankin has vouched for the truthfulness or the accuracy of the contents of his statement.

[23] He cites para. 16 of the Richardson decision which states the following.

With a view to refreshing her memory about what else Edwards said to her in the stairwell, the Crown directed N.B. to a statement that she made to the police approximately 16 hours after the events in issue. After reviewing the statement, N.B. testified that her memory was not refreshed. She could not remember the additional conversation referred to in the statement. She testified, however, that at the time she made the statement, the events were fresh in her mind and that she was trying to be accurate and truthful. The trial was 2 ½ years after the events.

[24] While it was true that Mr. Rankin did not review his statement, but it was read to him by the Crown. He did not concede that his memory was refreshed. Although he testified, he had no memory of what he said to the police, he did concede in cross-examination that he was truthful when he spoke to the police a few hours after the event.

[25] I am rejecting the Crown's application to adduce Mr. Rankin's police statement as past recollection recorded as I am not satisfied that Mr. Rankin has an absence or no memory, because he testified, he has some memory. I am not convinced that his loss of memory is genuine.

[26] In my view, Mr. Rankin has a selective memory. He did not want to discuss certain details including anything that had to do with the being familiar with the assailant, a description of the assailant or any possible connection between the home invasion and his place of employment at the time of the robbery.

[27] However, Mr. Rankin had memory of suddenly being awoken from his sleep confronted by a man in his bedroom. He was confused and sleepy. He testified regarding details of fleeing to his mother and stepfather's room, the assailant trashing his room, the stepfather and the assailant struggling with the door, the assailant's flight down the stairs, returning to his mother's room and calling the police. He recalled the fact the assailant had a mask covering his face and was holding a wrench. He recalled speaking to the police to some degree.

[28] Absence of memory is not the same as a desire not to discuss the matter or turn one's mind to it. See: Grix, para 18.

[29] It is my view; Mr. Rankin is a reluctant witness and it is out of personal convenience that he does not wish to recall the details of what happened in his bedroom or the details of the assailant.

[30] As stated in R. v. Fliss, 2002 SCC 16, 161 C.C.C. (3d) 225, at para. 64, "The admission of past recollection recorded is an exceptional procedure and the conditions precedent to its reception should be clearly satisfied."

[31] I am not satisfied that there is an actual loss of memory, and if there is a memory loss, I am not at all satisfied that it is genuine.

[32] Accordingly, the application to adduce the police statement given by Mr. Rankin as past recollection is dismissed.

[33] Now I turn to Crown's application to admit Mr. Rankin's prior statement to the police into evidence for the truth of its contents.

The Crown's KGB/Bradshaw Application

The law:

[34] Under the principled approach to the admissibility of hearsay evidence, the evidence may be admitted for its truth when the party seeking to tender it establishes, on a balance of probabilities, that the criteria of necessity and threshold reliability are met.

[35] In this case, the only issue to be determined is if the Crown has met its burden of threshold reliability.

[36] In Bradshaw, Karakatsanis J. said the following respecting how threshold reliability is to be assessed at paras. 26-27:

26 ...Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, 1996 SCC 154, [1996] 3 S.C.R. 1043, at para. 75). 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.

27 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) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

[37] It is clear from Bradshaw, at para. 32, as well as from the Court of Appeal's subsequent decisions in R. v. Mohamed, 2018 ONCA 966, at para. 92, and R. v. Charlton, 2019 ONCA 400, at para. 30, that threshold reliability may be established on the basis of either the statement's substantive reliability or its procedural reliability, or a combination of both substantive and procedural reliability. As was set out by Watt J.A. in Mohamed at para. 115:

115 ... The alternatives are not mutually exclusive. Where the elements of one have been established on a balance of probabilities, it is no answer for an opponent to contend that the evidence does not satisfy the other. Procedural reliability and substantive reliability afford two routes to the same destination -- threshold reliability. They are equivalents in the quest to establish threshold reliability.

[38] A summary of the law that applies to the threshold reliability requirement was provided in R. v. Srun, 2019 ONCA 453 by Watt J.A. as follows:

The reliability requirement may be established in either or both of two ways.

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 63. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 28; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92-95.

Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process: Khelawon, at paras. 49, 62, 107; Bradshaw, at para. 31.

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: Fredericks v. R., 2018 NBCA 56, 365 C.C.C. (3d) 498, at para. 77; Bradshaw, at para. 32.

Even where the proponent of hearsay evidence satisfies the necessity and reliability requirements of the principled approach to hearsay, it does not follow that the hearsay statement will be admitted. The trial judge retains a discretion to exclude otherwise admissible hearsay where its probative value is outweighed by its prejudicial effect: Hawkins, at para. 85; Khelawon, at paras. 3, 49; Bradshaw, at para. 24. But where the proponent of the evidence is an accused, this exclusionary discretion becomes engaged only where the probative value of the statement is substantially outweighed by its prejudicial effect: R. v. Seaboyer; R. v. Gayme, 1991 SCC 76, [1991] 2 S.C.R. 577, at p. 611.

Analysis:

Procedural Reliability

[39] Mr. Rankin's statement was not video, or audio recorded. The statement provided was set out in a standard police form titled "Statement of a Witness." It was written out and paraphrased by Det. Cst. Henderson. I noted that a statement is reduced to writing and the witness is not recorded verbatim by video or audio recording the trier of fact is deprived of the ability to assess the witness's demeanour in answering questions and recounting the events.

[40] Moreover, the format of the written statement is like a script or prose and with out any metrical structure. The statement is really Det. Cst. Henderson's understanding and interpretation of the words spoken by Mr. Rankin. Furthermore, the only recorded quotation from Mr. Rankin was his recollection of the very brief conversation that he had with the intruder in his bedroom. He asked the assailant what are you doing? The officer recorded in the statement "what the fuck do you think I am doing?" Beyond that there are no other quotations attributable to Mr. Rankin. As I mentioned, this was not an interview that contained many questions. In fact, only the following four questions were asked at the end of the statement:

Q. What was taken? A. - Weed (*2 ounces)

• 2 designer bags, Faragamo (side bag), Gucci (hip pouch) Phone, iphone, black, cracked screen -wallet, with cards, TD bank and credit card, d/l [driver’s license], license Q. Has he ever been in your house before? A. Never once. Q. How does he know [where] you live? A. I have a feeling someone from work told him where I live. Q. Who told him? A. Karel Watkins, [Cell number XXX-XXX-XXXX] He was here a couple weeks ago when 10 ppl [people] were here and someone took $3000 from open safe.

[41] The statement was not taken under oath, nor was there any formal police caution or warning that Mr. Rankin could be charged with if he lied. The officer testified that he did advise Mr. Rankin that it was important to tell the truth, despite not making a note of that discussion. He also testified that he told Mr. Rankin that he could get into trouble if he lied, despite not making a note of that either.

[42] In this case, I find that the absence of the oath administered to Mr. Rankin prior to making his statement has a negative impact on the procedural reliability of the statement. Despite that meaningful cross-examination is possible and the law is clear that procedural reliability can be established in the absence of an oath: R. v. Adjei, 2013 ONCA 512, at para. 36; B. (K.G.), at paras. 95-96. In my view, such a cross-examination was illusory, given Mr. Rankin's selective memory.

[43] The lack of a formal police caution in these circumstances was a concern. At the time Mr. Rankin was victim of a home invasion style robbery. Often this style of entry and invasion into a residence occasionally can be linked to drugs and proceeds from drug trafficking. I am not saying for one moment that was the motivation in this case, but the fact that Mr. Rankin disclosed to the officer that $3000 cash was recently stolen from a safe and that two ounces of marijuana was among the items stolen in the robbery, it may have been prudent to invoke a police caution as one of several critical parts of meeting threshold reliability.

[44] I have no way of knowing if Mr. Rankin was aware of the importance of telling the truth when speaking to the police at that time. I am not entirely satisfied that at the time he understood the importance of telling the truth in a way that a police caution would have resonated.

[45] Therefore, in these circumstances the Crown has not met its burden of demonstrating procedural reliability in respect of the hearsay statement.

Substantive Reliability

[46] Similarly, I have found that the Crown has not met its burden of establishing the substantive reliability of the hearsay statement. I am not satisfied sufficient hallmarks of substantive reliability exist, even in the absence of procedural safeguards. See: Bradshaw, paras. 27-28 & 30-32. In my view, the statement was not inherently trustworthy for these reasons.

[47] There are some aspects of Mr. Rankin's statement that were similar to his stepfather's statement. However, there a few external conflicts and differences in material aspects in his statement. Despite that both witnesses described a white, male, heavy or chunkier in his 20's, there was a discrepancy in the height of the assailant. Mr. Malina testified that the assailant was 6 '1," whereas Mr. Rankin estimated his height to be 5'10". Mr. Malina described the object in the assailant’s hand as a hatchet. Mr. Rankin described it as a silver wrench. In his statement, Mr. Rankin named "Jason" employed at Manitoulin Express as the person he suspected as the intruder, and not "Bryan," Mr. Babic's first name. Mr. Malina described the intruder in possession of a duffel bag that was wider than his waist, made of gym bag material. Mr. Rankin's statement does not contain any reference to the intruder carrying a large duffel bag. Finally, his testimony seemed to point an accusatory finger of blame towards two former friends at his work which was disclosed in his written statement.

[48] In my view, the statement is not sufficiently corroborative within the meaning of R. v. Bradshaw. The Crown has not established that the statement is sufficiently reliable to be admitted under the principled exception to the hearsay rule.

Released: November 10, 2021 Signed: Justice Paul T. O’Marra