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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY — (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2021-11-16 Central East Region

Between:

Her Majesty the Queen

— and —

Traci Mills, Arash Hatamabadi, Raymond Levesque, Kerry Malmholt, Phillip Miles and Adam Robins

Before: Justice J. Bliss

Heard on: October 18, 19, 20, 22, and November 10, 2021 Ruling on s.540(7) application released on: November 16, 2021

Counsel: C. Peters/M. Cousineau.................................................................... counsel for the Crown A. Paas........................................................................ counsel for the accused Traci Mills K. Schofield/S. Kimberg......................... counsel for the accused Arash Hatamabadi J. Fisher................................................... counsel for the accused Raymond Levesque E. Willschick..................................................... counsel for the accused Kerry Malmholt D. Molloy................................................................. counsel for the accused Phillip Miles G. Pickard............................................................ counsel for the accused Adam Robins

Bliss J.:

[1] On November 12, 2020, J.T. was provided with a bag containing a significant amount of cocaine and fentanyl by a man she identified to police as “Z”, who the police identified as “Ozz” or “Ozzie”, and who the prosecution will allege was Arash Hatamabadi. On November 14, 2020, J.T. was staying with Natalie Nobes and Nathan Palmer at the Pleasant Manor motel in Collingwood. She took the bag of drugs with her when she went to the Winners store in Collingwood where she said she discarded it in a dumpster. The bag and the drugs were found on a shelf inside the store on November 14, 2020. It was soon learned that the drugs were missing. When J.T., Nathan Palmer and Natalie Nobes returned to their room at the Pleasant Manor motel they were soon joined by a number of individuals who wanted to know where the drugs were. J.T. was the main focus of their attention. Their room was ransacked and the three were then taken to a rural property at 1788 County Road 7 in Clearview where J.T. was interrogated to reveal where the drugs were. As a result of their alleged participation in what the prosecution will allege was a kidnapping, Traci Mills, Arash Hatamabadi, Raymond Levesque, Candace Malmholt, Kerry Malmholt, Phillip Miles, Joshua Miller, and Adam Robins now face a variety of criminal charges including kidnapping while using a weapon, assault with a weapon, forcible confinement, point firearm, and for Phillip Miles, sexual assault with a weapon upon J.T. Arash Hatamabadi is also charged with trafficking by providing the drugs to J.T. on November 12, 2020. The identification of Arash Hatamabadi as “Z” or “Ozz” or “Ozzie”, along with the identification of other principals and parties to the kidnapping, is very much in issue.

[2] J.T. passed away in February, 2021. As a result, the Crown seeks to have four statements made by J.T. on November 15, 2020 admitted into evidence at this preliminary hearing pursuant to s. 540(7) of the Criminal Code. Those statements are:

1. Roadside statements of J.T. to Bill MacDonald on November 15, 2020
2. Statement taken on November 15, 2020 by the first police officer on scene, Cst. Dewell
3. Audio statement taken at the hospital by Cst. Prestage on November 15, 2020
4. Video statement taken at the Huronia West OPP detachment on November 15, 2020

[3] Section 540(7) provides that:

A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

[4] The respondents/defendants oppose the application. Counsel for Arash Hatamabadi took the lead in opposing the admission of all of J.T.’s statements as being neither credible nor trustworthy. Counsel for the other respondents adopted Mr. Hatamabadi’s position and some provided brief supplementary oral submissions in support of their collective position rejecting J.T’s statements as a whole. In her oral submissions, counsel for Mr. Hatamabadi posited an alternative argument that the assessment of J.T.’s credibility and trustworthiness when she spoke of how she received the drugs, who she received the drugs from, and how she got rid of the drugs at Winners can be parsed from the rest of her statements about the kidnapping and confinement and that I could, and should, find her statements up to the time she left the drugs at Winners on November 14, 2020 not to be credible or trustworthy, and consider separately whether the information she provided about the events that followed “Winners” is sufficiently credible or trustworthy to be received in evidence at this preliminary hearing.

The Law

The role of the Judge at a Preliminary hearing

[5] At a preliminary hearing, a judge is tasked with determining whether, pursuant to s. 548(1) of the Criminal Code, “there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction” or, “if in his opinion on the whole of the evidence no sufficient case is made out”, to discharge the accused.

[6] The question to be asked by the preliminary inquiry judge under s. 548(1) is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: United States v. Shephard, [1977] 2 S.C.R. 1067 at 1080; see also R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080. (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para 21)

[7] Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. If the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial. (Arcuri, para 22)

[8] Where the Crown has not presented direct evidence as to every element of the offence, the question is whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence. Answering this question requires the judge to engage in a limited weighing of the evidence because, “with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01… The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.” (Arcuri, para 23)

[9] A preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. The judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. This task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty. (Arcuri, para 1)

[10] The judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. (Arcuri, para 30). “Assessing the quality and reliability of the evidence, or weighing the evidence for competing inferences in determining whether there is sufficient evidence for committal is not permitted at this stage of the proceedings.” (R. v. Deschamplain, 2004 SCC 76 at para 15).

[11] Section 548(1)(b) requires the preliminary inquiry judge to consider “the whole of the evidence” that “has been taken” during the preliminary inquiry. The primary purpose of a preliminary inquiry is to “ascertain whether there is sufficient evidence to warrant committing the accused to trial”: R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. (Deschamplain, para 18). In considering the whole of the evidence, a preliminary hearing judge is entitled to consider the sufficiency of the evidence in determining whether there is “some evidence by which a jury, properly instructed could convict”. (Deschamplain, para 38)

What is meant by “credible or trustworthy” in s.540(7)?

[12] Section 540(7) provides that a “justice…may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case”.

[13] The applicant submits that the standard for assessing credibility or trustworthiness in the context of s.540(7) is whether there is a “prima facie air of reliability” and that the phrase “credible or trustworthy” should be given the same interpretation in s. 540(7) as it does in s.518(1)(e) in the context of a justice presiding at a bail hearing. That section provides that “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstance of the case”.

[14] The respondents submit that despite the same language, the standard is more “exacting” to reflect the different considerations at a bail hearing in which the justice’s function is to determine whether to detain or release an accused and conditions to be imposed, as contrasted with a preliminary hearing which requires the judge to determine the sufficiency of the evidence to commit for trial.

[15] There are distinctions between a bail hearing and preliminary hearing. At a bail hearing, the court is able to receive evidence and assign whatever weight it feels is appropriate in coming to its decision. At a preliminary inquiry, the court cannot weigh direct evidence and can only engage in a limited weighing of circumstantial evidence (see R. v. Arcuri, [2001] 2 S.C.R,. 828 at paras. 22-23). The court’s only task is to determine whether the Crown has shown a prima facie case; that there is some evidence on every essential element of the offence in question. If a statement admitted under section 540(7) provides evidence of every essential element of an offence, then committal must follow.

[16] The “prima facie air of reliability test” applied in the context of s. 540(7) was developed in R. v. Muzhikov, 2005 ONCJ 67, [2005] O.J. No. 866 (C.J.) and adopted by numerous courts including Ratushny J. in R v Francis, [2005] O.J. No. 2864 (S.C.J).

[17] In Muzhikov, at para 42, Wright J. found that “the use of the words ‘credibility’ and ‘trustworthiness’ are used in the same context as section 518 of the Criminal Code in that the evidence must have a prima facie air of reliability to allow a court to consider it as evidence, not sufficient to base a conviction upon, but rather toward consideration as to whether there is some evidence for a jury to properly consider at trial.”

[18] In Francis, Ratushny J. acknowledged the distinction between a preliminary hearing and bail hearing but described the consideration of whether the tendered information is “credible or trustworthy” as being only a threshold question of admissibility in the context of the screening function of a preliminary inquiry. Ratushny J. wrote:

[27] I think it clear, however, that what is not being referred to in subsection (7) is the ultimate consideration of the credibility of the intended evidence or the ultimate weighing of it, because of course that is to be left for the trier of fact at trial after all of the trial evidence has been heard. I agree with Wright J. in Muzhikov, supra, at para.42, that the information sought to be introduced under subsection (7) has to have at least a prima facie air of reliability to allow it be admitted on the preliminary inquiry toward a consideration as to whether there is some evidence for a jury to properly consider at trial. (emphasis added)

[28] I also think that subsection (7) deals with a lower evidentiary threshold than would be the case at trial…The subsection itself implies a lesser threshold of admissibility by allowing the receipt as evidence of “any information that would not otherwise be admissible”. The consideration of whether the tendered information is “credible or trustworthy” remains only a threshold question of admissibility in the context of the screening function of a preliminary inquiry, meant to protect the accused from having to deal with information that would not amount to being considered as any evidence at all upon which a reasonable trier of fact properly instructed could convict.

[19] Other court decisions also support the application of a “prima facie air of reliability test” to s.540(7) determinations. In R. v. Trac [2004] O.J. No. 370 at para 48-50, the court held that “the appropriate threshold test to be applied in determining credibility and trustworthiness is akin to what is applied already in the context of judicial interim release hearings, sentencing hearings and extradition hearings.” In that case, Shaw J. explained that “[i]f Parliament had intended for the higher threshold test of necessity and reliability as enunciated in the principled exception to the hearsay rule cases, Parliament would have included those words. The words “credibility” and “trustworthiness”, however, are found elsewhere in the Criminal Code, specifically, regarding judicial interim release hearings.”

[20] In R. v. Kirkpatrick, 2011 ONCJ 112, Marin J. referred to the earlier decisions in Francis, Sonier, and Muzhikov amongst others in holding that “credible or trustworthy” is to be interpreted as requiring a prima facie air of reliability as it is used in judicial interim hearings. Similarly, in R. v. Scott and Mohamed (unreported, April 6, 2018), Pirraglia J. relied on Francis and Kirkpatrick to find:

[13] The case law is well established that the test for “credible or trustworthy” in s. 540(7) is not an onerous one. Credibility does not have the same meaning as it would at trial. Nor does it mean the same as evidence which is “credible and reliable” as in the case of the principled exception to the hearsay rule. Rather, it is to be given the same meaning as in s. 518(e) of the criminal code in that, it must have a prima facie air of reliability sufficient to commit to trial.

[14] Given the nature of the preliminary inquiry, the limited onus on the Crown in applications under s. 540(7), and the low threshold for credible or trustworthy, the existence of inconsistencies between statements is not a ground to exclude the evidence. The role of the preliminary justice is limited to a determination whether sufficient evidence exists on each element of the offence to commit to trial. Evidence is not to be weighed. Ultimate reliability is a determination for trial.

[21] In R. v. Ali, 2015 ONCJ 765, [2015] O.J. No. 4201 (C.J.) Paciocco J. took issue with the approach that analogizes “trustworthy or credible” information at bail hearing with “trustworthy or credible” information at a s. 540(7) application, but importantly, adopted the “prima facie air of reliability” test.

[22] Paciocco J. captured the tension between the prohibition generally on a judge assessing credibility or trustworthiness at a preliminary hearing and the requirement to do so when determining admissibility on a s.540(7) application and the standard to be applied. As he explained:

4 Still, the meaning of [s.540(7)] remains unclear, even after a decade. This is in part because section 540(7) is puzzling in its design. Even though preliminary inquiry judges are generally prohibited from considering whether the evidence before them is credible or trustworthy, section 540(7) requires the preliminary inquiry judge to make a holding about credibility or trustworthiness as a precondition to admissibility. Section 540(7) also shares the language of the standard of admissibility with section 518 (e), dealing with bail hearings, despite significant differences between preliminary inquiries and bail decisions. Meanwhile, because section 540(7) requires a determination of "credibility or trustworthiness," the section raises questions about its relationship to the reliability inquiry under the principled hearsay exception.

6 The meaning of the term, "credible or trustworthy," has not been authoritatively defined. The bulk of the case law, however, including in this jurisdiction, endorses a formula requiring that to be admissible under section 540(7), information must have a "prima facie air of reliability."…Still, given the pervasive use of the term, "prima facie air of reliability" in the case law, I will be adopting this test.

8 …[T]he inquiry is into whether there is a basis for finding information credible or trustworthy, and not whether the preliminary inquiry judge is persuaded about its reliability.

9 Reference in the phrase to a "prima facie air" of reliability also makes clear that the "threshold reliability standard" that applies under section 540(7), is not as high as the "threshold reliability standard" that operates under the principled exception to the hearsay rule. The decision to take this position has been explained on two footings. First, courts have accepted that the standard under section 540(7) must be lower than the principled exception to the hearsay rule because section 540(7) accepts inadmissible evidence, making admissibility standards an inappropriate measure: R, v. Francis, supra at para. 28. Second, given the screening function of a preliminary inquiry and the objective of simplifying the process, requiring compliance with the reliability standard of the hearsay exception is too exacting.

21 In my view, the term "credible" necessarily has its normal meaning that it is "believable," based on its realistic potential for accuracy. This term therefore calls for the kind of criteria found in the first branch of Khelawon, namely, indicia showing that, on its face, the evidence is capable of being believed or credited.

22 Since the term "trustworthy," must be given its own independent meaning, it can be given its ordinary meaning as capturing information that can be trusted. Given the context and purpose of section 540(7), including that the term "credibility" already accounts for evidence that is capable on its face of being believed, the term "trustworthy" refers to information that the presiding judge could trust a trier of fact with, given the potential for that information to be evaluated rationally.

[23] In R. v. Chretien [2017] O.J. No. 7181 (C.J.) at para 6, Doody J. adopted the conclusions of Paciocco J. and Ratushny J. in Ali and Francis respectively on the meaning of s.540(7). I too agree with Paciocco J. and adopt his conclusions in Ali. In Chretien, Doody J. provided a helpful summary of the considerations governing the approach in s.540(7), the following of which I find to be of particular assistance in the case before me:

(c) Although the language of "credible or trustworthy" is the same language used in section 518 (e) with respect to bail hearings, the issue at a preliminary hearing -- whether there is evidence that, if believed, could allow a reasonable jury, properly instructed, to deliver a guilty verdict -- is quite different than that at a bail hearing -- whether detention is necessary to ensure the defendant's attendance in court, for the protection of the public, or to maintain confidence in the administration of justice. A purposive approach to the interpretation of the language in the two sections would not lead to a conclusion that they should mean the same thing. Furthermore, as Justice Paciocco notes at paragraph 40 of Ali, where there is a dispute about the facts at a bail hearing, the law in Ontario requires that it be resolved through sworn evidence or affidavit: R. v. West (1972), 9 C.C.C. (2d) 369 (Ont. C.A.); R. v. John, [2001] O.J. No. 3396 (S.C.J.). The practice of introducing evidence at a bail hearing by having an officer read from the disclosure file has as its basis implicit consent.

(d) "Credible or trustworthy" means information which is either credible or trustworthy is admissible under s. 540(7). It need not be both. (Ali, par. 18; R. v. P.(M.L.), [2008] B.C.J. No. 1440 (Prov. Ct.))

(e) The consideration of what information would meet the test of what the preliminary hearing judge considers "credible or trustworthy in the particular circumstances of the case" should not be circumscribed without reference to the situation of each case -- as Justice Ratushny noted at paragraph 26 of Francis, "that consideration has to be made on a case-by-case basis as the subsection itself requires it be made 'in the particular circumstances of the case'."

(f) The standard is, however, necessarily lower than that required for admissibility of the information at trial. Otherwise, there would be no need for s. 540(7). Lest there be any doubt, the provision refers to "information that would not otherwise be admissible". (Ali, par. 9; Francis, par. 28)

(g) "Credible" means "believable" in the sense of the kind of criteria used in the first branch of R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57 as indicia showing that, on its face, the evidence is capable of being believed or credited, and "trustworthy" means "information that a presiding judge could trust a trier of fact with" (Ali, paras. 21-2).

(h) Information tendered for admission under s. 540(7) must be assessed both with respect to what Justice Paciocco calls "indicia providing a threshold indication that the statement is sufficiently reliable or accurate to justify admitting for the trier of fact's consideration" or by "process-based indicia of reliability" that permit it to be evaluated, much like court testimony. (Ali, para. 13; see also R. v. Blackman (2006), 84 O.R. (3d) 292 at para. 49 (C.A.)).

(i) Because both s. 540(7) and the principled exception to the hearsay rule outlined in Khelawon require an evaluation of the "indicia of reliability" connected to the target evidence, guidance can be found in the hearsay decisions, keeping in mind that the evidence need not be demonstrably reliable enough to satisfy the principled hearsay exception in order to meet the s. 540(7) test -- "the difference is one of degree, not of kind". (Ali, paras. 11, 12 and 28)

(j) Even if the preliminary hearing judge is of the view that the necessary degree of credibility or trustworthiness has been met, he or she is given the discretion to refuse to admit the evidence, since the subsection says a judge "may" receive as evidence any such information -- "the provision creates authority to admit the information, but no obligation to do so." (Ali, par. 11)

( Chretien, para 7)

[24] Doody J. also set out a non-exhaustive list of factors to consider when assessing whether information or statement meets the “credible or trustworthy” standard:

(a) Whether the statement was made under oath or solemn affirmation (R. v. Muzhikov, 2005 ONCJ 67 at para. 27);

(b) Whether the declarant was cautioned about the importance of telling the truth or the potential consequences for not telling the truth (R. v. Inglis, 2006 ONCJ 154 at para. 35);

(c) Whether the declarant was cross-examined at the time of making of the statement;

(d) Whether the Crown was available for cross-examination at the preliminary hearing after the statement was introduced (Francis, at paras. 10-11; R. v. Ireland, 2005 ONCJ 218 at para. 27; Ali, at para. 25);

(e) Whether the statement was videotaped so the court could see the witness and observe the manner of questioning (R. v. S.P.I., 2005 NUCJ 3);

(f) Whether the statement was made voluntarily (Ali, at par. 54)

(g) Whether the interviewer used open-ended, non-leading questions (S.P.I.; R. v. J.P.L., 2008 ABPC 313; R. v. Ireland, 2005 ONCJ 218);

(h) Whether the declarant expressed uncertainty or suggested that he or she is unsure of the events of which he is speaking (Inglis, at para. 43);

(i) Whether significant areas relevant to the reliability of the declarant's statement were left unexplored or whether, in the alternative, the initial account of the declarant was followed up with detailed secondary questioning or ambiguous responses were probed with additional open-ended questions (Inglis at para. 41.; R. v. Kirkpatrick, 2011 ONCJ 112 at para. 53);

(j) The length of time between the events in Issue and the giving of the statement (Inglis, at para. 42); and

(k) Whether any confirmatory or corroborating evidence was either present or, if it was reasonable to expect that there would be such evidence, absent (R. v. Vaughn, 2009 BCPC 142 at para. 15; Kirkpatrick at para. 55; Ali, at para. 49).

(Chretien, para 7)

[25] In circumstances where a witness is unavailable to testify such as the case before me, the assessment of whether the information is credible or trustworthy must look to the circumstances surrounding the making of the statement(s) and the maker herself to determine whether it has the requisite “prima facie air of reliability”.

Are Multiple Statements Inadmissible as Prior Consistent Statements?

[26] One issue the respondents had raised challenging the admissibility of J.T.’s statements is that if all four statements were admitted, three would amount to prior consistent statements and would be inadmissible as such. Prior consistent statements are generally inadmissible because they are viewed as lacking probative value and self-serving (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Stirling, 2008 SCC 10, [2008] S.C.J. No. 10 at para 5). The prohibition rests on an impermissible assumption that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and so any admitted prior consistent statements should not be assessed for the truth of their contents. (Stirling, para 7)

[27] The respondent argued that only the last video-recorded statement at the police detachment should be considered for admission and that the others would therefore be prior consistent statements and inadmissible. The admission of a statement or statements under s.540(7) at a preliminary hearing considers whether there is a prima facie air of reliability to the statement. The exercise does not involve assessing how many times information is repeated, but the circumstances surrounding the making of the statement, whether there are circumstantial indicators of reliability including corroborative evidence, and whether a jury properly instructed could rely on the statement(s) to convict. In my view, there is a distinction between the use of a “prior consistent statement” to support their truth and the use of prior consistent statements to support their reliability in the context of a s.540(7) application at a preliminary hearing. J.T.’s statements, notwithstanding their number or potential consistency in their account, are entitled to be considered for their reliability and, in a sense, provide different pieces of a puzzle of what would have been put before the court had she been available to testify.

[28] In R. v. Bedada [2019] O.J. no. 1892 (C.J.) at para 18-19, the court noted that although circumstantial indicators of reliability were absent with respect to the complainant’s statement to police that was unsworn and without any caution about being untruthful or misleading police, the court looked at consistencies in her account and the alignment of the ancillary details of her statement with objectively provable evidence and corroborative facts. While there were questions about the truth of the complainant’s allegations, the court found the statement to be credible and trustworthy on a balance of probabilities.

[29] In a general sense, while considering each statement separately, the fact is that J.T. is obviously not available to testify. While each statement will be assessed separately, they must also be considered collectively in a broader sense of what J.T.’s evidence would have been. If any statement is admitted, the analysis involves assessing the information contained in the statement and whether it supports an essential element of any charge and committal for trial. Even if information is repeated, if it is not prima facie reliable, the fact it may be repeated will not make it reliable. As succinctly put, “consistency is a quality just as agreeable to lies as to the truth”. (R. v. D.O.L. [1991] M.J. No. 339 (C.A.))

Is the unavailability of a witness for cross-examination a relevant consideration under s.540(7)

[30] The Crown submits that the inability of the defence to cross-examine the declarant is not relevant when considering the admissibility of a statement under ss.(7). The respondents disagree. J.T. is deceased. Doody J. was faced with the same situation in Chretien and held the unavailability of the witness for cross-examination was a relevant consideration. He wrote: “The inability to cross-examine is one of the "particular circumstances of the case" that are required to be considered when determining whether the tendered statement is credible or trustworthy. In this case, cross-examination cannot be ordered under s. 540(9). In my view, this raises the standard to be met because the true meaning of the declarant cannot be brought out by cross-examination.” (Chretien, para 13)

[31] Doody J. explained that in his view “committal for trial based on a statement which is "credible or trustworthy" but does not meet either a traditional or principled hearsay exception, when the declarant is not available to be cross-examined at trial, would be a contradiction of the very purpose of a preliminary hearing because such a statement would not be available to be used at trial.” (Chretien, para 17). In coming to that conclusion, he referred, at paragraph 15, to the Supreme Court of Canada’s decision in United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 at paragraph 40 (decided after the coming into force of s. 540(7)) where McLachlin C.J. wrote for the Court:

I take as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict upon it. It follows that if a judge on an extradition hearing concludes that the evidence is manifestly unreliable, the judge should not order extradition under s. 29(1). Yet, under the current state of the law in Shephard, it appears that the judge is denied this possibility. Similarly, I take it as axiomatic that a person could not be committed to trial for an offence in Canada if the evidence put against the person is not available for trial. As Donald J.A., dissenting in Ortega stated, at para. 51:

If evidence is not available for trial it should not be used as a basis for committal. The concern goes well beyond modalities and rules of evidence, it goes to the heart of the question for the judge: whether there is enough evidence to put the requested person on trial.

[32] I note that McLachlin C.J. went on to acknowledge that “on the majority view in Shephard, committal may be ordered in the absence of certification that the evidence is available for trial.” (United States v. Ferras, para 40). It is from that that I am of the view that once a statement is found to be credible or trustworthy, that the judge does not possess a residual discretion not to admit the statement into evidence. The preliminary hearing judge’s task is not to determine a statement’s ultimate admissibility, but whether the information has that prima facie air of reliability sufficient to be admitted into evidence as credible or trustworthy as allowed under s.540(7). The language in s.540(7) explicitly allows for the admission of “information that would not otherwise be admissible but that the justice considers credible or trustworthy”. In my view, once that hurdle has been overcome, the justice is obligated to receive that evidence and consider it as a part of the whole of the evidence in determining the sufficiency of the evidence to commit for trial.

Can portions of a statement be excised?

[33] The respondents, specifically Mr. Hatamabadi, submit that in the circumstances of this case, that J.T.’s statements about the kidnapping attract different considerations than her statements about her acquisition of the drugs and drug possession/trafficking and that while submitting that I should find the entirety of J.T.’s statements to be incredible and untrustworthy, I could, and should, consider the information she provided “pre-Winners” separate from those of the events “post-Winners”. If, the respondent submits, I find J.T.’s post-Winners statements to be admissible, I can still find her statements about what happened pre-Winners to lack a prima facie air of reliability and can excise those portions of the statements from the rest of the statements found to be trustworthy and credible.

[34] The Crown submits that I have no jurisdiction to split or edit any of the statements tendered at this hearing. Essentially that admission is an all or nothing proposition. The respondents rely in part on an obiter comment of Doody J. in Chretien at paragraph 68 for my authority to admit some, but not all, of a statement:

While it may be possible for parts of the statement to be admitted into evidence (and this is not entirely clear to me, because doing so would potentially allow statements to be considered out of context) the Crown applied to admit the entire statement. While Crown counsel submitted, in answer to my question, that it was open to me to admit only part of the statement, she made no suggestion as to what portion should be considered for such treatment or why.

[35] The Crown’s response in this case is that Crown counsel in Chretien was clearly wrong to make such an admission and that it was not supported by any authority. The Crown further argues that as a novel issue of law, the onus is on the respondent to provide a clear basis for the court to accede to their request and no authority has been provided. This ignores the fact that it the Crown’s application to admit otherwise inadmissible statements by resort to s.540(7) of the Criminal Code or as a principled exception to the hearsay rule. It is the Crown who bears the burden of establishing that a statement or information has a prima facie air of reliability of its credibility and trustworthiness.

[36] The respondents refer to R. v. Toten, [1993] O.J. No. 1495 (C.A.) in support of its proposition that the power to edit statements arises out of a judge’s inherent power to control the proceedings including the admission of evidence. The Court of Appeal in Toten wrote: “The admissibility of statements tendered under s. 715.1 is also subject to other generally applicable forms of judicial control over the admission of evidence. Judges have always had the power to edit statements and other forms of testimonial evidence, to avoid prejudice and irrelevancies, where the editing process can be effected without distorting the nature of the evidence adduced. That authority flows, not from any statute, but from the judge's general power to control the proceedings: McWilliams, Canadian Criminal Evidence, 3rd. ed. (1993), at p. 15-87; Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, supra, note 36, at p. 195; R. v. Dubois (1986), 27 C.C.C. (3d) 325” (para 57)

[37] Section 540(7) refers to receipt of “information” including a statement made by a witness in writing or otherwise recorded. Statements may contain information about a number of topics. Some information about a subject may be credible or trustworthy while other information a declarant provides may not. The use of the word “information” contemplates the ability to consider the information provided and not necessarily the statement as a whole. It is not an all or nothing exercise. If there is information provided as part of a larger statement that does not meet the prima facie air of reliability standard and that “unreliable” portion can be excised without distorting the information that is admissible, then a court is able to do so. The considerations may be the same, but depending on the circumstances, they may lead to different conclusions.

[38] There is a difference between J.T.’s status as a “victim” of the kidnapping and J.T.’s status as potential or likely “co-perpetrator” or “unindicted conspirator” in relation to her involvement with the drugs. Mr. Hatamabadi argues that the portions of J.T.’s statements that relate to her possession of the drugs are unreliable and can be excised without causing the remainder of her statement to be distorted or losing context. (see also R. v. Broughton [2008] O.J. No. 3889 (S.C.J.) at para 116).

[39] While J.T.’s loss or discarding of the drugs underlies and provided the impetus for the kidnapping, J.T.’s status as victim in one case and potential party in the other does impact the respective inquiries as does the corroborative evidence or lack thereof. If the portions of J.T.’s statements in which she recounts how she came into possession of the drugs and what she did with them lack a prima facie air of reliability necessary for their admission under s.540(7), that information should be able to be excised provided it does not distort the rest of the statement or cause it to lose context. This excision is not usurping or assuming the function of the trier of fact. Excision of a severable portion of a statement that does not meet the prima facie reliability standard for admission is not the same as accepting all, some, or none of a witness’s testimony. As a preliminary hearing judge asked to determine the admission of evidence pursuant to s.540(7), if the subject matter of information sought to be admitted is distinct and the reliability assessment leads to a determination that the information lacks a prima facie air of reliability, that is a conclusion I am entitled to come to.

The Statements

[40] The information provided in J.T.’s statements fall under two general headings: Kidnapping and Drug Possession. I will deal first with the information and statements relating to the kidnapping and then the drug possession.

Kidnapping

[41] I accept that each of J.T.’s statements in which she details having been “kidnapped” are trustworthy or credible for purpose of their admission into evidence pursuant to s.540(7). I will explain why I have come to that conclusion notwithstanding the following deficiencies or failings in the process:

• No statement was made under oath or solemn affirmation
• J.T. was never cautioned about the importance of telling the truth or the potential consequences for not telling the truth
• She was never cross-examined at the time of making the statement or had known inconsistences put to her for explanation
• Only the last statement was videotaped but only showed the back or profile of the witness and denies an observer the ability to observe any non-verbal cues

[42] The following evidence, independent of J.T., corroborates the information she provided of a kidnapping and other events that occurred while at the property:

• Video surveillance and stills from the Pleasant Manor Motel that showing numerous individuals in multiple vehicles showing up outside the room where J.T., Nathan Palmer and Natalie Nobes were staying
• Individuals shown on video surveillance entering the room where J.T. was staying and damage to the room after they left
• Video surveillance showing J.T. entering the vehicle identified as belonging to Traci Mills and the vehicles then driving away from the motel
• Hand drawn map by J.T. detailing the property where she was taken to showing the location of a brown metal building, house, bus, vehicles, and trailers consistent with photographs and videos of 1788 County Rd. 7 Clearview taken by police
• Video evidence from police containing footage of the yellow Steve Madden bag and black underwear located inside the bag in Traci Mills’ trailer at 1788 County Rd. 7 consistent with J.T.’s statement to police that she was forced to take off her underwear and was sexually assaulted and that she left her underwear and yellow bag in Traci Mills’ trailer where it was found by police
• Key fob belonging to Nathan Palmer’s vehicle located at the property at 1788 County Road 7 found in Traci Mills’ personal property at CNCC
• Text messages from a Motorola cell phone seized from the property and purported to be from Raymond Levesque to “Ozz” on November 14, 2020 which corroborate J.T.’s statement that she was kept in a trailer on the property, that guns were pointed at her head, and her escape including: “my buddy that owns that gun he’s here and he’s going to find out everything that’s going on…” “And [J.] is in my camper right now and I will tell Tracy that answer her text” “Yeah cuz when you got a 12 gauge shotgun pointed out your head you usually speak it’s like on movies” “those people in the van they’re all still there” “I just left the farm I’m not there right now I’m just letting you know and I’ll be back in about an hour and I’m also looking for those people around the area could they be walking probably or something” “Is everything good or should I get rid of this phone and hide from but there’s still people going to come over the barn or the car so I just need to know”

Utterances to Bill MacDonald

[43] Bill MacDonald was driving southbound on County Road 7 towards Stayner on November 15, 2020 at about 10:30 a.m. when he saw taillights and headlights swerving in front him. He assumed there had been a traffic accident. Mr. MacDonald was provided with a map that was titled “1788 Simcoe County Rd 7” and testified that he was approximately where the “7” is marked at the crest of the hill. He saw two people on the side of the road and came to a stop to offer assistance. Almost immediately the two people ran to his car. The female, who would be J.T., went to his driver side window. He described her as extremely excited and screaming. She appeared terrified. The male, Nathan Palmer, was asking Mr. McDonald to call police. Mr. MacDonald was looking for signs of trauma as he was still thinking there must have been a car accident but did not see any injuries on either.

[44] When he put his window down, he heard J.T. ask him to call police and going on about how she got away from people and “Hells Angels” and saying something about guns. Once he heard “guns” he told them to get into his car. At some point he recalled her saying that they had taken her cell phones off her so there was no opportunity for her to call police.

[45] Mr. MacDonald was only about to recount bits and pieces of what J.T. said. He did not have his cell phone with him so he drove them to a gas station in Stayner where he knew there was a phone and they could call police. In the 5-10 minutes it took to drive to the gas station, they had calmed down. When he looked in his rear view mirror, the female appeared to be shaking, but she did not appear to have any injuries. When he arrived at the gas station, he told them to go in and call police. He waited until they went in then left.

[46] J.T.’s panicked demeanour and utterances are corroborative of a traumatic event having occurred. The map she drew for police detailed the property at 1788 Simcoe County Road 7 which was proximate to where Mr. McDonald saw J.T. trying to wave down vehicles, and her escape is corroborated by the exchanges in the text messages from a cell phone seized from the property by police.

[47] The independent corroborative evidence provides J.T.’s exchanges with Mr. MacDonald with sufficient reliability to be admitted as credible or trustworthy under s.540(7). I would also find them to be admissible as res gestae as the totality of the circumstances are such that the stress or pressure of the event is such that the possibility of concoction or deception can be safely discounted at least insofar as admissibility under s.540(7) is concerned.

Statement to Cst. Dewell

[48] Cst. Dewell received the radio call to attend either the Husky or Ultramar gas station on Highway 26 in Stayner at 11:32 a.m. on November 15, 2020. He was the first officer on scene. He arrived at the Husky gas station at 11:34 a.m. and located J.T. and Nathan Palmer. He was familiar with Nathan Palmer but had never met or dealt with J.T. previously but did note in his general report that she was known as a drug user and was well entrenched in the drug subculture.

[49] He testified that J.T. was very upset and crying. He had received some initial details about what had occurred but did not immediately begin asking questions as he wanted her to be seen by medical personnel first. When he did begin speaking with J.T., he could not recall where he did so from but believed the majority of the information came while she was in the ambulance. When he recorded what J.T. told him, his evidence was that sometimes it was word for word and sometimes it was summarized. He would usually use quotes when noting down a verbatim comment but did not do that in this case so could not say what she told him was “word for word”.

[50] His evidence was that J.T. indicated she had been “raped with a pole” and held against her will. He had made a note that she had been “sodomized with a pole” but conceded that those were his words not hers. J.T. spoke about having been provided with a bag of drugs by a male named “Z” (pronounced “Zee”) who she described as middle eastern like from Iraq and clean shaven. She said that she was not supposed to look in the bag but did, and then decided to ditch the bag in Winners in Collingwood when she was there with Nathan Palmer. Cst. Dewell noted that J.T. indicated that shortly after she was grabbed by guys and questioned where the bag was and raped with a pole to see if she had the drugs. She provided a vague description of one of the other people involved, Tracy, as an older female with short hair and glasses, driving an older blue SUV. The officer noted that J.T. told him that they were rough with her and that a shotgun was pointed at her face. She referred to lots of guys around that had guns. Her phone was taken from her and she believed it was still at the property. She described the property she was taken to as having three or four trailers beside a house with a white picket fence and a boat in the driveway and an old school bus in the field. It was described as a “junky property” with a big long steel building.

[51] J.T.’s interaction with Cst. Dewell suffers from the same frailties as the more formal interviews by police. In Cst. Dewell’s case, his recounting of what J.T. had to say was not verbatim, she was not cautioned about telling the truth, was not audio or video recorded, and she did not review the statement nor sign his notes of what she had told him to attest to its accuracy. As the police response unfolded, his primary concern was with her receiving medical treatment. He was not tasked with taking down a formal statement and it was a female officer, Cst. Prestage, who attended at the scene to escort J.T. to the hospital. J.T. spoke with Cst. Dewell within about an hour of being picked up by Mr. MacDonald. J.T.’s general description of the property that she was being held, the identification of Tracy and the vehicle she drove, and her reference to lots of guns and a shotgun being pointed at her face, overcame any frailties in the statement-taking process as the information contained in J.T.’s exchanges with Cst. Dewell were sufficiently corroborated to provide them with an air of reliability sufficient to consider them at the preliminary hearing.

J.T.’s Audio Statement at the Hospital

[52] As the only female officer working that shift, Cst. Prestage was asked to attend the Husky gas station to assist the victim of a reported kidnapping and possible sexual assault and to take a statement from her. Her intention was to accompany the victim to the hospital. She arrived at the scene at 12:40 p.m. and briefed. Cst. Prestage, who was in police uniform, went to the ambulance and introduced herself to J.T. The ambulance left the scene at 12:45 p.m. and Cst. Prestage remained with J.T. in the ambulance until they arrived at Soldiers’ Memorial Hospital at 1:40 p.m.

[53] J.T. was taken into a private room where she was seen by medical personnel. At times, Cst. Prestage left the room. At 3:07 p.m., Cst. Prestage began taking an audio statement from J.T. using the audio recording function on her work smartphone. The phone has the capacity to make video recordings but the officer testified that she has not recorded a video statement on her work cell phone. I did not receive a compelling reason why she could not have done so. The officer had a phone with the capacity to do so and could have asked J.T. if she would consent to her statement being video recorded but did not contemplate doing so.

[54] The officer described J.T. as lucid during the statement taking process and did not detect an odour of alcohol. She has experience with individuals under the influence of opioids and was of the opinion that J.T. did not appear impaired or under the influence of drugs when she gave her statement.

[55] The audio statement was played and the transcript was tendered as an exhibit on this application. Like in R. v. Wiesniewski 2005 O.J. No. 4864 (C.J.) at para 17-20, no steps of any sort were taken to impress upon J.T. the seriousness of the proceedings or the importance of being truthful. No oath, declaration, or solemn affirmation was administered and no K.G.B. warning was given which would have served to warn the witness about the possibility of prosecution if she lied.

[56] Like Caldwell J. expressed in Wiesniewski, I too find the failure to administer an oath or to caution a victim about the consequences of lying surprising. While not formally expressed in this case, if the concern is that police wish to be sensitive to the feelings of sexual assault complainants and are concerned about re-victimizing already traumatized victims for fear that if cautioned or asked to swear to tell the truth it sends an indirect message that the officers don't believe them, the difficulty, as Caldwell J. observed, is that this approach ignores the first of the K.G.B. reliability indicia, jeopardizes the admissibility of the statement, and has the potential to frustrate the investigation if, such as here, the complainant is not available to testify.

[57] As Caldwell J. noted at para 20 of Wiesniewski, “[t]hese comments certainly show sensitivity…, but they do nothing to impress upon him the importance of being truthful. Sensitivity needs to be shown in these cases, but this must be balanced with reinforcement to the complainant of the seriousness of the proceedings and the consequences of making false allegations. In this case, not only was there a failure to administer the oath or the K.G.B. caution, but no alternative steps were taken which would impress …the importance of telling the truth, and thus add to the reliability of his statement.”

[58] In this case, the deficiencies in the statement-taking process at the hospital were able to be overcome. The trustworthiness or credibility of the information J.T. provided in that statement was established by the corroborative evidence adduced on this application including the video surveillance from the Pleasant Manor motel, her detailed description of the property she was taken to, and text messages from cell phones seized from 1788 Simcoe County Road 7 which describe her being threatened with a shotgun pointed at her face to disclose where the drugs were, and her underwear in her bag that was found in Traci Mills’ trailer on the property which corroborated her claim of having to remove her underwear for her vagina to be checked with a steel bar under the guise of making sure she had not secreted the drugs there.

Video Statement at the Huronia West Detachment

[59] The same failings to administer an oath or caution about telling the truth carried on to the videorecorded statement at the Huronia West detachment later that day. In theory, the use of a videorecording adds to the threshold reliability of a statement by providing an accurate reproduction of the statement. The video allows the trier of fact to observe verbal and non-verbal cues which assist in determining credibility, and to assess the relationship between the interviewer and the witness so that the trier can determine to what extent the witness's testimony is a product of the investigator's questions: see R. v. K.G.B., [1993] S.C.J. No. 22 at para 93.

[60] Det. Cst. Lafferty, who had been brought in as a female officer to conduct the video interview with J.T., was not familiar with the detachment nor had she been in the interview room before. She first met J.T. in the soft interview room at 6:14 p.m. and introduced herself as a police officer. Although in plain clothes, it would have been clear to J.T. that she was at a police detachment to provide a statement of the events leading up to her kidnapping and escape. At around 7:00 p.m. according to the timestamp, the interview commenced. J.T. sat so the camera only showed the back of her head or at times a profile, while the interviewing officer could be fully seen. Det. Cst. Lafferty would not have been aware of that, but inexplicably, Det. Neville, who was watching the interview did not intervene to have J.T. repositioned so that her face could be seen and those watching the interview could observe any verbal or non-verbal cues.

[61] J.T. was not asked to provide her statement under oath or affirmation nor cautioned of the importance of telling the truth and consequences if she did not. That does not, in my view, “revictimize” a victim, but affirms for the witness the significance of what she is telling police and akin to courtroom testimony, the solemnity of the occasion.

[62] What J.T. did say about the kidnapping during the video statement was corroborated independently, at least to be sufficiently reliable for the purposes of establishing it to be trustworthy and credible for purposes of s. 540(7). What J.T. disclosed about the kidnapping was corroborated by other evidence tendered on this application whether from video surveillance at the motel, photographs and videos by police at the property at 1788 Simcoe County road 7, property seized at that location, or text messages from cell phones seized from the property. The following information disclosed in J.T.’s statement, while not meant to be an exhaustive list, was corroborated by other evidence sufficient to establish its credibility or trustworthiness:

• [When she could not provide the drugs to the people she was supposed to] about 20 people pulled us out of the hotel (Pleasant Manor) (p. 4)
• taken to a trailer where I had a gun held to my head (p.4)
• Tracey took the bag with my phone and wouldn’t give it back (p.5)
• The drugs were in a blue bag with polka dots with gold zipper and said Hershel on it (p.8) (report from employee at Winners of bag containing suspected drugs and photographs of bag (tab 6 of evidentiary record)
• Natalie and Nathan picked her up from her house in a darker colour or beige van that is still at that house (p.12)
• The SUV she was taken in from the motel was dark (p.13)
• She left all of her stuff in the room at the motel (p.14)
• Her phone was in the bag which Tracey has (p.14)
• Tracey has her mustard Steve Madden bag type backpack in her trailer (p.15, 50))
• Was in room 17 or 7 at the Pleasant Manor (p.16)
• Tracey was one of the people who came to the Pleasant Manor hotel to retrieve the drugs – she lives in the trailer that is furthest from the other three and drives the blue SUV (p. 23) (evidentiary record, tab 9 and police video of property at 1788 Simcoe County rd 7)
• At the motel the guys were pulling things around and dumping our stuff (p.26)
• she was put in the blue SUV to the trailer that is parked beside Tracey’s trailer (p. 30)
• They had a big long shotgun pointed at my face asking for it and what I did with it (p. 31)
• My black thong will probably be in the trailer (p. 32)
• The property had trailers everywhere and lots of cars and a big long bus in a field and all are behind this brown building (p.40)
• Nathan’s van was left at the place (p.46) (key fob located in Traci Mills’ property at CNCC)
• We waved to cars and nobody would stop until a red SUV took us in and drove us to the gas station (p.46)
• Map drawn by J.T.

[63] The map drawn by J.T. of the location she said she was being held was corroborated by the photographs and videos taken by police of the scene at 1788 Simcoe County Road. J.T.’s account of having a shotgun pointed at her face is referred to in text messages from a Motorola cell phone seized from the property alleged to be from Raymond Levesque to “Ozz” on November 14, 2020 at 2:14 p.m. that “my buddy that owns that gun he’s here and he’s going to find out everything that’s going on…” and then further on “And [J.] is in my camper right now and I will tell Tracy that answer her text” and further “Yeah cuz when you got a 12 gauge shotgun pointed out your head you usually speak it’s like on movies”. There are further exchanges at 11:36 a.m. that “those people in the van they’re all still there” and then later at 2:25 p.m. that “I just left the farm I’m not there right now I’m just letting you know and I’ll be back in about an hour and I’m also looking for those people around the area could they be walking probably or something”. At 3:56 p.m., “Is everything good or should I get rid of this phone and hide from but there’s still people going to come over the barn or the car so I just need to know”. Nathan Palmer’s vehicle was at the property and he was unable to remove it as he did not have his key. A key fob for his vehicle was located in Traci Mills’ property at Central North Correctional Centre. J.T.’s account of having to wave down cars following her escape is corroborated by Bill MacDonald’s statement.

[64] In all, J.T.’s statements to police about the kidnapping meet the prima facie air of reliability test and are credible or trustworthy for purposes of their admission pursuant to s. 540(7).

Drug Possession

[65] J.T.’s account of how she came into possession of the bag and her discarding of it as soon as the became aware there were drugs contained in it would have her self-described as an innocent possessor of the drugs. The information she provided about the drugs up to the point they were “left” at Winners raises different considerations for the assessment of whether it has a prima facie air of reliability to be admitted pursuant to s.540(7) than her account of the kidnapping. In one she is a victim, while the other a possible, if not likely, co-perpetrator or co-conspirator who may be motivated to distance herself from complicity in a criminal offence.

[66] As I have written repeatedly, none of J.T.’s statements to police were under oath or affirmation nor was there any caution to tell the truth, nor did police provide J.T. any assurance that they were not interested in laying any charge in relation to her possession of the drugs in an attempt to provide some confidence that what she did say about the drugs had at least a prima facie air of reliability.

[67] The evidence before me is that J.T. was a drug user and well entrenched in the drug subculture. The one matter that was corroborated was that the drugs were in a blue polka dot Hershel bag with gold zipper. J.T. clearly sought to distance herself from knowledge of what was in the bag, and her claim was that once she looked in the bag she abandoned the drugs in the dumpster at the Winners store in Collingwood. That was false as the bag and the drugs were found on a shelf inside the Winners.

[68] J.T.’s utterances to Cst. Dewell at the scene prior to her leaving with Cst. Prestage at 12:48 p.m. were not recorded and not verbatim. Nor was what he noted reviewed by J.T. to attest to its accuracy, perhaps understandably given that his primary concern was getting her medial attention and handing over the escort to a female officer, Cst. Prestage. His notes of his conversation with J.T. about the drugs was that she had been given a bag and told not to look at it by a male by the name “Z”, who he noted she said was of middle eastern descent from Iran or Iraq and clean shaven with longer dark hair. She also referenced that he has two vehicles but typically drives an older Toyota.

[69] At 3:07 p.m., Cst. Prestage took an audio statement from J.T. at the hospital. It is a statement which might easily have been able to have been videorecorded and certainly cautions provided but were not. J.T. maintained that she was given the package not knowing what was inside of it “to hang onto for somebody she was dating just going by the name ‘Z’”. She claimed not to know his full name. She indicated that she had met “Z” a week earlier at the liquor store and he gave her a phone. She described him then as East Indian with brown eyes, brown hair, 5’4” and that he drives a beige older Toyota maybe a Corolla.

[70] At 7:00 p.m., J.T. was at the Huronia West OPP detachment to provide another statement that would be video-recorded. J.T. did not make this statement under oath or affirmation, nor were any cautions to tell the truth provided. Det. Cst. Lafferty, who had been brought in to conduct the interview with J.T., had not been made aware that the drugs were located on the bottom shelf in the beauty section of the Winners store and not in the dumpster. As she testified in her evidence, had she been aware that the drugs had been found somewhere other than where J.T. had said she discarded them, that would have, agreeing with Ms. Schofield’s words, “been a red flag of the truthfulness of complainant”. Had she had known, she would have asked J.T. to explain that and may well have assured her that police were not interested in her knowledge or possession of the drugs given the other events in the investigation, and likely would have led her to at least comment to J.T. to tell the truth. Det. Cst. Lafferty may not have known of the drugs on the shelf, but Det Neville, who was monitoring the interview, did. He could have intervened but did not, just as he did not intervene when it was clear that all that an observer could see of J.T. was the back of her head or left side profile.

[71] The information J.T. provided about “Z” in the video statement was that she had met him a week ago at the LCBO in Collingwood. It was towards closing time and they were looking for a bottle of wine and they began talking and hung out and he drove her home. J.T. described him as 30-something, East Indian, 5’4”, tiny, 130 pounds with an olive complexion, brown eyes. She saved his number in her phone as the letter “Z”. J.T. had two phones, a Motorola and an iPhone, at the property she had been taken to. The Motorola phones seized by police at the property were not J.T.’s. Although there were two iPhones seized, neither were tendered as belonging to J.T. and it would simply be speculation to infer that one belonged to her.

[72] Detective Neville spoke with J.T. on November 19, 2020 and asked her to describe “Z”. She described him as middle eastern, with olive skin, moustache with a goatee and brown long dark hair to his ears, 5’7” and well built. He had a tattoo but could not remember where they were or what they depicted. She told the officer that he drives an older beige Toyota Corolla. She did not remember where he lived and had never been to his house.

[73] The tattoo has some significance. Det. Neville testified that he believed he spoke with J.T.’s mother, L.C., on December 15, 2020 and she told him that her daughter told her that “Oz” had a tattoo of a girl on his shoulder or back and a tattoo of a scorpion. How and why Ms. L.C. sought this information was somewhat unclear; whether she did so on her own or at the behest of police. Det. Neville’s evidence was that he did not do ask her to do so. When he spoke to Ms. L.C. he was advised that J.T. told her that “Z” also had a black BMW and was married but separated with one child and that she had met him on the side of the road when she went for a walk. Contrary to what she told police, she apparently told her mother that she had been to his house and he lived in Tiny Township beside a trailer park. This interview was not recorded. Ms. L.C. did not testify on this application. The Crown is not seeking to have this statement admitted as part of this application, but the officer was questioned about it given the inconsistencies between what J.T. told police and what she apparently told her mother although whether such “double hearsay” would be admissible is for another day.

[74] Before beginning the interview, Det. Cst. Lafferty had received information from the shift briefing that police believed that “Ozzie” is the drug dealer. J.T. never identified “Z” as Ozzie. It is Det. Cst. Lafferty who refers to “Z” as “Ozzie” by identifying the person J.T. had named as “Z” as Ozzie. This led J.T. to respond to questions about Ozzie and then referring to him as Ozzie. Det. Cst. Lafferty conceded that bringing up the name “Ozzie” was a mistake. Cell phone records do make out conversations between Raymond Levesque and a contact identified as “Ozz” about missing drugs, J., her presence at the farm, and threats using guns.

[75] The Crown conceded that there is a substantial body of evidence which suggests that J.T. was involved, at the very least, in the possession of illegal narcotics. The Crown also concedes that on the basis of her own statements that J.T. was, at minimum, initially wilfully blind and later had knowledge of the fact she was in possession of a large amount of illegal drugs which would have been for the purpose of trafficking. J.T.’s mother provided a statement to Det. Neville in which she reported her suspicion that her daughter was using drugs other than methadone and made her leave her residence. Ms. L.C. had called Det. Neville on November 17, 2020 to report that her daughter struggled with drugs and had left drugs in her residence that she wanted to have disposed.

[76] In their reply submissions, the Crown submitted that J.T.’s involvement with narcotics is neither highly relevant to the determination of the statements’ reliability nor should it result in the automatic exclusion of her evidence. While I agree there is no automatic rule of exclusion, I do not agree that J.T.’s involvement with the drugs and her possession of them is not relevant. She is a drug user. Her claim of having looked in the bag and upon realizing they were drugs discarded them is not a claim that is credible or trustworthy. Her further claim of having discarded the bag in a dumpster at Winners is undermined by the fact that the bag of drugs was found on a shelf inside the Winners.

[77] It is not to say that there is no corroboration of J.T.’s involvement with the drugs. Text messages said to be between Raymond Levesque and a contact identified as Ozz that can be interpreted to be about J.T. being at the property, being in a camper on the property, having a shotgun put to her head to disclose where the drugs were, reporting to Ozz that the people were still in the van and then looking for “those people” after they had gone, and asking whether he should get rid of the phone. The issue, however, is whether J.T.’s information or statements about the drugs have, at minimum, a prima facie air of reliability. In my view they do not. J.T.’s use of the name Ozzie came only after Det. Cst. Lafferty identified “Z” as Ozzie. It is not clear that J.T.’s use of the name Ozzie was her identifying him by that name or in response to the officer referring to the person she called “Z” as Ozzie. In my opinion, it would not be safe to rely on J.T.’s subsequent use of the name Ozzie when referring to “Z” given the way in which that purported identification emerged.

[78] Given all of the above, and the fact that the information provided by J.T. to police on the topic of the drugs was not under oath or solemn affirmation, without caution of the importance to tell the truth, without assurance that police were not interested in her involvement in the drugs, that she was not questioned or challenged about inconsistencies in her account of discarding the drugs, and that even when videotaped the court was not able to see the witness, I am of the view that J.T.’s accounts of how she came into possession of the drugs and her identification of “Z” does not have a prima facie air of reliability to be considered as trustworthy or credible within the meaning of s.540(7) and those portions of J.T.’s statements relating to the drug offences or identification of “Z” will not be admitted.

Should the statements be admitted under the principled exception to hearsay

[79] As the information does not meet the prima facie air of reliability test under s.540(7), it also fails to meet the higher reliability standard to be admissible as a principled exception to the hearsay rule on a balance of probabilities. (R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57 at para 47; R v K.G.B., [1993] S.C.J. No. 22 at para 112)

Conclusion

[80] The information contained in J.T.’s four statements about the kidnapping will be admitted into evidence pursuant to s.540(7). The information J.T. provided about how she came into possession of the drugs and her identification of “Z” will not be admitted.

Released: November 16, 2021 Justice J. Bliss