Ontario Court of Justice

Date: 2022 07 21 Court File No.: 21-75004748 Location: College Park, Toronto

Between: HER MAJESTY THE QUEEN

— AND —

MARK KEDDY

Ruling on Hearsay Application

Before: Justice B. Jones

Heard on: July 13, 2022 Reasons for Judgment released on: July 21, 2022

Counsel: V. Hentz, counsel for the Crown M. Engel, counsel for M. Keddy

Jones J.:

Introduction

[1] On April 24, 2021, Mr. Peter Kostopoulos was the victim of an assault outside his residence located at 80 Danforth Avenue in the city of Toronto. He was struck multiple times by an unknown male person and suffered injuries to his left eye and ear. A few months after these events transpired, Mr. Kostopoulos passed away.

[2] The accused is charged with aggravated assault and assault with a weapon. The theory of the Crown is that Mr. Keddy was the man who assaulted Mr. Kostopoulos.

[3] Following the assault, Mr. Kostopoulos called 911 and Toronto Community Housing to report what happened to him. He then provided an audio/video recorded statement to Toronto Police Service officers in the back of a police cruiser.

[4] The Crown brings an application to introduce the three prior statements of Mr. Kostopoulos for the truth of their contents pursuant to the principled approach to hearsay.

[5] This hearing was conducted by Zoom. Mr. Keddy was only able to connect through a regular phone connection. Mr. Engel informed me he had reviewed all the materials beforehand however and was content to proceed in this manner.

Factual Background

[6] Mr. Kostopoulos resided at 80 Danforth Avenue. He was 78 years old and in frail health. He used a cane to support himself walking.

[7] The front of the building has a video surveillance system. It was operational on April 24, 2021 and captured an interaction between Mr. Kostopoulos and an unknown male suspect. There is no audio associated with this video.

[8] The surveillance footage depicts what appears to be a conversation taking place between Mr. Kostopoulos and the suspect near some benches in a grassy area. The suspect is a white male, wearing blue jeans and a black jacket. He is taller than Mr. Kostopoulos. Following a heated conversation, he stands up and swings at Mr. Kostopoulos with his right fist, striking him near the left ear. Mr. Kostopoulos stumbles backwards slightly. He steadies himself, and then strikes the male who assaulted him with his cane. After a second strike, the male grabs the cane and takes it from Mr. Kostopoulos. He then swings it at Mr. Kostopoulos’ left leg. He drops the cane on the ground.

[9] The male swings again at Mr. Kostopoulos’ head with his fist, making contact near his left ear. This causes Mr. Kostopoulos to fall to the ground. In the process, he struck his head against a brick wall that separates the grassy area from a path. He lies there helplessly.

[10] It was the early afternoon at the time of the incident and there was ample daylight.

[11] No evidence was produced on this application that the two parties knew each other.

Statements of Peter Kostopoulos

[12] Mr. Kostopoulos called 911 at 1:23 p.m. The call lasted for seven minutes and five seconds. He informs the 911 operator that “they beat me” and he was bleeding. He describes them as being homeless, wearing “homeless clothes”, and white. He doesn’t know if they had a weapon. He estimates their ages to be 35-40. He eventually clarifies that one person had a green jacket and one had a black jacket.

[13] At 1:57 p.m. he called the Toronto Community Housing Corporation dispatch. That call only lasts for about three minutes. He states that it was three or four men who assaulted him.

[14] At 2:08 pm he provides an audio and video recorded statement to Sgt. Chiasson and her partner, PC Hussein. They were on duty in uniform and the statement was provided in the back of a marked scout car. While the statement does not include a caution at the beginning about the importance of telling the truth and the potential criminal consequences of intentionally misleading the police, Sgt. Chiasson testified that it was her usual practice to inform a witness of these matters beforehand. She may have provided this information before they began recording, but did not have an independent recollection of doing so.

[15] In this statement Mr. Kostopoulos explains that the men who assaulted him were a nuisance at this building and were always causing trouble. He had to rely on building security and the police in the past to chase them away. He was sitting outside his building and told them to leave. At that point, one of the men struck him with a closed fist. He described this man as being tall, heavy set, white, and wearing a black jacket. The other men did not hit him.

[16] When asked for clarification, he estimates the suspect’s height at eight feet tall and his age between 45-50 years. He did not pay attention to the rest of the suspect’s clothing. He could not provide details such as the suspect’s eye colour or hair colour.

[17] In all three statements Mr. Kostopoulos speaks with a noticeable accent. He needs to have questions repeated and some of his answers appear non-responsive at first. This may have been the result of a language barrier, or it may have been as a result of his hearing aid being damaged when his ear was injured. The officers do not ask any questions about his proficiency with English.

Police Investigation

[18] Mr. Kostopoulos took the police officers to the area where he believed the suspect might be located in a nearby parkette. The suspect was not present. However, the officers later returned that same afternoon and located Mr. Keddy. They believed he matched the description of the suspect as provided to them by Mr. Kostopoulos.

Principled Approach to Hearsay

[19] Hearsay is presumptively inadmissible. The principled exception to hearsay provides a flexible framework designed to guide the court’s analysis with respect to any type of hearsay evidence. The admissibility assessment using the principled approach considers whether the general exclusionary rule is displaced by indicia of trustworthiness: R. v. Blackman, 2008 SCC 37 at para. 38.

[20] The analytical framework for the principled approach is structured by two criteria: necessity and reliability. The onus is on the applicant to establish these elements on a balance of probabilities: R. v. Khelawon, 2006 SCC 57 at paras. 42(d), 47. Necessity and reliability are not mutually exclusive, and the “factors relevant to one can complement the other”: R. v. Couture, 2007 SCC 28 at para. 80. However, even where the twin criteria are demonstrated, the trial judge retains a residual discretion to exclude evidence where the prejudicial effect outweighs the probative value of the evidence: see R. v. Griffin, 2009 SCC 28 at para. 89; Khelawon at para. 3.

Necessity

[21] The necessity analysis considers whether it is in the interests of justice to admit the evidence in hearsay form rather than to lose the value of it altogether: Khelawon at para. 49. To meet the test for admissibility, the hearsay evidence must be necessary to prove a fact in issue. In this case, the statements are necessary to establish that the victim was assaulted, and the description of the suspect. There are no other witnesses to the assault that came forward and provided statements to the investigating officers. Where the declarant is the only substantive witness and is now deceased, the necessity requirement will typically be established: Blackman at para. 34. Defence counsel does not dispute the necessity requirement has been met.

Reliability

[22] With respect to the reliability criteria, admissibility relates to threshold reliability and not to ultimate reliability. The issue is whether the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness: Khelawon at paras. 47-51.

[23] The standard for threshold reliability is high as dictated by the need to maintain the integrity of the trial process. Even when needed, hearsay evidence will only be received therefore when “it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: see R. v. Bradshaw, 2017 SCC 35 at para. 26; Khelawon at para. 49. As a result, the reliability analysis starts with identifying the precise dangers that are engaged by the proposed hearsay evidence.

[24] In Bradshaw the Supreme Court explained that the dangers associated with hearsay evidence are focused on the difficulty of assessing the declarant’s perception, memory, narration or sincerity: see para. 26. These dangers may be overcome and threshold reliability established by demonstrating the existence of procedural or substantive reliability: see para. 27.

[25] A procedural reliability analysis focuses on factors that inform whether the trier of fact will be in a position to evaluate the truth and accuracy of the hearsay statement. It examines whether there are substitutes for the usual method of evaluating trustworthiness, which is direct observation of the witness testifying under oath or solemn affirmation, and subject to cross-examination. The central question to ask is whether there are adequate substitutes for evaluating the truth and accuracy of the statement given there is no opportunity for contemporaneous cross-examination: see Bradshaw at para. 40.

[26] Some substitutes that have been broadly accepted in prior decisions include whether the statement was audio and video recorded, whether an oath or solemn affirmation was administered to the declarant, and whether the declarant was provided with a clear warning about the criminal consequences of providing a dishonest or misleading statement to the police: Bradshaw at para. 28; R. v. Youvarajah, 2013 SCC 41 at para. 36; R. v. Hawkins, [1996] 3 S.C.R. 1043 at para. 75.

[27] However, the opportunity to cross-examine the declarant has been repeatedly recognized as of significant importance when assessing if adequate safeguards to test the evidence remain: Couture at para. 92. The Supreme Court held in Bradshaw that “some form of cross-examination of the declarant…is usually required” to establish procedural reliability: see para. 28. In fact, the availability of the declarant to be cross-examined on possible motives for making the statement or his ability to perceive the events in question accurately at the time they occurred has been held to be “the most powerful factor favouring admissibility”: see R. v. Rowe, 2021 ONCA 684 at para. 53; Couture at para. 95.

[28] The purpose and value of cross-examination must therefore be considered in light of the case-specific dangers posed by the admission of the statement. In particular, the trial judge should consider that cross-examination can challenge the accuracy or veracity of the statement: see R. v. S.S., 2022 ONCA 305 at paras. 52-53.

[29] Substantive reliability requires the court to consider if there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. The court should assess if the circumstances and any corroborative evidence provide a sensible basis to reject alternative explanations for the statement leaving the declarant’s truthfulness and accuracy as the only reasonable explanation: Bradshaw at para. 40.

[30] While the standard for substantive reliability is high, the phrase “circumstantial guarantee of trustworthiness” does not require that “reliability be established with absolute certainty”: see R. v. Smith, [1992] 2 S.C.R. 915. Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Khelawon at para. 49.

[31] The importance of the hearsay evidence to the case plays no role in the reliability analysis: R. v. Chretien, 2014 ONCA 403 at para. 55.

Position of the Crown

[32] The Crown identified several material aspects of the hearsay statement that it seeks to tender for their truth. The two that appear to be seriously in dispute at the trial are the description of the suspect and his associates and the nature and circumstances of what, if anything, immediately preceded the assault. Two specific hearsay dangers are raised by these aspects of the statement. First, whether Mr. Kostopoulos was able to accurately perceive the events as they occurred and therefore observed the suspect for enough time with sufficient clarity that he could accurately describe him to the investigating officers. Second, did he honestly and comprehensively explain what happened between him and the suspect before the assault occurs, including what they said to each other.

[33] The Crown submits there is no evidence he had any motive to lie when providing these statements and would have appreciated the solemnity of speaking to the police in particular. Additionally, a 911 call has inherent indicia of reliability given the commonly known importance of how that service is utilized. The statements were all audio recorded providing a complete record of what the declarant said. He was able to respond to questions and the events were fresh in his mind at the time.

[34] The video surveillance evidence confirms the assault occurred and provides some important context by which the trier of fact will be able to evaluate the reliability of the statement.

[35] Mr. Keddy was located, apparently matching the description of the suspect, in a nearby parkette where Mr. Kostopoulos believed he would be found. This provides some confirmatory evidence which should be considered when assessing the threshold reliability of the police statement in particular.

Position of the Defence

[36] Mr. Engel submits that the statements do not meet the standard for threshold reliability. He notes that there is evidence of animus by the declarant towards “homeless people” and that may suggest a possible motive to lie about what transpired at the time of the incident.

[37] The video evidence presented as supposedly confirmatory evidence has no audio and is only sixteen seconds long. It does not capture what immediately preceded the assault and nor can it assist with what was said between the parties.

[38] The statements are also lacking in specific details of the suspect or suspects and are inconsistent with respect to the number of assailants, their ages, and other non-trivial details. He asks me to consider that the concerns with eye-witness identification evidence would be tremendously amplified if these statements were admitted and the declarant could not be tested on his observations.

[39] Furthermore, the declarant’s proficiency in English is also called into question by the recordings of these statements. He may have misunderstood some of the questions which would have affected the reliability of his responses.

Analysis

[40] Corroborative or contradictory evidence relevant to the trustworthiness of the statement may be considered on the admissibility hearing: Khelawon at paras. 93-100. To be meaningful to the admissibility analysis, corroborative evidence must contribute to overcoming the specific hearsay dangers previously identified. For example, if the hearsay danger is memory, narration, or perception, the attention will be on accuracy: Bradshaw at paras. 44-47. If alternative explanations remain possible, the hearsay dangers have not been overcome. It is worth emphasizing that the trial judge is limited to considering evidence that corroborates the truth or accuracy of the content of the hearsay statement that the Crown seeks to rely upon, but not the Crown’s theory more generally: Bradshaw, supra.

[41] The court must be satisfied, on a balance of probabilities, that the only likely explanation is that the statement is true and accurate. This is a stringent test, akin to the test applied to circumstantial evidence, which requires that guilt be the only available reasonable inference: see R. v. Villaroman, 2016 SCC 33 at para. 30. It is not enough that the truth and accuracy be “more likely” than the alternative explanations. If that is the conclusion reached, the corroborative evidence is of no value to the substantive reliability analysis: Bradshaw at paras. 49, 88-89; R. v. Larue, 2018 YKCA 9, appeal dismissed 2019 SCC 25. The circumstances of the case remain a guiding factor in this phase of the analysis.

[42] In this case, the alternative explanations that I must consider are that the victim was not able to clearly observe the suspect and/or provide a detailed, accurate statement to the authorities, or that he may have lied about exactly what occurred, including the circumstances surrounding who assaulted him and why.

[43] With respect to the first alternative, he may not have been able to accurately describe the suspect, or may have simply been mistaken when describing the suspect’s clothing, physical features, or appearance more broadly. Eyewitness identification evidence is notoriously unreliable and suffers from inherent dangers. The frailties of this evidence create a heightened risk for a potential miscarriage of justice. A trial judge must exercise considerable caution before relying upon such evidence: see, for example, R. v. Jack, 2013 ONCA 80 at paras. 13-16; R. v. Sheriffe, 2015 ONCA 880 at paras. 18-22.

[44] Both eyewitness identification evidence and eyewitness description evidence suffer from inherent frailties: see Sheriffe, supra; R. v. Bettencourt, 2008 ONCA 337, at paras. 12-13, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 489. A witness may simply not provide a detailed, specific description of someone that includes reference to any “distinctive features” and instead rely upon “generic and vague” descriptors: Jack at para. 16; R. v. Ellis, 2008 ONCA 77, at paras. 5-8. The descriptors themselves may be of limited value where the witness’ vantage point, personal circumstances, or other factors related to his or her opportunity to observe the suspect were not conducive to a clear and focused observation. In this case, the declarant was an elderly man, making observations of a stranger, while experiencing an assault that left him shaken and unsettled.

[45] His description of the suspect was vague and lacked specificity. He confirmed it was a male person, of somewhere between 35-50 years, who was white, tall and heavy, and wearing a black jacket. This could capture a great number of people. He clarified for the investigating officers that the suspect may have been eight feet tall, which not only defies belief but is certainly inconsistent with Mr. Keddy’s actual height. Some of this may be explained by what appears to be a possible language barrier.

[46] There are also troubling inconsistencies between the statements. In the 911 and TCHC calls he describes multiple suspects having assaulted him. Each was between 35-40 years of age. In the statement he provided to the police officers he fixates on one primary suspect and says the other men did not assault him. He also raises the age of the suspect to 45-50. No explanation is offered for these material differences. He refers to the suspect’s clothing as “homeless clothes” without further clarification.

[47] The witness’ familiarity with the accused therefore takes on great weight in cases of eye-witness identification: see Jack at para. 15; R. v. Arsenault, 2016 NBCA 47 at para. 43; R. v. Mohamed, 2020 ONCA 653 at para. 11. The evidence presented in this hearing was that the declarant and the accused did not know each other. At the time of the incident Mr. Kostopoulos may also have been understandably focused more on protecting himself than on making detailed observations of the suspect’s face and attire: see R. v. Mills, 2019 ONCA 940 at para. 194; R. v. Iyamuremye, 2017 ABCA 276 at para. 71.

[48] Additionally, in Blackman, the Supreme Court held that “the presence or absence of a motive to lie is a relevant consideration” when determining the admissibility of an out of court statement for the truth of its contents: see para. 42. The evidence of motive to lie with respect to Mr. Kostopoulos is limited to his stated dislike of the homeless people that he viewed as being a nuisance outside of his building. In R. v. Dupe, 2016 ONCA 653, the Ontario Court of Appeal held that if the evidence permits neither an inference of motive to lie nor an inference of no motive to lie, it cannot assist the court in demonstrating the reliability of the declarant’s statement. However, in S.S., a case dealing with a child witness’ statement alleging sexual abuse of her uncle, a majority of the Court found the trial judge had fallen into error by not considering evidence of a possible motive to lie at the threshold reliability stage. The child witness had stated that she did not like the accused, and did not like the conflict he created in the child’s home environment. That was deemed to be some evidence of a motive to lie that had to be factored into this analysis: see paras. 66-70. While the evidence supporting a possible motive to lie in this case is thin, I cannot say there is none at all.

[49] Mr. Kostopoulos was undeniably the victim of an assault. But whether or not Mr. Keddy matches the description of the assailant, or even if the assault itself occurred exactly as Mr. Kostopoulos described in his statement to the police, will be live issues at the trial.

[50] Ms. Hentz makes a persuasive argument that the video of the assault itself should allay most of my concerns about any frailties in the declarant’s statements. It demonstrates a male suspect committing the offences and Mr. Kostopoulos can be identified as the victim. Unfortunately, it is very brief, and not of great quality. The suspect’s face is partially obscured by a hat, dark glasses, and a mask that covers his nose and mouth. As Mr. Engel noted, it does not capture what happened preceding the assault, what may have happened afterwards, and has no audio. It also seems to have some missing frames. While I find the video does provide some confirmatory evidence it does not, by itself, serve to overcome the potential dangers with relying on these statements. The alternative explanations for the statements cannot be ruled out.

[51] The video also demonstrates that following the suspect’s first punch, Mr. Kostopoulos retaliates by striking the suspect with his cane. Mr. Kostopoulos did not share that important detail in any of his statements. This raises the possibility of a defence of self-defence (at least with respect to part of the altercation) and enhances the concern I associate with Mr. Engel’s inability to cross-examine the declarant at trial.

[52] Fundamentally, the admissibility of the statements would leave the defence with no means to challenge either the accuracy and reliability of the eye-witness description evidence or the possible existence of a motive to fabricate. This would impede Mr. Keddy’s ability to defend himself and raises the spectre of a wrongful conviction based on either faulty identification or an untrustworthy witness statement. I do not accept the Crown’s submission that the statements are sufficiently reliable based on the circumstances in which they were made to establish threshold reliability given the specific dangers associated with this hearsay evidence that I have previously identified: see R. v. Moseley, 2021 ONSC 6798, at para. 20.

[53] The Crown’s application is dismissed.

[54] I commend and thank both Ms. Hentz and Mr. Engel for the excellence of their written and oral submissions. I also want to extend my sincere appreciation to them both for conducting this hearing in an extremely professional and efficient manner.

Released: July 21, 2022 Signed: Justice Brock Jones