Ontario Court of Justice

Date: 2024 09 06 Court File No.: Oshawa 23-28107138

Between:

HIS MAJESTY THE KING

— AND —

JEREMY WILSDON

Before: Justice Joseph Hanna

Heard on: September 5, 2024 Reasons for Judgment released on: September 06, 2024

Counsel: T. Hignett — counsel for the Crown K. Quinlan — counsel for the defence

HANNA J.:

Overview

[1] Jeremy Wilsdon is charged with two counts of assaulting Andrea Thompson. It is alleged that on September 24, 2023, Mr. Wilsdon struck Ms. Thompson in the face, while on a street in downtown Newcastle. It also alleged that on October 1, 2023, while at the couple’s shared residence in Newcastle, Mr. Wilsdon forced Ms. Thompson’s head into a door and kicked her ribs. Ms. Thompson was not called as a witness at this trial. She was unable to be found despite significant efforts made by the police. Because of this, the Crown seeks to admit Ms. Thompson’s video recorded statement into evidence pursuant to the principled exception to the hearsay rule. The defence concedes that the necessity criterion has been met regarding the statement. Accordingly, admissibility depends on whether threshold reliability has been satisfied. I have determined that the Crown has failed to prove the threshold reliability of the statement on a balance of probabilities. The Crown’s application is therefore dismissed. What follows are the reasons explaining my decision.

The Evidence

[2] On consent, this case proceeded using a blended voir dire trial process. The Crown filed documentary evidence related to the police’s efforts to locate Ms. Thompson. This record indicates Ms. Thompson is currently subject to a warrant. The parties agree this is a bench warrant relating to a criminal charge.

[3] The Crown called the complainant’s son, Joshua King, as a witness. Mr. King testified that during the relevant period he had been living at 95 Foster Creek drive in New Castle with his mother, Mr. Wilsdon, and Mr. Wilsdon’s mother, Susan.

[4] Mr. King described an incident which he recalled occurring at this residence sometime between September and October 2023. He testified that he and his girlfriend were present on the main floor of the house when he heard an altercation between Ms. Thompson and Mr. Wilsdon which was happening in the basement. Mr. King heard the two yelling back and forth. He heard his mother state “get off of me.” He also heard a big sound, which he described as a thud. In examination in-chief, he offered his opinion that it sounded like a body being slammed off the ground, like someone had hit concrete. In cross-examination, he agreed he had not observed what caused the thud and that it was possible it had been caused by something other than a person.

[5] Mr. King testified that he observed Mr. Wilsdon coming up the stairs. He described Mr. Wilsdon as towering over him but acknowledged Mr. Wilsdon had not touched him. According to Mr. King, Mr. Wilsdon told him to “get the fuck out of his house.” Mr. King said that he did not notice any marks on his mother, describing this incident as a “flash.” He indicated that his mother left the house.

[6] Mr. King stated that the night prior to the incident there had been the “same old weird activity” in the house. He described “weird stuff” occurring, such as banging on the floor with a broom. Mr. King shook his head and was smirking while explaining this.

[7] Mr. King agreed he had not seen what had caused the incident between his mother and Mr. Wilsdon. He agreed that it was “1000 percent” true that he did not have the best memory of the event. He laughed as he indicated this. He testified that both Mr. Wilsdon and his mother had been stealing from the home. He said there had been a fight between his mother and Mr. Wilsdon regarding a stolen bank card. He indicated that to his knowledge his mother had a history of mental health issues and drug use, though the source of this knowledge was not elaborated on during his testimony.

[8] The Crown also called Police Constable Jenna Clements, who took the video statement of Ms. Thompson on October 1, 2023. P.C. Clements authenticated the video and testified that she had no concerns about Ms. Thompson’s ability to provide a statement. The officer acknowledged in cross-examination that on the video it may have sounded as though Ms. Thompson had slurred some of her words, but she maintained that she did not believe Ms. Thompson had any difficulty being able to recall and report events. P.C. Clement’s testified that during the interview she observed some redness to the right side of Ms. Thompson’s neck. In cross-examination, the officer confirmed that she had conducted a CPIC check on Ms. Thompson which revealed that Ms. Thompson had received a conditional discharge in May 2023 for the offence of fraud under $5,000.

[9] The video recording of Ms. Thompson’s statement is 52 minutes long. During the statement Ms. Thompson is cautioned regarding the criminal consequences of providing a statement. She is also advised by P.C. Clements that the statement was meant to be voluntary and not the product of any threats or coercion. Ms. Thompson agreed she understood all of this. Ms. Thompson affirmed to tell the truth. A document containing the cautions given to Ms. Thompson and her signed affirmation was made an exhibit on the voir dire, though I note that these exchanges were also completely captured on video.

[10] Ms. Thompson was emotional while giving her statement. She cried at several points. She admitted being a fentanyl user but indicated she had not taken any drugs on the day of the statement. She described being in a relationship with Mr. Wilsdon for two years and that the two of them lived with her son and Mr. Wilsdon’s mother. She stated that the night before Mr. Wilsdon had woken her up complaining that his National Geographic and Bible were missing. He made her look for these items for hours. In the morning, Mr. Wilsdon accused her of stealing his National Geographic. He told her that his mother was going to lock him up because he was schizophrenic. He began throwing things and stating he was going to the Supreme Court. Ms. Thompson told Mr. Wilsdon that she was sick of hearing this and began to gather her things to leave. She explained in her statement that she had found a towel wrapped up containing papers the night before. In the morning, Mr. Wilsdon unwrapped the towel and found his mother’s credit cards. He accused Ms. Thompson of stealing them, called her a whore, and told her to get the fuck out.

[11] She described Mr. Wilsdon pushing her by the head, grabbing her by the neck, and throwing her into the side of a door. She said Mr. Wilsdon kicked her ribs. She indicated that there was then an interaction between Mr. Wilsdon and her son. She described her son as terrified and that he was hiding behind Mr. Wilsdon’s mother. Ms. Thompson said she stood in between her son and Mr. Wilsdon.

[12] She then stated that she didn’t even know a drug dealer that would take a National Geographic and that she wouldn’t know how to get rid of it. She discussed a dispute she had with Mr. Wilsdon about his mother’s jewellery and that Mr. Wilsdon told her his mother believed Ms. Thompson had taken it. She explained that when she picked up her stuff to leave, he got violent with her.

[13] Ms. Thompson said Mr. Wilsdon needed help and that she needed to protect herself and her son. She stated that she had called shelters prior to calling the police and that it was her father who persuaded her to call the police because he had told her he would call them if she did not. She expressed fear that Mr. Wilsdon would kill her.

[14] She told the officer that she had been “frauded over a $100,000 while living under their house”, referring to Mr. Wilsdon’s and his mother’s house. She indicated that she had kept saying she needed to get out of there but that they (meaning Mr. Wilsdon and his mother) had control of her life. They had files on her and her kid. She described having phoned the police to report that Mr. Wilsdon had been drugging her, but that Mr. Wilsdon and his mother had told the police Ms. Thompson had been off her medication. Ms. Thompson then said she went on medication to make sure she was not crazy.

[15] She told the officer that she had to leave the house, explaining that Mr. Wilsdon had bullied her out of there. She admitted having an addiction to fentanyl while discussing negative things Mr. Wilsdon’s mother may try to say about her.

[16] Ms. Thompson complained that “they”, meaning Mr. Wilsdon and his mother, had taken her rent money and threw her out when they were supposed to give her 60 days. She said all her money went into Mr. Wilsdon’s accounts and that she had been “frauded.”

[17] When prompted by the officer, she recapped her narrative regarding the events of the morning and previous night. She described Mr. Wilsdon as weighing 360 pounds and being 6 feet 3 inches tall. She described Mr. Wilsdon grabbing her by the right side of the neck and pushing her into a door. She touched the left side of her head while describing this. She said he kicked her ribs over and over again. While she felt her ribs were bruised, she said she did not require medical attention. She again discussed the interaction between Mr. Wilsdon and her son, adding this time that Mr. Wilsdon had told her son to get the fuck out of the house and said: “or are you afraid I am going to hit you like your mother.”

[18] Ms. Thompson advised that Mr. Wilsdon smoked a lot of fentanyl and said that her dope had been missing when she woke up. She provided the officer examples of incidents suggesting Mr. Wilsdon was mentally unwell, paranoid, and irrationally jealous.

[19] She said that two weeks prior Mr. Wilsdon had punched her “right square in the face” while on the street in downtown Newcastle, very close to where her father had happened to be. She said her father saw her right after the incident and that she had told her father what happened. When describing the assault again she said she had been hit right across the face and demonstrated a slapping motion. She indicated that she received a black eye because of the incident but that she did not have any picture of the injury, pointing out that she did not have a cell phone.

Issues and the Law

[20] The defence concedes that the necessity criterion has been met given that Ms. Thompson could not be located despite the police making significant efforts to find her. See for example, R. v. Sampu, 2012 ONCJ 74 at paras. 15 – 22.

[21] Accordingly, the question for this court is whether the Crown can demonstrate threshold reliability on a balance of probabilities.

[22] Hearsay evidence is presumptively inadmissible because "absent contemporaneous cross-examination of the declarant, the party against whom the evidence is offered cannot effectively test the reliability and veracity of the out-of-court statement": R. v. Dupe, 2016 ONCA 653 at para. 44; R. v. Al-Enzie, 2021 ONCA 81 at para. 118. This evidence is usually excluded to “protect the integrity of the truth-seeking function of the trial and to preserve the fairness of the trial": Dupe, at para. 44; Al-Enzie, at para. 118. That said, hearsay may be admitted under the principled approach when the criteria of necessity and reliability have been established on a balance of probabilities: R. v. Bradshaw, 2017 SCC 35 at para. 23; Al-Enzie, at para. 119.

[23] In R. v. Srun, 2019 ONCA 453, at paras. 125 – 127, Watt J.A. provided the following detailed description of threshold reliability, which was quoted by Tulloch J.A. (as he then was) in Al-Enzie at para. 123:

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

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, at para. 63. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96 S.C.R. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: R. v. Bradshaw, [2017] 1 S.C.R. 865, [2017] S.C.J. No. 35, 2017 SCC 35, at para. 28; R. v. Couture, [2007] 2 S.C.R. 517, [2007] S.C.J. No. 28, 2007 SCC 28, at paras. 92-95.

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

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: R. v. Fredericks, 2018 NBCA 56, [2018] N.B.J. No. 211, [page332] 2018 NBCA 56, 365 C.C.C. (3d) 498, at para. 77; Bradshaw, at para. 32.

[24] In Bradshaw, at para. 57, the Court outlined when corroborative evidence may be used to support substantive reliability:

to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:

1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[25] Although the court must consider all speculative explanations at step 3, it is only the plausible ones which must be ruled out on a balance of probabilities by the corroborative evidence at step 4: R. v. Belleus, 2023 ONCA 759 at para. 48; R. v. McMorris, 2020 ONCA 844 at para. 34. “In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis - only those that are, on reflection, reasonably plausible”: McMorris, at para. 34.

[26] While procedural and substantive reliability may work in combination, “the threshold reliability standard always remains high - the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents”: Bradshaw, para. 32; R. v. Furey, 2022 SCC 52 at para. 4.

[27] A trial judge must keep the distinction between threshold and ultimate reliability in mind. In Al-Enzie the Court explained at para. 124:

At the admissibility stage, a trial judge has a 'limited role' in assessing the evidence's threshold reliability on a balance of probabilities. It is for the trier of fact to determine the evidence's ultimate reliability; "it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire": R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 93; see also Bradshaw, at para. 42; McMorris, at para. 23.

Analysis

[28] The principal hearsay danger in this case is whether Ms. Thompson is lying in her statement to the police. Can this hearsay danger be sufficiently overcome through procedural or substantive reliability, or a combination of both? In my view, it cannot.

[29] There are elements of procedural reliability in this case. Ms. Thompson provided a cautioned, video recorded statement under solemn affirmation. That said, the Crown’s application is missing what is “widely considered the most important of the three procedural safeguards”, the availability of the declarant to be cross-examined: R. v. Rowe, 2021 ONCA 684 at para. 53; R. v. Taylor, 2015 ONCA 448 at paras. 74. I have been provided no authority for the proposition that procedural reliability can be satisfied absent there being a meaningful opportunity to cross-examine the declarant. In my view, procedural reliability has not been established.

[30] As for substantive reliability, the Crown points to Mr. King’s and P.C. Clements’ evidence as being corroborative of the complainant’s statement regarding the October 1, 2023 allegation. In particular, the Crown notes that Mr. King testified that he heard an argument between his mother and Mr. Wilsdon, he heard a loud thud, and that he had an interaction near the stairs with Mr. Wilsdon. Furthermore, P.C. Clements observed some redness to Ms. Thompson’s neck. The Crown explicitly indicated that it was not relying on Mr. King’s evidence that he heard his mother say “get off me” as a spontaneous utterance. See R. v. MacKinnon, 2022 ONCA 811 at paras. 40-51. The Crown acknowledges that there is little, if any corroboration for aspects of the complainant’s statement relating to the September 24, 2023 allegation.

[31] I was provided the unreported decision of Justice Weinper in R. v. Asfaw (Ontario Court of Justice, June 17, 2024). In that case, Justice Weinper admitted hearsay statements of the complainant under both the spontaneous utterances exception and the principled approach exception despite the complainant not being available for cross-examination. That case had far more elements of substantive reliability than the one before me. For example, the complainant in that case was found naked, bleeding, and calling out for help. She had serious injuries, which were supported by forensic evidence. The accused was the only person with the complainant prior to her being found in this condition. Furthermore, an independent witness overheard a violent commotion and heard the complainant yelling “ah, oh, stop, stop, don’t do that.” Moreover, there was DNA evidence which supported the allegation of sexual assault. In my view, the elements of substantive reliability regarding Ms. Thompson’s statement do not come close to the level present in Asfaw.

[32] The corroborative evidence regarding Ms. Thompson’s statement is not particularly compelling. As already noted, there is an absence of any corroboration relating to the September 24th charge. No evidence from the complainant’s father, no evidence of the complainant’s purported black eye. Regarding the October 1st allegation, I consider the corroborative evidence to be thin. Despite Mr. King’s speculations regarding what caused the sound he heard, he readily acknowledged in cross-examination that he did not know what caused it. Even if I accepted his evidence, [^1] I find it completely plausible that the noise he heard could have been caused by something other than Ms. Thompson’s body hitting something because of being assaulted. Regarding P.C. Clements’ observation of some redness on the complainant’s neck, I note that I have not been provided any photographs of the injury. I was also unable to observe any redness on the video of the statement. While I do not doubt P.C. Clements’ evidence that she observed some redness, there are many plausible explanations for it. Mr. King’s interaction with Mr. Wilsdon on the stairs does not assist the Crown either. As I discuss further below, his evidence is somewhat inconsistent with Ms. Thompson’s version of that interaction. When I consider the purported noise heard by Mr. King, the redness to Ms. Thompson’s neck as observed by P.C. Clements, and Mr. King’s evidence regarding his interaction with Mr. Wilsdon on the stairs in combination, I am unable to find that only likely explanation for this evidence is that the complainant’s statement is true.

[33] Moreover, I cannot conclude that cross-examination of the declarant would add little to the truth-seeking process. In my view, the following factors make it impossible to say that the complainant’s evidence would not change or be significantly undermined through cross-examination:

i. Ms. Thompson admits in her statement that she uses fentanyl and was addicted to it. Questions regarding her drug use could undermine her reliability and credibility. ii. Ms. Thompson has a recent finding of guilt for fraud, which is a crime of dishonesty. iii. Ms. Thompson is currently subject to a bench warrant which is indicative of a lack of respect for the court process. iv. Ms. Thompson’s description of the interaction between Mr. Wilsdon and her son does not fit nicely with Mr. King’s evidence. Mr. King did not testify to being threatened by Mr. Wilsdon, nor did he testify to having received an admission from Mr. Wilsdon about having hit his mother. Mr. King also does not describe his mother standing in between him and Mr. Wilsdon or him hiding behind Mr. Wilsdon’s mother. v. Ms. Thompson complains in her statement about being defrauded of $100,000 by Mr. Wilsdon and his mother. The plausibility of this claim would have been a reasonable avenue to pursue in cross-examination. Moreover, this assertion by Ms. Thompson reasonably suggests that she had animus towards Mr. Wilsdon which could be indicative of a motive to lie. vi. Ms. Thompson complains in her statement of being bullied out of her residence and that she should have been entitled to 60 days notice. Again, this could be seen as providing her a motive to lie. vii. Ms. Thompson indicates in her statement that Mr. Wilsdon had accused her of stealing his mother’s credit cards and that he kicked her out of the residence. Again, these are areas where cross-examination may have yielded evidence of a motive to lie. I say this particularly given that Ms. Thompson was on probation at the time. viii. Ms. Thompson complains in her statement that her dope was missing on the morning of the alleged incident. She clearly blames Mr. Wilsdon for this. This fact can also support an inference of animus towards Mr. Wilsdon. ix. Ms. Thompson reports having her head pushed into a door and being repeatedly kicked in the ribs. She reports that she feels her ribs were bruised. She declines medical attention, however, and no forensic evidence was offered to support these claims. x. When first describing the alleged September 24th assault, Ms. Thompson says she was “punched right square in the face.” She later describes the assault as being hit across the face and demonstrates a slapping motion on the video.

[34] When I consider these factors in combination, together with the corroborative evidence submitted by the Crown, I am unable to conclude that the complainant’s statement is inherently trustworthy.

[35] Furthermore, I do not find that the elements of procedural reliability and substantive reliability when considered in tandem are sufficient to overcome the hearsay danger in this case. I have found substantial weaknesses regarding both criteria. Trial fairness and the truth-seeking process would be best served by excluding the statement.

Conclusion

[36] The Crown’s application is dismissed. The Crown fairly acknowledges that it has no reasonable prospect of conviction regarding both counts should its application fail. The Crown has advised that should the statement be excluded it would invite an acquittal on both counts and would not wish to make any further submissions on the trial proper. I agree that the Crown cannot meet its burden of proof considering my ruling. I accordingly find Mr. Wilsdon not guilty of both counts.

Released: September 6, 2024 Signed: Justice Joseph Hanna

Footnotes

[^1]: Mr. King testified that it was “1000 percent true” that he did not have a good memory of the events he was testifying about.