Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 12 09 COURT FILE No.: Toronto 21-75002120

BETWEEN:

HIS MAJESTY THE KING

— AND —

KELSEY BRENNAN

DEFENCE APPLICATION TO ADMIT DEFENDANT’S AFFIDAVIT

Before: Justice David Rose Heard on: November 22, 2024 Reasons for Judgment released on: December 9, 2024

Counsel: A. Cox, counsel for the Crown T. Evangalista, counsel for the defendant Kelsey Brennan

Rose J.:

Endorsement

[1] Ms. Brennan faces three charges: Assault With a Weapon, Assault Causing Bodily Harm, and Weapons Dangerous. All charges arose out of an incident on May 2, 2021 at the Yonge Subway Station in the early morning hours. The complainant Carson Libaralato testified that he was attacked with a knife in the subway station. Video of the altercation was played at the trial. Mr. Libaralato was candid in his testimony that he was so drunk that he had no memory of the incident although he could identify himself on the video.

[2] The Crown closed its case on December 1 of last year, and the case has gone over several times because of unavailability of Ms. Brennan for health reasons, and because defence counsel was double booked on another trial date. On August 30 Mr. Evangalista advised the Court the he wished to bring an application to have the defendant’s evidence admitted under the principled exception to hearsay evidence (The Application). It was perfected on September 19. January 30 is now set aside for continuation on the trial proper.

[3] The application is therefore a request to have Ms. Brennan’s Affidavit dated September 18, 2024 admitted at her trial in her defence, and then be cross-examine viva voce in the usual course. She also asks that her evidence be heard in a video room outside the courtroom and that she have a support person present. The last two requests are unopposed by the Crown. The Crown opposes the request to have her affidavit admitted in lieu of her testimony in chief.

[4] These are the reasons for granting the application.

[5] Ms. Brennan’s affidavit on the application deposes that on July 25, 2024 she was diagnosed with Epilepsy by her neurologist. I was provided no further evidence about that. There is no report from her neurologist.

[6] Ms. Brennan further deposes that she experiences seizures roughly twice per month and there she understands that her seizures are triggered by stressful experiences. The seizures cause her eyes to roll up, she foams from the mouth and she bites her tongue. She becomes unresponsive. Ms. Brennan’s position is summarized in her affidavit as:

I have a serious concern that should I be required to testify in Court about a highly stressful and traumatic event it may result in a serious medical episode

[7] Her evidence on the application also includes medical reports from Etobicoke General Hospital. They include a consultation report from March 12, 2024 in which a cardiologist Dr. Masoom documents her chest pains from February 26, 2024. It lasted a few hours and resolved spontaneously. There is no pattern to it. There were no other features which caused discomfort. Her symptoms reduced after that. Ms. Brennan appeared with no cardiac findings, and had no cardiac symptoms after a stress test.

[8] Another report filed on the application from September 14, 2023 documents her seizures, which coincide with getting upset. When she has a seizure she is unresponsive and cannot remember the details. Notably, her mother appeared with her at the medical consult with Dr. Dolatshahi who noted that “As per mother who was accompanying the patient, majority of these the seizures are in relation to alcohol. This 22 year old female was last seen in emergency about two months ago as per mother’s report. She stopped drinking alcohol since then and she remains seizure-free.”

[9] Dr Dolatshahi continued:

Regarding these episodes that are associated with foaming from the mouth, biting of the tongue they are convincing to be seizures and she should continue Topamas 100mg b.i.d. and stay away from drinking alcohol….

She had also some possibly nonepileptic events because some of them were associated with being upset and not being responsive and different from her typical generalized seizures. For these episodes, it is important to be followed by a psychiatrist and psychologist, and if she is already not followed by a psychiatrist or psychotherapist I suggest the family doctor to arrange for the referral to same.

[10] The medical evidence before the Court on the application therefore delineates epileptic and non-epileptic generalized seizures. The non epileptic episodes were associated with being upset.

[11] During argument Mr. Evangalista filed a fourth medical report dated July 25 2024. That report says that Ms. Brennan has discontinued her seizure medication and apparently “…not showing any epileptic activity either”. That note from Dr. Dolatshahi says, about Ms. Brennan,

…she is not on any seizure medication anymore, she stopped it for about 1 year now. It seems that she was unhappy with the side effects, mainly memory problems. She has a lot of breakthrough seizures. She is not sure about how many exactly. She usually forgets the seizures. The last 1 was a couple of weeks ago and she was with a friend. She all of a sudden had losing consciousness and shaking all over. Ambulance was called and she was taken to Humber River Hospital. Over there they suggested to put her on anti-seizure medication but she refused.

Epilepsy investigation in the past included EEG from March 2023, which showed normal awake study. Another 1 from October 2022, was not showing any epileptic activity either. Her MRI brain from March 2023, for seizure assessment showed no intracranial abnormality.

[12] It is therefore her own affidavit and reports to her physician which supports a finding that she is epileptic. That diagnosis is not entirely confirmed by the supporting medical documentation.

[13] Beyond the medical evidence, Ms. Brennan’s affidavit describes her version of what happened on the subway platform when Mr. Libaralato was knifed. It supports a defence of self-defence on its face.

[14] The defence seeks to admit her affidavit dated September 18, 2024 as her testimony in chief and then answer questions viva voce during cross-examination in a CCTV room with a support person Mr. Evangalista recognizes the novelty of this application.

[15] The s. 517 portion of the Application was not pursued in argument.

[16] The application also seeks an order under s. 486.1 of the Criminal Code to give testimony by video with support worker. The Crown does not oppose that.

[17] The Crown opposes the substantive part of the application for three reasons: 1) the ability of the Court to assess her evidence in chief is limited; 2) Ms. Brennan’s account of what happened offered is crafted by affidavit and presented in a packaged way; and, 3) criminal trials must be conducted by first hand evidence. In 3) the Crown has precedent concerns that this will water down the manner in which trials are conducted. I would describe all three of these as generalized concerns about the nature of a trial which is fair to both the defence and Crown.

[18] In submissions Mr. Cox was candid that if Ms. Brennan gives her in chief evidence viva voce she may well say something different from her affidavit. If that happens it enures to the benefit of the Crown. This concern is more tactical than generalized.

[19] Aside from these concerns the Crown says that this evidence simply does not meet the test for admission of hearsay.

Legal Framework

[20] Ms. Brennan’s seeks to tender her affidavit as an out of Court statement admissible for the truth of the contents. There is considerable novelty to this. Neither the Crown nor defence could point to any reported decision which ruled on the admissibility of the accused’ own affidavit in lieu of testimony in chief.

[21] I have considered the applicability of the rule on the admissibility of admissions. Ms. Brennan’s affidavit is not an admission of fact as such under s. 655 of the Criminal Code because there is no agreement by the Crown about the substance of the affidavit. It is not “…and agreement between the parties to litigation that a fact is true”, see R. v. Rudder, 2023 ONCA 864, at par. 45 – 46. With that said what is also true is that Ms. Brennan’s affidavit has been delivered to the Crown. If it is not admissible for the truth of the contents then orthodox rules of evidence permit the Crown to cross-examine her on inconsistencies if she were to testify inconsistently from its substance. If it is admitted for the truth of the contents then the same holds true. The admissions rule therefore has been circumvented at least partially in the latter situation.

Principled Exception to the Hearsay Rule

[22] Hearsay evidence is admitted at a trial under the principled exception rule if it is both necessary and reliable. There is no need to revisit the jurisprudence which is well developed by senior appellate courts over the last 30 years. Rather I would quote from Watt’s Manual of Criminal Evidence (2024 ed) at 4:16:

Under the principled approach, it is for the trial judge to determine whether the requirements of necessity and reliability have been satisfied. Discrete findings are required for each principle.

Necessity implies that the reception of evidence untested by cross-examination is necessary, since otherwise the benefit of the evidence to the determination of the litigation will be lost entirely. Imperfection is better than nothing.

The reliability requirement is aimed at identifying those cases where concerns arising from the inability to test the evidence are sufficiently overcome to justify reception of the evidence as an exception to the general exclusionary rule. In general, the reliability requirement may be met where the proponent shows that there is

• i . no concern about the truth of the statement because of the circumstances in which the statement was made ( substantive reliability); or
• ii . no real concern arising from presentation of the statement as hearsay because the circumstances permit testing of its truth and accuracy by means other than contemporaneous cross-examination ( procedural reliability ).

These methods of satisfying the reliability requirement are not mutually exclusive, rather assist in identifying the factors that require consideration on the admissibility inquiry .

[23] Since this is a defence application, the Court of Appeal has permitted a more relaxed approach in such cases. For instance, in R. v. Young, 2021 ONCA 535 a drug importing case, the defence sought to admit a hearsay statement by the accused’ late father which supported the defendants innocence, particularly on the issue of knowledge. The trial judge refused to receive that hearsay declaration. That was found to be reversible error. As Jamal JA (as he then was) said at par. 65,

There is also strong authority to support the appellant's argument that, where hearsay evidence is tendered by an accused, a court should take a more relaxed view of the prerequisites to admissibility where it is necessary to do so in order to prevent a miscarriage of justice: Tash, at para. 89. This court in R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354 reviewed the authorities and cited the earlier decision of this court in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.), at p. 378, leave to appeal refused, [1985] S.C.C.A. No. 168, where Martin J.A. stated:

It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist .

Emphasis added

Necessity

[24] With that established I am prepared to find the following: Ms. Brennan’s affidavit establishes that she suffers from epileptic seizures and was so diagnosed on July 24, 2024 by Dr. Dolatshahi. That clinical report does not clearly confirm such a diagnosis, indeed it documents her self-reported seizures and confirms no abnormal EEG or MRI test confirming epilepsy. With that said, and while I am not free from doubt, I accept Ms. Brennan’s affidavit evidence on the point that she suffers from epileptic seizures. I could not entirely reject her self diagnosis. It appears that in mid-July she did suffer from a seizure which resulted in her hospitalization despite a lack of independent confirmation.

[25] The result is that she has established – on a relaxed standard – that testifying viva voce would tend to increase the likelihood of a seizure because of its inherent stress. In submissions Mr. Evangalista explained that on the defence application she would still be subjected to cross-examination with the inherent stress of that. He submitted that putting her evidence in this way would limit her time in the witness box to cross-examination and therefore reduce the likelihood of a seizure. I recognize that the most stressful part of Ms. Brennan’s evidence would still be present if this application is successful – namely cross-examination – the defence still presses it.

[26] I am therefore satisfied on a more relaxed standard that on balance there is a necessity to permitted Ms. Brennan to give her testimony in chief by way of affidavit.

Reliability

[27] If the orthodox common law rule were applied with the sceptical caution that the Court spoke of in R. v. Khelowan, 2006 SCC 57, [2006] 2 S.C.R. 787, at par. 62 it would fail the test for substantive reliability. Put another way, there is a cogency about the statement but it does not remove concern about its truth and accuracy, see Paciocco, Paciocco & Stuesser, Law of Evidence (8 th ed) at p. 164. I say that because Ms. Brennan’s affidavit was sworn to on September 18, 2024, some 39 months after the date of the incident. It cannot be described as contemporaneous. The affidavit is not spontaneous because it was sworn to at the behest of counsel in support of a legal application launched after the Crown closed its case. Furthermore, Ms. Brennan has a clear motive in this, namely to present evidence in support of her defence. I also take into account the Crown’s position, which is that her affidavit at points conflicts with the video evidence taken of the incident. I would not go into this last argument more than to say that because this is an admissibility voir dire , and I have not made any findings of credibility against any witness including Ms. Brennan.

[28] If the substantive test were applied to Ms. Brennan the way it is applied to the Crown this Application would fail on the substantive reliability limb. On the relaxed standard it meets the test - if barely.

[29] The second part of the reliability analysis looks at procedural reliability. On this footing the affidavit is under oath, which assists Ms. Brennan, but it was not made on video which detracts from its admissibility. Ms. Brennan was not cross-examined, but significantly, she is available to be cross-examined. The latter factor greatly assists in finding that the overall reliability limb of the analysis is made out.

Finding

[30] What tips the balance in this case is that Ms. Brennan will be cross-examined by an experienced Crown. Availability to be cross-examined is significant. I am therefore satisfied that admission of the affidavit as evidence in chief is consistent with the truth seeking function of the trial. Given Ms. Brennan’s history of seizures and her stated reason for them I find that there is a chance that a miscarriage of justice would follow were the affidavit not admitted.

[31] For these reasons I find that if Ms. Brennan takes the witness stand and adopts her affidavit of September 18, 2024 as truthful then there is no need for further testimony in chief. She can choose to proceed directly to cross-examination.

[32] I also find that paragraph 41 of the Affidavit refers to a post offence utterance to Ms. Brennan by a third party. I would not admit that paragraph on the basis that it is hearsay which is not relevant to an issue at trial. It is after the fact utterance, and therefore cannot assist in determining self-defence.

Released: December 9, 2024 Signed: Justice D.S. Rose