ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-1501/11
DATE: 20120419
B E T W E E N:
HER MAJESTY THE QUEEN
Kelly Slate, for the Crown
- and -
JERMAINE PHILLIPS
Paul Aubin, for the Defence
Defendant
HEARD: March 15, 2012
RULING #1:
ADMISSIBILITY OF WITNESS STATMENTS
Wein J.
Overview
[ 1 ] Mr. Roberts was shot three times at a house party, and fortunately survived. Two bullets remain in his body and cannot be removed without risk.
[ 2 ] Mr. Roberts positively identified the Defendant Mr. Phillips as the person who shot him. He has declined to confirm the identification either at the preliminary inquiry or at trial.
[ 3 ] He now claims that it is his right to say that it was some “random person” who shot him. I perceive, from his somewhat rambling commentary, that he believes there will be repercussions if he testifies, that in his world he cannot be protected, and that persistent attempts to have him acknowledge prior statements will be futile. For example:
Laugh all you want, straight up, you understand. It’s my life not your guys life so laugh all you want like I say straight up now.
So if I want to come up here and say some random person, I’m going to come up here and say some random person. I don’t know who the hell shot me, you understand. That’s my life if I want to come and say that. You guys aren’t living my life. You guys aren’t the one that got shot. Just talking about, you understand. You guys aren’t going through it. You guys talking about, yeah.
Q. Do you have concerns about your life?
A. What concerns, no, no, I’m just living my life. I’m telling you this is what’s going on. I’m saying so someone come press me up, like, this and that. I’m the victim, right? I’m the one that got shot, right? You guys talking about, yeah.
I showed you, I showed you, I showed you, it’s a random person. I told you it’s a random person. Don’t try to re-arrange the question. Don’t try to say statement and this, none of you. I’m saying I told you. So now going to switch it up because that’s what’s going to happen, understand? Like straight up, man. Now you’re playing these dumb games now. Ain’t got time for this. I’m trying to get out of jail for myself and so I don’t know what you guys talking about. Just make the man come with his lawyer and now ask me the questions, like. What should - I’m saying I’m nothing to help you for, straight up.
[ 4 ] Even after ruling that the Crown could cross-examine Mr. Roberts under the provisions of section 9 (1) of the Evidence Act , only minor and somewhat equivocal adoption of parts of the statements in issue resulted.
[ 5 ] The Crown now seeks to introduce the evidence of five prior statements to the police, bearing on the issue of identification, on the basis that they have been shown to be necessary and reliable, and/or that they are part of the res gestae.
Statement #1: November 27 at Scene
[ 6 ] Mr. Roberts told the first officer at the scene, Constable Lovell, that he knew who shot him. At the time, Mr. Roberts was lying on the ground outside the house, shortly after the shooting. He had been shot, there was blood on his face, and bullet holes on his shoulder and thigh, and his arm appeared to be broken. His twin brother Kemar was with him. The scene was chaotic. Constable Lovell was attempting to administer basic first aid. The officer asked him if he knew who shot him and Mr. Roberts said yeah, then his brother also said yeah and then hesitated and said no. Mr. Roberts then also said “no I don't”. The officer testified that it appeared to him that his second answer was influenced by his brother. Mr. Roberts was coherent and able to answer, although the officer was concerned about him going into shock.
[ 7 ] Mr. Roberts testified that he didn't recall speaking to police officers at the scene. When cross-examined by the Crown, he testified he just didn't remember that, but it was possible or probable that he spoke to the police.
Statement # 2: November 27 at Hospital
[ 8 ] Two officers who were with Mr. Roberts at the hospital testified that they spoke briefly to Mr. Roberts. Their recall of the statements Mr. Roberts made varied slightly.
[ 9 ] Constable Strauss said that after Mr. Roberts was treated at Sunnybrook, he was returned to ICU. He and Constable Oldfield remained with Mr. Roberts, for Mr. Roberts’ safety. At 10:25 a.m. the officer asked him what happened. Mr. Roberts told him that he was at the party with his twin and he tapped a girl on her behind and she hit him with a plate.
[ 10 ] As soon as he went outside, he was shot. He said he didn't know the person but would recognize a picture, and described him as a black male with a white hoodie, with someone named “Chunky”. Constable Strauss made his notes shortly after but did not show them to Mr. Roberts. He did not view this as a formal statement and knew the investigating officers would come later to do an interview.
[ 11 ] Constable Oldfield recalled that Mr. Roberts told him that they been at a party, he was with his twin brother and others. A male person shot him: the person had a white hoodie. He didn't know the person's name. A female had hit him with a plate. The male person pulled out a gun and fired 5 to 6 shots. Mr. Roberts seemed coherent and able to carry on a conversation.
[ 12 ] Mr. Roberts testified that he didn't recall speaking to the officers at the hospital. He vaguely remembered them at the time he had surgery but didn't think he had a conversation with them.
Statement # 3: November 27: Photos at Hospital
[ 13 ] The investigating officer, Detective Hackenbrook, testified that he was interviewing Mr. Robert’s twin brother Kemar, and was receiving information from him and others about persons who had been at the party. Some of the information came from another unidentified confidential informer through another officer at another bureau. Based on this information, Detective Hackenbrook received a number of photos. Kemar was able to identify photos of persons nicknamed “Griz” and “Chunky” and a photo of Nicole Buchanan. He identified a picture of the accused, Mr. Phillips, as a "citizen" who was at the house. Someone said his nickname was "Slinky".
[ 14 ] At 1:02 p.m. Detective Hackenbrook went to Sunnybrook to interview Mr. Roberts: he drove Kemar as well because Kemar was very upset and concerned for his twin brother.
[ 15 ] Because of public safety concerns, and because of the possibility that Mr. Roberts might succumb to his injuries, he decided to show the photographs to Mr. Roberts at this stage, even though an independent photo line-up had not yet been prepared. He knew that Mr. Roberts was sedated on pain medication though he was able to converse. When shown the photo of “Chunky”, Mr. Roberts said he didn't do it and shook his head. He said the same with respect to the photo of “Griz”. When shown the photo of Mr. Phillips, he opened his eyes very wide and nodded his head yes and said “that's who shot me.” Finally when shown the photo of Nicole Buchanan, he said ‘I believe that's her’, that she hit him over the head.
[ 16 ] Kemar Roberts was beside or behind the officer, and reacted to the identification by saying “that's the guy, oh snap, that's the man.”
[ 17 ] The officer did not videotape this conversation because his office didn't have mobile videotape equipment. He did not prepare a photo line-up because he felt there were exigent circumstances, two persons had been shot, and he wanted to show the photos before Mr. Roberts succumbed to his injuries.
Statement # 4: December 7 Verbal Statement
[ 18 ] On December 7, Detective Hackenbrook returned to the hospital to take a formal statement from Mr. Roberts. He was accompanied by an officer not working on the case to do a double-blind photo line-up in accordance with approved practices. He had borrowed videotape equipment from another unit but didn't know how long the tape would last. He decided not to videotape the statement, so that he could be assured that the photo line-up would be videotaped.
[ 19 ] The statement was not taken under oath or affirmation, and no KGB warning was given. He simply asked Mr. Roberts to tell him the truth. As well, he took notes of the statement in paragraph format, without writing down the questions that were asked. Although Mr. Roberts was apprehensive about giving a statement, once he started, he was "flying through" it. After the statement was taken, he read it back to Mr. Roberts and had him initial each page and sign at the end.
[ 20 ] In the statement Mr. Roberts describes the man who shot him as wearing a white hoodie, gray jeans.
“I could see his face. He had the hood on. I saw this guy come inside the house when I was arguing with the girl. He was standing behind a girl listening to the argument with his brethren. The girl hit me in the head and he had disappeared. When I went outside it was like he was waiting for me.… The guy shot four times… The man didn't even say a word when he shot me… I remember you showing me pictures at the hospital… I remember seeing Chunky and the guy that shot me. That was the guy. In the picture the guy had long hair but I saw hair poking out in his hoodie. I don't know guys brethren, I haven't seen that guy before.”
[ 21 ] Mr. Roberts testified at trial that the statement had not been read back to him, but he agreed that he had signed the statement on each page as indicated. He agreed his memory was vague. He also agreed that he did say it was a white hoodie and grey jeans because that was true to his knowledge. It was also true that he had seen the man who shot him in the house and that he described the guy who shot him as best as he could. This adoption alone, while limited, was significant as it provided additional circumstantial evidence that the shooting was connected to the incident with the girl in the house: Mr. Phillips is the girl’s brother.
Statement # 5: Formal Photo Line-up December 7
[ 22 ] Constable Crogan testified that he had no connection with the investigation and he was asked to attend at the hospital to do the photo line-up on video, because they use independent officers in accordance with standard procedure. He was given the envelopes with the photos already inside and, as shown on the video, he asked Mr. Roberts to shuffle them, and then gave the instructions as indicated. The instructions were initialled by Mr. Roberts. Again, there was no oath or affirmation, and no KGB warning, but he did ask Mr. Roberts if it was 100% the truth, as indicated in the video statement.
[ 23 ] In the photo line-up, Mr. Roberts views each photograph independently, and signs each one with his comments. All but one are signed with ‘no’, meaning he did not know the person, and the photograph of Mr. Phillips is indicated as ‘that’s the guy that shot me’. The video shows that the identification was immediate and positive, factors which support reliability.
[ 24 ] Mr. Roberts’ testimony at trial on the voir dire suggested that he said that that was the guy that looked familiar, but eventually he agreed he did not say that. He testified, unpersuasively, that he was not sure it was the man but did not know why he did not say he was not sure. He eventually agreed that he said ‘that’s the guy that shot me’ because the guy looked familiar to him and that is who he thought but he did not know if he was being accurate at the time.
[ 25 ] In cross-examination he readily accepted the defence suggestion that this was not the person who shot him, “not at all”. He also agreed that the photograph might have been familiar because of the earlier line-up, when that suggestion was put to him. He agreed with his statement at the preliminary inquiry that he was only 10% certain and never more than 10% certain.
Analysis
[ 26 ] The Crown argues that all five of these statements should be admitted into evidence at trial, because all go to identification. All are clearly relevant. With respect to the November 27 statements, the Crown argues that all three may be considered as part of the res gestae , and all are relevant as background, and toward the later identification.
[ 27 ] The defence argues that if, but only if, the videotaped photo line-up is entered into evidence should the earlier statements be admitted and then only for a limited purpose. The basis of the limited admissibility is that they would bear on the question of the reliability of the later identification, particularly in the sense that the mini photo line-up on November 27, when the police were trying to ascertain who was at the party, could be seen as having tainted the identification line-up on December 7.
[ 28 ] Within the context of the principles for admissibility of both res gestae and KGB statements, the principles of necessity and reliability must be assessed, as well as the overriding principle that the trial judge has a gatekeeper discretion to exclude evidence where the probative value is outweighed by the prejudicial effect of the evidence. It is not disputed by the defence that the necessity criterion is met in this case, since the witness either cannot remember, or disagrees with what is said in the earlier statements, and explains his reasons for declining to accept his prior statements.
[ 29 ] The reliability criterion is more complex. In some of the cases in which the underlying principles were developed, the witness was unavailable due to various reasons, or their memory was deficient, for example because of their young age at the time the statements were made, or other factors. This case is best assessed in the context of cases considering recanting witnesses who may have a particular motive, such as concerns about personal safety, for recanting statements previously made.
[ 30 ] Since the landmark decision of the Supreme Court of Canada in KGB , a number of cases have assessed the admissibility of prior identification evidence in the context of recanting witnesses. Prior to the KGB decision, there was some mixed authority with respect to the scope of a “so called prior identification exception to the hearsay rule”. That case law is now clearly superseded by the principled analysis required by KGB and subsequent cases, but some of the underlying issues and reasoning remain the same.
[ 31 ] It is not disputed that, where a witness identifies an accused at trial, the evidence of previous identifications made and descriptions given may be admitted into evidence so that the trier of fact can assess the probative value of the reported identification at trial. So also, where the identifying witness is unable to identify the accused but states that they previously gave an accurate identification, or description, the witness may testify as to what was done on earlier occasions as may those who witnessed the identification, to assess the identification. Further, a prior identification may be used to assist the trier of fact in assessing whether or not to believe the in-court testimony that the accused is not the person whose identity is in issue. In that case, the prior identification is used not for the truth of its contents, but as a prior inconsistent statement refuting the truth of the in court statement.
[ 32 ] KGB makes it clear that to be received as substantive evidence, rather than impeachment of credibility, the Crown must meet the burden of showing both necessity and reliability. The necessity criterion is generally, as in this case, not difficult to decide. The reliability inquiry is complex and requires an assessment of factors such as whether or not the statement was made under oath or affirmation, whether the trier of fact has an opportunity to observe the demeanour of the witness or the circumstances surrounding the making of the statement, and whether or not there is contemporaneous cross-examination.
[ 33 ] The absence of contemporaneous cross-examination maybe alleviated by the ability to cross-examine the witness at trial. While frailties or inadequacies in the identification procedure can often still be addressed during cross-examination at trial, reliability factors cannot be addressed where there is, for example, a dispute as to what was said in the statements, or other factors potentially affecting reliability. Where there is no dispute as to what was said in the statement, such as was the case in R. v. Letourneau , 2010 ONSC 2027 , [2010] O.J. No. 2635, the reliability of the statement may be found to be sufficient to warrant admissibility for substantive purposes.
[ 34 ] The absence of contemporaneous cross-examination was the issue that ultimately, in R. v. Tat , 1997 ONCA 2234 , [1997] O.J. No. 3579 (Ont. C.A.), caused the court to conclude that the prior statement of a recanting identification witness ought not to be admitted. The conclusions in Tat must however be assessed in light of later case law. Here, there was a partial adoption by the witness of the photo line-up in particular, and to a great extent reliability can therefore be assessed on the basis of the cross-examination at trial, since the photo line-up was videotaped. In these circumstances, cross-examination at trial is potentially equivalent to contemporaneous cross-examination.
[ 35 ] The Court of Appeal has recently reassessed the approach to be taken in determining whether or not a prior identification from a photo array is sufficiently reliable to warrant its admissibility under the principled exception to the hearsay rule where the witness was recanting through feigned loss of memory: R. v. James, 2011 ONCA 839 .
[ 36 ] In the audio taped statement, the witness had been cautioned that if she was not truthful she could be charged.
[ 37 ] The testimony of the witness at the co-accused’s trial and preliminary inquiry was found to be inadmissible as simply repeating information in the audio taped statement.
[ 38 ] The Court of Appeal however held that even in these circumstances, threshold reliability ought to have been considered pursuant to the KGB principles as set out in decisions such as R. v. Khelawon , 2006 SCC 57 ; R. v. Blackman , 2008 SCC 38, and R. v. Devine , 2008 SCC 36.
[ 39 ] The Court held:
Threshold reliability is usually met in one of two ways, although they are not mutually exclusive. First the Court may be satisfied that the circumstances in which the statement was made provides sufficient guarantees of the trustworthiness of the statement to negate reliability concerns.
[ 40 ] In the case before me, it is clear that there are no sufficient external guarantees of trustworthiness from the circumstances, particularly concerning the critical statements of 4 and 5.
“Threshold reliability may also be established if there are means by which the reliability of the statement can be sufficiently tested at trial despite its hearsay nature.”
[ 41 ] Contemporaneous cross-examination may make the statement sufficiently reliable to justify admission, although that was not available in this case.
[ 42 ] That cross-examination at trial may provide sufficient reliability to warrant admission into evidence, has previously been noted by the Supreme Court of Canada in R. v. Couture , 2007 SCC 28.
[ 43 ] In this case, by contrast, the witness agreed that he remembered the second photo line-up, which was videotaped.
[ 44 ] Accordingly, this case falls closer to the situation in R. v. Devine referred to above.
[ 45 ] Accordingly, the cross-examination on the voir dire , in this case by both the Crown pursuant to a section 9(2) application and the defence in the normal course, may be said to have been meaningful.
[ 46 ] This is not a case where I would exercise the discretion to decline to admit the statement on the basis of prejudicial effect outweighing probative value.
[ 47 ] In the circumstances, the formal statement to the police and the photo line-up, statements 4 and 5, are properly admitted into evidence. The three prior comments, referred to as Statements 1, 2 and 3, are also admitted to give context to the analysis of the weight to be given to the later statements on December 7.
[ 48 ] This ruling deals only with the issue of admissibility. Nothing in these reasons should be taken as detracting from the caution that a court must always bear in mind in assessing the ultimate weight to be given to eyewitness identification evidence, particularly where the person being identified is a relative stranger to the witness.
Wein J.
Released: April 19, 2012