ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30325
DATE: 2012/07/05

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – TOBY LITTLE OTTER LAND Applicant

David Elhadad and Carl Lem, for the Respondent
Anne London Weinstein and Neil Weinstein, for the Applicant

HEARD: June 27-28, 2012

PRE-TRIAL RULING #1 REGARDING
vIVA VOCE EVIDENCE ON KGB APPLICATION

AITKEN j.

Nature of the Application

[ 1 ] Toby Land is charged with the second degree murder of Domenic Doyon on May 4, 2009. Carl St. Cyr was originally charged with the same offence, but prior to trial pled guilty to manslaughter and was sentenced. At the time of Mr. Doyon’s death, he, Mr. St. Cyr, and Mr. Land were all roommates in the apartment where Mr. Doyon’s body was found.

[ 2 ] Thérèse Germain, a friend of Mr. Doyon, provided a statement to the police and testified at the Preliminary Inquiry to the effect that, approximately one month prior to Mr. Doyon’s death, he told Ms. Germain that he had sustained an assault at the apartment at the hands of Mr. Land and Mr. St. Cyr. The Crown will seek to have Mr. Doyon’s statement to Ms. Germain tendered for the truth of its contents pursuant to the principled exception to the hearsay rule. The Crown submits that this evidence is relevant to the issues of identity and intent.

[ 3 ] In the months leading up to Mr. Doyon’s death, he was involved, on an intimate basis, with J.GM. Following Mr. Doyon’s death, Ms. G-M. also provided a statement to the police and subsequently testified at the Preliminary Inquiry. Her evidence was that she observed a physical altercation at the apartment between Mr. Land, Mr. St. Cyr, and Mr. Doyon that had some similarities to the altercation which Ms. Germain claimed Mr. Doyon had described to her.

[ 4 ] At the commencement of the pre-trial motions, Crown counsel advised Defence counsel that, in arguing the KGB Application, they intended to rely only on the written record contained in the Crown’s Application Record, which included Detective Francine Taillefer’s videotaped interviews of Ms. Germain and Ms. G-M. and the transcripts of their evidence at the Preliminary Inquiry. Defence counsel has brought this application seeking one of the following remedies, in no particular order of preference:

• The Crown’s KGB Application be dismissed if it fails to call the viva voce evidence of Thérèse Germain and J.G-M.;

• The Court call Thérèse Germain and J.G-M. as its own witnesses on the KGB Application and allow Defence counsel to cross-examine them; or

• The Defence be allowed to call both witnesses on the KGB Application provided that: (1) the Crown produce both witnesses for the Defence to call them, and (2) the Defence be allowed to cross-examine both witnesses if it decides to call them.

Summary of Thérèse Germain’s Anticipated Evidence

[ 5 ] Ms. Germain’s anticipated evidence, as gleaned from her statement to police and her evidence at the Preliminary Inquiry, is that, early in April 2009, she asked Mr. Doyon why there were holes in the walls of the apartment. Mr. Doyon suggested she ask Mr. St. Cyr, who was in the bedroom at the time. Ms. Germain went to the bedroom and asked Mr. St. Cyr. He did not respond. She came back into the living room and again asked Mr. Doyon. Mr. Doyon said that the holes were caused in the course of an altercation on April 1, 2009 during which Mr. Land had produced a knife and put it to Mr. Doyon’s throat. Mr. St. Cyr intervened and punched Mr. Land. Mr. St. Cyr then turned to Mr. Doyon, knocking him down and stomping on his head, injuring his own foot in the process.

[ 6 ] By the time Mr. Doyon had finished recounting this incident to Ms. Germain, Mr. St. Cyr had come into the living room and was listening to what Mr. Doyon was saying. Ms. Germain asked Mr. St. Cyr whether what Mr. Doyon was saying was true, and Mr. St. Cyr nodded.

Summary of J.G-M.’s Anticipated Evidence

[ 7 ] Ms. G-M.’s anticipated evidence, as gleaned from her statements to police and her evidence at the Preliminary Inquiry, is that, at some point one or two months prior to Mr. Doyon’s death, she witnessed an altercation between Mr. Land and Mr. Doyon during which Mr. Land put a knife to Mr. Doyon’s throat while Mr. Land was saying to Mr. Doyon that, if he ever dated a 14 or 15 year old again, Mr. Land would kill him. Mr. Doyon pushed Mr. Land away. Ms. G-M. did not mention Mr. St. Cyr being involved in the altercation at all, but she did recall two street friends of Mr. Doyon being in the apartment. It is not clear that the incident being referred to by Ms. G-M. is the same incident Mr. Doyon described to Ms. Germain.

Procedural Considerations

[ 8 ] Defence counsel complained that they were not given adequate notice of the Crown’s intention to argue the KGB Application based solely on the written record. They had understood from the Pre-trial Conference Report, and from the Notice of Application, that viva voce evidence would be called. Crown counsel took the position that they had kept their options open in terms of the evidence upon which they would be relying, and never committed to calling either Thérèse Germain or J.G-M. to testify on the KGB Application.

[ 9 ] In completing the Pre-trial Conference Report, Crown counsel indicated that they intended to introduce evidence based upon the principled exception to the hearsay rule; namely, the statements made by the deceased to Thérèse Germain, J.G-M., and Kim Haines. In doing so, the Crown intended to rely on viva voce evidence, witness statements, and transcripts. Crown counsel estimated that they would need two days to introduce this evidence. Defence counsel advised that they contested the admissibility of this evidence on the grounds of necessity, reliability, and prejudicial effect. Defence counsel consented to the manner in which the Crown sought to introduce the evidence. It is understandable why, at the time, Defence counsel understood that the Crown would be calling one or more of these witnesses to testify on the voir dire.

[ 10 ] In its Notice of Application for the KGB voir dire, the Crown indicated that, in support of the Application, it may rely on one or more of viva voce evidence of any police and/or civilian witnesses mentioned in the Crown brief, notes and writings made by the witnesses, transcripts of the Preliminary Inquiry, recordings and transcripts of interviews, cross-examination of any or all persons who swore affidavits, and such further and other materials as counsel may advise and the Court may permit. The Notice of Application referred only to Thérèse Germain and J.G-M., not Kim Haines. The Notice of Application was served on Defence counsel approximately one month prior to the commencement of the pre-trial motions. It is understandable that the Crown thought this Notice was worded so as to give notice to the Defence that the Crown was relying on the evidence of Thérèse Germain and J.G-M., not Kim Haines, and that it may not call either Ms. Germain or Ms. G-M. to actually testify on the voir dire.

[ 11 ] Unfortunately, during the course of argument on the pre-trial motions, it came to the attention of all counsel that there was a genuine misunderstanding as to whether Thérèse Germain and J.G-M. would be giving viva voce evidence on the voir dire. To the credit of all counsel, they returned to the Pre-trial Conference judge to see if she could assist in resolving this issue. She could not, and thus, this Application was brought.

[ 12 ] Defence counsel pointed to s. 28.04(11) and (12) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) to initially argue that the Court should not hear the Crown’s KGB Application. Those sections read:

(11) If either party changes any position taken and recorded on the pre-trial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.

(12) Failure to comply with rule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

[ 13 ] The parties did return to the Pre-trial Conference judge as soon as the disagreement came to light. In that all counsel eventually came to the conclusion that their disagreement arose from a good faith misunderstanding, Defence counsel was not pressing for the KGB Application to be summarily refused. Consequently, I will say nothing more about the procedural underpinnings of the Defence’s Application, but instead will focus on more substantive issues.

Analysis

Management Powers of the Trial Judge

[ 14 ] There is no question that it is up to the trial judge to direct the manner in which a voir dire is conducted, including whether viva voce evidence is required [1]. This is simply one aspect of a judge’s trial management powers.

[ 15 ] In R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), the Ontario Court of Appeal held that the Defence is not entitled to insist on witnesses being called on every pre-trial motion. In that case, on a pre-trial motion, the Crown sought permission to tender “similar fact evidence” at trial, and relied on transcripts of the accused’s earlier guilty pleas and the evidence led at the preliminary inquiry. The Defence insisted that it had the right to cross-examine all similar fact witnesses before the court ruled on the admissibility of similar fact evidence. The trial judge rejected this request and allowed the Crown to argue its motion on the basis of the written record. The trial judge did permit the Defence to call any witnesses it considered significant. The Defence declined to do so. On appeal, the Court of Appeal stated at para. 61:

The procedure adopted by the trial judge was appropriate in the circumstances of this case. This was not evidence (for example, a statement by the accused) where the Crown was required to prove certain facts (voluntariness) as a prerequisite for admissibility. In the circumstances of this case, admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor, was there uncertainty about what the witnesses might say. The trial judge was entitled to adopt a more expeditious procedure that was entirely adequate to test the admissibility of the similar fact evidence. [authorities omitted]

[ 16 ] The following excerpt at para. 324 of the Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (May, 2006) captures the task at hand:

In making that determination, the trial judge should not proceed on the basis of the erroneous presumptions that counsel are entitled to call viva voce evidence, or that every application requires viva voce evidence. To be sure, where the ruling will require findings of credibility, it will inevitably require some oral testimony. However, it may be that portions of the evidence can be entered by way of an Agreed Statement of Fact, transcripts, or “will say” statements. In other cases, where there are no findings of credibility to be made, the application should proceed on an evidentiary basis other than viva voce evidence, a procedure which protects the fair trial rights of the accused and the Crown, while promoting a more efficient trial process.

[ 17 ] The Report went on to recommend that the trial judge determine the manner in which evidence is presented on applications. Where feasible and appropriate to do so, the application should proceed on the basis of agreed statements of fact, excerpts from transcripts, affidavits, or “will-state” statements instead of oral testimony.

Importance of Cross-examination

[ 18 ] In R. v. Osolin, [1993] 4 S.C.R. 595, the Supreme Court of Canada emphasized that cross-examination is the ultimate means of demonstrating truth and testing veracity. Cross-examination is the central tool supporting an accused’s right to make full answer and defence. As Major and Fish JJ. stated in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193 at paras. 1 and 2:

Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence. [Emphasis in original.]

[ 19 ] Lyttle involved a trial judge unduly restricting the right of an accused to conduct a full and proper cross-examination of the principal Crown witness; nevertheless, it acts as a reminder that, whenever a significant decision affecting an accused will be taken on the basis of evidence, the accused must be afforded ample opportunity to appropriately test that evidence. Thus, even though most of the case law trumpeting the importance of a trial judge not unduly fettering or interfering with the accused’s right to cross-examine Crown witnesses relates to proceedings in the trial proper, the critical nature of cross-examination in mounting a defence also informs what role it should be afforded on pre-trial motions.

Nature of a KGB Application

[ 20 ] On this application, the Crown takes the position that a KGB application is in the same category of pre-trial motions as a similar fact evidence application in the sense that it does not really involve a consideration of the credibility of witnesses or the reliability of their evidence but instead involves a more intellectual analysis of the potential dangers presented by the type of evidence sought to be adduced. The Defences takes the position that a KGB application does involve some assessment of the credibility of witnesses and the reliability of their evidence in the context of the trial judge having to consider threshold reliability.

[ 21 ] As Charron J. emphasized in R. v. Khelawon, 2006 SCC 57, ]2006] 2 S.C.R. 787 at paras. 50-55, it is important for a trial judge on a KGB application to respect the difference between threshold reliability and ultimate reliability. The former falls within the domain of the trial judge on the admissibility motion; the latter falls within the domain of the fact-finder – in this case, the jury. The purpose of the threshold reliability analysis is to determine whether the evidence is sufficiently reliable to overcome the dangers arising from the absence of contemporaneous cross-examination of the declarant (here, the deceased, Mr. Doyon). The traditional dangers associated with hearsay are perception, memory, and credibility.

[ 22 ] In the context of this case, there is some evidence that raises concerns about each of these dangers when considering the statement Thérèse Germain attributed to Dominic Doyon in early April 2009. First, and possibly most importantly, there is evidence that Mr. Doyon had lied to Ms. Germain in the past about the nature of his relationship with J.G-M.. The altercation involving Dominic Doyon, Toby Land, and Carl St. Cyr, which Thérèse Germain stated Mr. Doyon described to her, supposedly arose in the context of Mr. Land and Mr. St. Cyr being angry with Mr. Doyon over his relationship with J.G-M.. Secondly, there is evidence that, at this time in Mr. Doyon’s life, he was suffering from depression and was using marijuana in greater quantities than normal. Thirdly, there is some evidence of resentment being felt by Dominic Doyon toward Toby Land.

[ 23 ] There are two different grounds upon which a trial judge can find hearsay evidence sufficiently reliable to meet threshold reliability requirements under the principled exception to the hearsay rule. The first is where the circumstances in which the statement came about are highly suggestive of the evidence being reliable. The second is where there are sufficient means of testing the evidence other than through contemporaneous cross-examination.

[ 24 ] Looking strictly at the written record, one can understand why the Defence would want to explore through cross-examination of Thérèse Germain the circumstances in which Dominic Doyon purportedly made the statement to her about an altercation between himself, Toby Land, and Carl St. Cyr. The circumstances in which the statement was made do not, inherently, alleviate reliability concerns. It was a casual conversation between two friends at a time when the declarant, Mr. Doyon, was possibly depressed and under the influence of a drug or other intoxicant.

[ 25 ] At the same time, certain other means of testing the veracity of Dominic Doyon’s statement to Thérèse Germain are not present. The statement was not made under oath or affirmation at the time. It was not recorded. It was not made in any official setting. It was not made in circumstances where the declarant would feel compelled to tell the truth. Mr. Doyon is not available to be cross-examined now.

[ 26 ] What the Crown does point to is the evidence of J.G-M. to the effect that she witnessed an altercation between Toby Land and Dominic Doyon in which Mr. Land held a knife to Mr. Doyon’s throat and threatened to kill him if he ever dated a 14 or 15 year old again. The Crown points to this evidence as providing an element of reliability to Mr. Doyon’s statement to Thérèse Germain. At the same time, however, the Crown acknowledges that the evidence of J.G-M., as contained in her statement to the police and in her testimony at the Preliminary Inquiry, differs in some significant ways from the statement Thérèse Germain attributed to Dominic Doyon in her evidence. The extent to which the evidence of Ms. G-M. can be seen as supporting the reliability of the statement attributed to Mr. Doyon is very much in issue. Consequently, it is understandable that the Defence wants to probe this evidence to provide additional clarification as to the extent to which Ms. G-M.’s evidence bolsters the reliability of Mr. Doyon’s statement.

[ 27 ] On the KGB Application, I will have to decide whether, on a balance of probabilities, Dominic Doyon’s statement is likely to be reliable. I do not have to decide whether, ultimately, it will be relied on to decide the issues in this case. But even in deciding whether the statement is likely reliable, I have to consider such factors as the context in which it arose and the strength of any other evidence tending to corroborate it. The evidence of Thérèse Germain and J.G-M. is central to this analysis.

Thérèse Germain and J.G-M. as Vulnerable Witnesses

[ 28 ] The most important thing a trial judge must do is to ensure that a trial is fair – to the accused, certainly, but also to the Crown (representing Society writ large), to complainants, and to witnesses. As Doherty J.A. stated in R. v. N.S., 2010 ONCA 670, 102 O.R. (3d) 161 at para. 50:

Trial fairness is not measured exclusively from the accused’s perspective but also takes account of broader societal interests. Those broader interests place a premium on a process that achieves accurate and reliable verdicts in a manner that respects the rights and dignity of all participants in the process, including, but not limited to, the accused.

[ 29 ] The evidence is that Thérèse Germain is a vulnerable witness. She has been diagnosed with Attention Deficit Hyperactivity Disorder, depression, substance abuse issues, Fetal Alcohol Syndrome, and borderline personality disorder. For many years, Ms. Germain has had a support worker from the Canadian Mental Health Association (“CMHA”) assist her with aspects of daily living. For two years, from May 2008 to May 2010, Lisa Whelan was Ms. Germain’s CMHA worker, helping her obtain and then maintain housing in the community and seeing Ms. Germain on at least a weekly basis. Ms. Whelan described Ms. Germain as having difficulty communicating from time to time. Although at times she can remain focused and displays a good memory of events, at other times, when her memory fails, she becomes flustered, frustrated, and upset. Ms. Whelan advised that the death of Dominic Doyon was a traumatic event for Ms. Germain, as she considered him a close friend. Ms. Germain was anxious about testifying at the Preliminary Inquiry, and Ms. Whelan anticipated that she would be anxious, and would require support, at any further court appearances.

[ 30 ] At the time of the Preliminary Inquiry, Ms. Germain was allowed to have a support person present when testifying. As well, Ms. Germain was allowed to review her videotaped statement to the police during her examination-in-chief, and to adopt it as her evidence. Further questions were asked during examination-in-chief and then she was cross-examined at some considerable length by Mr. Land’s then-lawyer, Gary Barnes, and Mr. St. Cyr’s lawyer, Matthew Webber. The transcript shows that Ms. Germain seemed to understand the questions being posed, was able to answer them in an articulate and clear fashion, did not go off on numerous tangents, and did not become upset or uncooperative despite the length of the questioning.

[ 31 ] During argument on a sister application, Defence counsel conceded that Ms. Germain is entitled to have a support person with her under s. 486.1(1) of the Criminal Code when she testifies at trial.

[ 32 ] On this Application, I must consider Ms. Germain’s vulnerabilities and the impact on her of having to testify once again prior to the trial proper. The transcript from the Preliminary Inquiry is strong evidence that, given the proper support, Ms. Germain could manage a further court appearance.

[ 33 ] J.G-M. was 15 years of age at the time of Dominic Doyon’s death. Recently, she turned 18. No evidence has been tendered as to Ms. G-M.’s current vulnerabilities. Although, due to her young age, Ms. G-M. was entitled to have a support person with her when she testified at the Preliminary Inquiry, on a sister application under s. 486.1 during these pre-trial motions, Defence counsel took the position that there is insufficient evidence to the effect that currently Ms. G-M. would require such support when testifying. A review of the transcript of her evidence at the Preliminary Inquiry shows that Ms. G-M. was able to testify in a responsive fashion throughout an entire day of questioning and only “lost it” at the end of the day during final questioning on re-examination. At that point she stomped out of the court room, yelling swear words at everyone. Nevertheless, she was persuaded to return to the witness box, and her re-examination was completed.

Significance of Dominic Doyon’s Statement to Issues at Trial

[ 34 ] Defence counsel has advised that, at the commencement of trial, Toby Land will plead not guilty to second degree murder but guilty to manslaughter. Consequently, the issue at trial will be whether Mr. Land had the requisite mental state to be found guilty of murder. Evidence that Mr. Land previously threatened Mr. Doyon with a knife may be considered highly probative of whether, at the time he caused Mr. Doyon’s death, he intended to do so. Consequently, the outcome of the KGB Application is very important – both to the Crown and to Mr. Land. Limiting Mr. Land’s ability to fully canvass the admissibility of Mr. Doyon’s statement to Ms. Germain under the principled exception to the hearsay rule could have a severe impact on his ability to make full answer and defence.

Options for Cross-examination

[ 35 ] Taking all of these factors into account, I conclude that the Defence must be given the opportunity of cross-examining Ms. Germain and Ms. G-M. during the course of the KGB voir dire. The question then becomes the context in which this should be done.

[ 36 ] It is not the role of the trial judge to dictate what evidence the Crown must tender on a pre-trial motion. The Crown may bring its KGB Application on the basis of the written record, if that is what they choose to do. It should not be forced to call either Ms. Germain or Ms. G-M. as its witnesses.

[ 37 ] In R. v. Finta, [1994] 1 S.C.R. 701 at 861 and R. v. Cook, [1997] 1 S.C.R. 1113 at 1141-1142, the Supreme Court confirmed that, in a criminal case, a trial judge has a limited discretion to call witnesses without the consent of the parties. The step should only be taken if, in the opinion of the trial judge, it is necessary for the discovery of truth or in the interests of justice. The discretion should be exercised rarely and then only with extreme care so as not to interfere with the adversarial nature of the trial procedure and so as not to prejudice the accused. The trial judge should not exercise this discretion to call a witness if the Defence could call the witness and would be, in no way, prejudiced by doing so.

[ 38 ] Would the Defence be prejudiced by having to call Ms. Germain and Ms. G-M. as its own witnesses? Calling these witnesses as Defence witnesses on the voir dire would present several challenges to the Defence. First, it is clear from the evidence in the written record that Ms. G-M. has had an unstable life during her youth, moving from home to home and living on the street for periods of time. Locating her could be a challenge. Second, Ms. G-M. was Mr. Doyon’s girlfriend at the time of his death, and Ms. Germain considered herself a close friend of his. Both assigned blame to Mr. Land for Mr. Doyon’s death. It is reasonable to assume that they may not want to cooperate with the Defence and that Defence counsel may not be able to prepare either witness to testify. In fact, when Ms. Germain initially spoke to the police, she was hoping that her evidence in regard to the statement attributed to Dominic Doyon would result in the charges against Mr. Land being elevated to first degree murder. Third, Ms. Germain has numerous mental health problems which make her evidence less predictable. Fourth, it is clear from the transcript of Ms. G-M.’s testimony at the Preliminary Inquiry that her evidence is somewhat of a moving target and is, therefore, also unpredictable.

[ 39 ] Just as Panet J. found in R. v. Hankey, [2008] O.J. No. 5266 (S.C.), it would be manifestly unjust for the Defence to have to call either of these witnesses without the means of knowing what evidence they would likely give. Considering the written record that already exists, an application under the common law for a declaration of hostility or an application under s. 9(1) or (2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 would be redundant and would add unnecessary time and complexity to the KGB Application.

Disposition

[ 40 ] Taking all of these factors into account, I conclude that the best way to balance interests and ensure a fair trial for all is to give permission to the Defence to cross-examine Thérèse Germain and J.G-M. if it chooses to call them as witnesses on the KGB voir dire, and to require the Crown to produce both witnesses on the voir dire if requested to do so by the Defence.

Aitken J.

Released: July 5, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – TOBY LITTLE OTTER LAND Applicant pre-trial ruling #1 regarding viva voce evidence on kgb application Aitken J.

Released: July 5, 2012

[^1]: R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.) at paras. 36, 54, 57; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.) at paras. 60-61.