ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO .: CR-12-30000184-0000
DATE: 20120730

BETWEEN:

DAVID CLARKE Applicant – and – HER MAJESTY THE QUEEN Respondent

J. Goldlist , for the Applicant, David Clarke
M. Savage , for the Respondent, Her Majesty the Queen

HEARD: July 27, 2012

Thorburn J.

KHELAWON APPLICATION

1. The Relief Sought

1The accused David Clarke is charged with possession of a loaded firearm and ammunition. He was arrested on these charges on July 3, 2011.

2On July 2, 2011, the evening before his arrest, a photograph was taken showing the accused, Clarke wearing a red short sleeved shirt that says Canada on it, a red baseball cap, dark jeans and black runners. At 19:20 that same day, Officer Moreira made a note of this description of what Clarke was wearing.

3On July 3 rd when the search warrant was executed, police found a loaded firearm underneath the red shirt with Canada on it and other clothing the accused was seen wearing the day before.

4The Defence seeks to cross examine police witnesses about hearsay evidence recorded in their notes. Their notes provide that July 3 rd , 2011 at 16:45, just before the officers went in to execute the search warrant, Officer Moreira told them there was possibly a second armed male at the residence.

2. The Issue

5Should the statement made by Officer Moreira to other officers just before execution of the search warrant that there was possibly a second armed male at the premises, be admitted into evidence at trial for the truth of its contents?

3. The Positions of the Parties

6The Defence concedes the officer’s information about what Moreira imparted to them is hearsay evidence. However, the Defence says it should be admitted because it is both necessary and reliable.

7The Defence claims the evidence is necessary because Officer Moreira, who conducted the briefing and imparted information to others, is too ill to participate in this trial. It is necessary to enable the accused to make full answer and defence as the jury should know there was possibly another male on the premises in possession of a firearm just before the search warrant was executed and a firearm found.

8The Defence further claims the information is reliable as most of the officers who attended Officer Moreira’s briefing have a note that they were told by Officer Moreira at the briefing that there was possibly another armed male at the premises.

9The Crown disputes the Defence request. The Crown position is that the evidence is neither necessary nor reliable.

4. Background Facts

10On July 2 and 3, 2011, Detective Moreira conducted surveillance on 86 Carisbrooke Square (the premises) along with several other officers.

11At 16:45 on July 3, 2011, Detective Moreira conducted a briefing with Emergency Task Force officers shortly before they executed a search warrant at the premises. The premises are owned by the accused’s mother. At the briefing, Officer Moreira told them that the key target was the accused, an armed male with a criminal record that included discharge of a firearm at police, and escaping custody. This is reflected in the officers’ notes. Most of the officers also have a note that Officer Moreira told them there was possibly a second armed male who was at that time at the premises they were about to search.

12In their notes all dated July 3 rd , Officer Farrell noted that, “Possibly a second armed male at address. Male currently in garage with 2 other individuals.” Officer Stuart noted in his book that “2 nd male at address. Also possibly in poss. Of a firearm.” Officer Elaschuk noted that, “During briefing, info that target observed going back into house. Then short time later back in garage, with another male who also known to carry firearm.” Officer Flowers noted that he was told of “2 nd male outside that is possibly armed as well.” Officer MacKenzie made note that, “Male carries his firearm on his person…currently in the garage. 2 nd male o/s that is possibly armed as well.” Officer Reimer recorded that “Second subject possibly armed as well” and Officer Spicer noted that, “2 nd male poss. Inside poss. armed”.

13At 17:10 on July 3, 2011, the search warrant was executed.

14Detective Moreira is seriously ill and therefore unable to participate in any way at this trial. The Defence does not seek to examine any of the officers who conducted surveillance on the premises in support of this Application.

15Counsel agree that the only source of the information about the possibility of a second armed male is information derived from surveillance of the premises (86 Carisbrooke Square). Officer Moreira was only one of several who conducted that surveillance and there is no reference in his notes to the possibility of a second armed male. As such, Officer Moreira’s comment about the possible second male may be hearsay.

16All of the notes of all of the officers who conducted any surveillance on July 2 and 3, 2011, including the notes of Officer Moreira, have been disclosed to the Defence along with photographs taken by police during the course of their surveillance.

17The surveillance notes taken on July 3 rd are the notes relevant to information given at approximately 16:45 that there might be an armed male on the premises when the search warrant was to be executed at 17:10 that day. Police notes indicate that three males in addition to the accused were seen by police at or near the address on July 3, 2011:

(a) Mr. Newman, the next door neighbour,

(b) Mr. Honigan a person identified through the licence plate on his vehicle who is known by police to have carried a handgun, and

(c) a third unknown male described by Officers Bishop and Moreira in their notes as wearing a white tank top. (Elsewhere in his notes Officer Bishop referred to an unknown male wearing a vest. At trial Officer Bishop testified that although he used the word tank top in one place and vest in another he was referring to the same article of clothing and the same individual.)

18The Defence position is that the third male is Mr. Boston. Mr. Boston testified on the voir dire that he was carrying a loaded firearm on July 3, 2011, when he entered 86 Carisbrooke Square. He testified that as police approached the premises, he hid his firearm under a cushion in a chair in one of the bedrooms. (The loaded firearm was found on a chair in one of the bedrooms.)

5. The Law

19In R. v. Khelawon (2006), 2006 SCC 57 () , 2 S.C.R. 787 Charron J. held that,

Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities. In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused’s ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms : Dersch v. Canada (Attorney General) , 1990 3820 (SCC) , [1990] 2 S.C.R. 1505. The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose , 1998 768 (SCC) , [1998] 3 S.C.R. 262.

…The criterion of necessity is founded on society’s interest in getting at the truth…The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.” (See also R. v. Mapara , 2005 SCC 23 () , [2005] 1 S.C.R. 358 at para 15 .)

20The reliability requirement can be met in two ways. First, it can be demonstrated that there is no concern as to the truth of the statement because of the circumstances in which it was taken. Factors such as the presence or absence of a motive to lie, voluntariness of the statement, demeanour, whether the statement was made in circumstances that would bring home to the witness the importance of telling the truth, timeliness, absence of collusion, and completeness of the record. ( See R. v. Khelawon , at paras. 61-62 and R. v. B. (K.G.) , 1993 116 (SCC) , [1993] 1 S.C.R. 740 at para. 120 .)

21In the alternative, the circumstances in which the statement was made and extrinsic evidence may serve to confirm the reliability of the evidence. Evidence of taking an oath to tell the truth, opportunity to observe demeanour, accurate recording devices, a certified written transcript, the opportunity to cross-examine, and the absence of factors that would tend to bring the administration of justice into disrepute are considered. ( See R. v. B. (K.G.) supra at para 120 .)

22The Supreme Court of Canada in R. v. Hawkins, 1996 154 (SCC) , [1996] 3 S.C.R. 1043 allowed the transcript of a witness’ testimony from the applicants’ preliminary inquiry to be read in as evidence. The transcript was found to have “sufficient guarantees of trustworthiness”: A preliminary inquiry will involve precisely the same issues and the same parties as the trial. The hearsay dangers associated with testimony in such an adjudicative proceeding are minimal. Preliminary inquiry testimony is given under oath, and is also subject to the adverse party's right to contemporaneous cross-examination. It is only tainted by the lack of the declarant's presence before the trier of fact. ( R. v. Hawkins at paras. 74-81 ) In Hawkins , circumstantial guarantees of trustworthiness inherent in the adversarial process of the preliminary inquiry were found to more than make up for the inability to observe the declarant’s demeanour at trial. (The declarant was unavailable for cross-examination at trial.)

23The Supreme Court in Khelawon held at para. 49 that "... even if the two criteria of reliability and necessity are met, the judge may exclude hearsay evidence where its probative value is outweighed by its prejudicial effect". It explained the scope of trial fairness in this way:

... Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills , 1999 637 (SCC) , [1999] 3 S.C.R. 668 , at paras. 69-76 . In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

24Unfair prejudice has been characterized as follows: First, the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. (See McCormick's Handbook of the Law of Evidence (2nd ed. 1972), at pp. 438-40.)

5. Analysis and Conclusion

25The statement allegedly made by Officer Moreira to other officers is that is that there was possibly another male who was armed on the premises on the day the search warrant was to be executed.

26There is no reference in Officer Moreira’s surveillance notes of a possible second armed suspect. His briefing was based on evidence obtained by many officers who conducted surveillance of the property and those seen near it on July 2 and 3, 2011.

27Detective Moreira did not testify at the Preliminary Inquiry.

28It is therefore not clear whether he had any direct knowledge upon which to base his statement to the other officers or whether he was imparting information he obtained from others.

29I am therefore not satisfied on a balance of probabilities that the statement allegedly made by Officer Moreira to other officers on the day the search warrant was executed is reliable.

30There is no information upon which to judge, (assuming the opinion was expressed by Officer Moreira), what facts, if any, it was based on. The reference in the officers’ notes might be reliable evidence of the fact that the opinion was expressed by Officer Moreira but not of the truth or accuracy of that opinion.

31More importantly, the introduction of this hearsay evidence is not necessary as the Defence has reliable direct evidence of what males police saw enter and leave the premises.

32All of the notes of all of the officers who conducted surveillance of the premises, including Officer Moreira have been produced to the Defence. The Defence also has the identity of the three males in addition to the accused whom police saw at or near the address in question on the day of execution of the search warrant and their history of carrying firearms.

33Given that reliable direct evidence is available, the opinion that there was possibly another male (other than the accused) who was armed on the premises, imparted to officers and contained in their notes should not be made available to the jury.

34If the Defence chooses to call the officers who conducted surveillance on July 3 rd , the accused will be able to make full answer and defence.

35For these reasons the application to introduce the statement allegedly made by Officer Moreira to other officers just before the search warrant was exercised, that there was possibly another male on the premises that was armed, for the truth of its contents is denied.

Thorburn J.