ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-2526
DATE: 2012-09-13

B E T W E E N:

Her Majesty the Queen

B. Bentham, for the Crown

• and -

Ryan James King

H. Epstein and P. Zbarsky for Ryan King

HEARD: September 4, 2012

REASONS FOR JUDGMENT

Arrell J.

Introduction:

[ 1 ] The Crown brings this application to have the audio and written statements of Mr. Don Beckerson, who has died, admitted into evidence as a principled exception to the hearsay rule, on the basis that they meet the test of necessity and reliability.

Facts:

[ 2 ] In the early morning hours of March 22, 2003, Mr. John Daly was stabbed in the head with a screwdriver by an individual alleged to be Mr. Ryan King.

[ 3 ] Mr. Beckerson, on March 23, 2003, after hearing the news of the death of Mr. Daly, contacted the police to advise that he had observed two young males in the vicinity of the murder.

[ 4 ] Mr. Beckerson was interviewed by Detective Moore on March 24, 2003. That interview was recorded. He subsequently died on July 9, 2005 before he could give evidence under oath.

[ 5 ] Mr. Ryan King and Mr. Fitzpatrick were 20 years of age at the time of Mr. Daly’s murder.

[ 6 ] Mr. Haza, who lived at the southeast corner of East 34 th St. and Queensdale Ave., observed two males acting suspiciously around parked cars near his home at approximately 3:00 a.m. on March 22, 2003. He then noticed Mr. Daly, his neighbor, walking eastbound on Queensdale Ave. It became apparent to Mr. Haza that Mr. Daly noticed the suspicious activity of the two boys, and he heard him shout at them. He called 911 while he watched Mr. Daly follow the two boys west on Queensdale Ave. He lost sight of them when the three turned north on East 33 rd St.

[ 7 ] Mr. Haza described the first male as white, in his late teens or early 20’s, approximately six feet tall and weighing between 180-190 pounds. He was wearing a ball cap, white pants, dark colored jacket and carrying a gym bag.

[ 8 ] The second male was described by Mr. Haza as white, maybe a little shorter, darker than the first, same age range, wearing dark pants and having a little huskier build.

[ 9 ] Susan Galloway lived on the southwest corner of East 33 rd and Munn St., which is a very short block north of Queensdale Ave. She heard yelling and swearing outside her home. She looked out her window and saw two young males and an older male. The smaller of the two young males was a distance away standing near a tree on Mr. Galloway’s property. She then observed the larger young male punch the older male in the stomach and then punch the left side of the older male’s head. She left the window for a short time. Upon returning to the window she saw the two younger males walking south on East 33 rd St. but did not see the older male who had been punched.

[ 10 ] Ms. Galloway described the larger young male as white, wearing a baseball cap on backwards, black or navy baggy pants, a dark jacket and being 16-19 years old. She observed the second male as white, shorter than the first at approximately 5’6”, slim, blond or light brown hair, wearing dark clothing, white sleeves and being approximately 16-19 years of age.

[ 11 ] Shortly after Ms. Galloway observed the two young males walking southbound on East 33 rd St, Mr. Haza arrived in his truck having finished his 911 call. At the same time the police arrived in response to that call and Mr. Daly was observed lying in the roadway in front of Ms. Galloway’s home, unconscious, with a serious wound to the left side of his head.

[ 12 ] A number of years later Mr. Ryan Fitzpatrick was arrested on an unrelated driving offence. He ultimately entered into a written agreement with the Crown to provide evidence in relation to the homicide of John Daly.

[ 13 ] The evidence he gave at the preliminary hearing in this case would indicate that he and Mr. Ryan King on the evening of March 21, 2003, were drinking with others in the apartment of Allan King, the brother of Ryan King, at 1 East 35 th St. They left to commit car entries in the area but were interrupted by Mr. Daly who Mr. Ryan King stabbed in the head with a screwdriver. They then fled the area and returned to the apartment at 1 East 35 th St.

[ 14 ] Mr. Fitzpatrick says he was wearing dark clothing, a black Nike coat and no hat. He was 5’6” tall, weighed 132 pounds and had a thin build and light brown hair.

[ 15 ] According to Mr. Fitzpatrick, Mr. Ryan King was wearing khaki pants, a jacket and a dark baseball cap. He was 5’10½” tall and weighed approximately 200 pounds with a heavy build and dark brown hair. The two males, according to Mr. Fitzpatrick, were carrying one knapsack or bag between them to carry their stolen items.

[ 16 ] Mr. Beckerson was 47 years of age on March 22, 2003. He was a Globe and Mail delivery person. He had made a delivery at 10 Ben Lomond Pl. and had parked his car on Concession St. facing west, about half a block west of East 33 rd St. on the north side of Concession St.

[ 17 ] He had his 16 year old son with him who at the relevant time was lying down in the back seat and saw nothing.

[ 18 ] At approximately 2:50 a.m. to 3:00 a.m. Mr. Beckerson noticed in his rear view mirror a male on the corner of East 33 rd Street and Concession St. looking up and down the street. He was carrying a duffel bag. He described this male as white, 18-19 years of age at 5’9” – 6’0” tall, 180-200 pounds, with a medium build and wearing white pants. This male suddenly “darted” north across Concession St. and went into a parking lot on the east side of an apartment building at 805 Concession St.

[ 19 ] Mr. Beckerson then observed in his rear view mirror approximately 25 seconds later a second white male “flying down” East 33 rd St. northbound, who went into the same parking lot as the first male. This male was carrying a white bag, the same age as the first and shorter at approximately 5’7”-5’8” tall and dressed in black.

[ 20 ] Each bag carried by the two males appeared to “be loaded with stuff”. Mr. Beckerson said he could not identify either male by a photograph and admits to not seeing their faces, color of hair, types of shoes or if either were wearing hats. He lost sight of both once they entered the parking lot.

[ 21 ] Later that morning, Mr. Beckerson saw numerous police in the area and subsequently heard of the murder on the evening news. He therefore attended the police station the next day to report what he had seen. He was interviewed by Detective Moore on March 24, 2003 at approximately 9:00 p.m. The interview was audio taped but not videotaped. In the audio Mr. Beckerson calmly describes the above observations without any prompting or leading by Detective Moore. No oath or caution was given although Mr. Beckerson acknowledged that the interview was being recorded and he consented to that.

[ 22 ] On March 25, 2003, Mr. Beckerson is alleged to have dropped off a 3 page handwritten statement. The statement, which is 2 pages stapled to a note, was found by Detective Moore on his desk when he arrived for his next shift at 4:00 p.m. March 25, 2003.

[ 23 ] The 2 page statement is undated, and unsigned. There is no evidence before me as to how it arrived on Detective Moore’s desk and no evidence that it is in Mr. Beckerson’s handwriting. The document is certainly not under oath nor is any caution indicated in it before it was written. I confirm that a note was attached to the statement dated March 25, 2003 which indicates it was “from” Mr. Beckerson, although also unsigned. Significantly, this note makes no mention of a 2 page statement being attached.

[ 24 ] The note indicates Mr. Beckerson believes he saw “the same kid again this morning at 5:35 a.m. The one with the white pants.”

[ 25 ] The 2 page statement goes into more detail as to this sighting of this person in the same general location as the previous sighting, in the dark, as Mr. Beckerson drove by. On a second drive by he saw this person moving. He admits to not getting a good look at his face.

Analysis:

[ 26 ] Hearsay statements, which both of these are, are presumed to be inadmissible.

[ 27 ] The onus is on the Crown to show on a balance of probabilities that the statements are reliable and it is necessary to admit them in this form. The necessity requirement is met where the maker of the statements is deceased, as here. R. v. Khelawon (2006) S.C.C. 57

[ 28 ] The obvious underlying concern of the Court is the inability to test the truth or accuracy of the out of court statements. For the requirement of reliability to be met, the Court must consider the way the statement came about, whether its contents are trustworthy, or whether circumstances will permit the ultimate trier of fact to sufficiently assess its worth. R. v. Couture (2007) 2007 SCC 28 () , S.C.J. No. 28)

[ 29 ] If the statement is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the statement may be said to be reliable. Whether it is true or in fact relied on is up to the trier of fact. R. v. Smith (1992) 1992 79 (SCC) , S.C.J. No. 74 and R. v. Khelawon , supra .

[ 30 ] When there is no real concern about a statement’s truth or accuracy because of the circumstances in which it came about, there is no good reason why it should not be considered by the trier of fact, regardless of its hearsay form. R v. Couture , supra, at para.98

[ 31 ] The trial judge may take into account the presence or absence of corroborating evidence existing independently of the statement itself. R v. Khelawon, supra, at paras. 94-100

[ 32 ] Trial fairness, as a principle of fundamental justice, is the end that must be achieved. 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. R v. Khelawon, supra, at para. 48

[ 33 ] A party who meets the requirement of a principled exception to the hearsay rule removes the exclusionary features as a barrier to admissibility but as Watt J.A. stated:

“…But ascension over one barrier to admissibility does not preordain reception. A trial judge has a residual discretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit). The prejudicial effect of the evidence may overwhelm its probative value. Introduction of the evidence may involve a significant expenditure in time, not commensurate with the value of the evidence. The evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability.”

R v. Candir (2009)ONCA 915 at para 59

[ 34 ] The position of the Crown is that Mr. Beckerson was simply a concerned citizen who came forward with information he thought might be of some assistance to the police. He had no motive to be untruthful. His evidence is corroborated by Haza, Galloway, and Fitzpatrick to a large extent and he in turn corroborates much of their evidence. His statement has all the indicia of reliability. As well his evidence is probative as being capable of providing circumstantial evidence regarding the identity of the deceased’s attacker, close to the time and place of the murder and puts him in the vicinity of where he has access back to his brother’s apartment at 1 East 35 th St. from which there is evidence he had left earlier in the evening.

[ 35 ] The position of the defence is that the statements are neither relevant nor probative to an issue at trial because no proper inference can be made from them regarding identity of the offender; only improper speculation. The statements, according to the defence, do not pass the threshold reliability test because they do not contain sufficient indicia of reliability and even if they did this court should exercise its discretion and not admit them since their probative value is greatly outweighed by their prejudicial effect.

[ 36 ] In dealing first with the note and the 2 pages attached that were found on Detective Moore’s desk, I conclude the Crown has not met the threshold reliability test and they should not be admitted.

[ 37 ] Clearly Mr. Beckerson had no motive to lie; there is no evidence of any undue influence involving him and if the statements were indeed from him it would appear the writings were reasonably contemporaneous with the sighting described. However, these statements were not recorded; there was no oath or caution; there is no proof they were from Mr. Beckerson; there is no evidence he was alone or whether he had help in preparing them; there is no date; there is no signature; there is no evidence of how or when they came to be on Detective Moore’s desk; there is no evidence of continuity.

[ 38 ] I am not persuaded that the Crown has met the threshold reliability test nor has the Crown satisfied me that the statements are indeed from Mr. Beckerson.

[ 39 ] The written statements should also be rejected as having very little probative value. Basically Mr. Beckerson is saying he saw a male similar to the one he saw the night before in the same neighborhood. Regrettably, he admits to not getting a good look at his face, which is what he said about his sighting in the early morning hours of March 23, 2003. Seeing a similar person a second time in the same neighbourhood on another day, in light of my ruling on the audio statement, is of very little probative value.

[ 40 ] I therefore conclude that the reliability and probative value of the written statements are not sufficient to outweigh the prejudicial effect to Mr. King and will not be admitted.

[ 41 ] In dealing with the audio statement, I conclude it is admissible subject to certain editing.

[ 42 ] That statement was recorded and although no oath or caution was given it was clearly acknowledged by Mr. Beckerson that he knew he was being recorded. The statement was given in a very clear and calm manner. It was voluntarily given. There were no leading questions and there is no evidence of any motive on the part of Mr. Beckerson to be anything but truthful and a concerned citizen who had observed something the police may have an interest in. There is significant detail in the recorded statement. The statement was made relatively contemporaneously to the observation. There is no evidence of any undue influence against Mr. Beckerson, there is no exaggeration, and he is candid about how he saw the males and the shortcomings of those observations. His observations, although not identical to the other witnesses, do bear significant similarities and are therefore capable of being corroborative to a certain degree.

[ 43 ] The statement in my view has probative value which is not outweighed by the prejudicial effect on Mr. King. It is capable of corroborating the evidence of Haza, Galloway, and Fitzpatrick and being corroborated in turn by their respective evidence. It is also capable of showing continuity of the movements of the attacker and his identity as well as placing him in proximity to time and place of the murder and the location from which he started that evening and where there is evidence he returned.

[ 44 ] I therefore conclude the audio statement to be reliable and probative. Mr. Beckerson described what he saw and it will be up to the trier of fact to decide whether to accept those observations and, if so, what weight, if any, to be put on them.

[ 45 ] The statement, however, should be edited as it does, in its current form, present some prejudice to Mr. King. For example, such comments by Mr. Beckerson as “I don’t feel like getting my head kicked in” when commenting that he did not follow the male he saw. There is also speculation by Mr. Beckerson as to why the males were running and opinion evidence as to the location and geography of certain apartment buildings and access to them through various parking lots, as well speculation as where various surveillance cameras might be located. Such evidence is speculative at best and better given by someone else who can establish some actual knowledge of the layout of these buildings, and can be cross-examined.

[ 46 ] I have indicated on the transcript of the audio statement in blue highlighter what is admissible. The non highlighted words shall be edited out of the transcript and audio statement.

Arrell J.

Released: September 13, 2012

COURT FILE NO.: 10-2526
DATE: 2012-09-13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen - and – Ryan King REASONS FOR JUDGMENT Arrell J. HSA//dm

Released: September 13, 2012