Her Majesty the Queen v. Leon Alexander and Edmund Benjamin

COURT FILE NO.: CR12-70000609 DATE: 2012-10-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen

• and - Leon Alexander and Edmund Benjamin

Counsel: Karen Erlick and Karen Simone for the Crown Edward Sapiano for Leon Alexander Stephen Bernstein for Edmund Benjamin

HEARD: October 4th, 2012

M. FORESTELL J.

Reasons for Ruling on Admissibility of Hearsay statements of kitson robertson

1. History of the Case

[1] Andy James and Brandon Ramdeen were stabbed in the early morning hours of June 21, 2009, in a Toronto parking lot, following a boat cruise event called the “Island Link-Up”.

[2] At the end of the cruise and just prior to disembarking from the boat, Mr. James and Leon Alexander (also known as “Buja”) were observed to be arguing. Mr. James had confronted Mr. Alexander about “touching” Mr. James’s girlfriend, Anna George. Mr. Alexander responded angrily and was escorted off the boat.

[3] A further confrontation between Mr. Alexander and Mr. James was observed by witnesses in the parking lot after Mr. James disembarked.

[4] After the confrontation, Mr. James was seen to be bleeding from a wound to his stomach. In the minutes before he went to the hospital, several people spoke to him and asked him what had happened. Kitson Robertson was one of the witnesses who approached Mr. James after he was injured. Mr. Robertson had observed the earlier dispute between Mr. James and Mr. Alexander. Mr. James gave Mr. Robertson a description of his assailant that made Mr. Robertson believe that Kimron Bengy (also known as “Sico” or “Siko”) had stabbed Mr. James. Mr. Robertson went and spoke to Mr. Bengy and asked him why he “stabbed the guy”. Mr. Bengy responded, “Don’t worry. He doesn’t know it was me.” Mr. Robertson observed blood on Mr. Bengy’s shirt and pointed it out to Mr. Bengy.

[5] Mr. Robertson saw another fight begin involving friends of Mr. James and Edwin Modeste and his friends. He saw a man in the fight fall to the ground, try to get up and fall again.

[6] Witnesses gave various accounts of the altercation between Mr. James’s friends and Mr. Modeste. No witness observed the actual stabbing of Mr. Ramdeen. Mr. Bengy made an inculpatory statement to the police in relation to the Ramdeen stabbing.

[7] Both Mr. James and Mr. Ramdeen died as a result of stab wounds.

[8] Five men were charged in relation to the two deaths.

[9] Mr. Bengy and Mr. Modeste were jointly tried earlier this year.

[10] Mr. Bengy was tried for second degree murder in relation to Andy James and Brandon Ramdeen. He was acquitted of the charge of second degree murder of Mr. James and convicted of the second degree murder of Mr. Ramdeen.

[11] Mr. Modeste was charged and convicted of the manslaughter of Brandon Ramdeen.[^1]

[12] On the indictment in the current trial, Leon Alexander is charged with second degree murder in relation to the death of Andy James and with manslaughter in relation to the death of Mr. Ramdeen. Edmund Benjamin (also known as “Shaggy”) is charged with manslaughter in relation to the death of Mr. Ramdeen.

[13] Mr. Alexander and Mr. Benjamin have pleaded not guilty to the charges.

[14] Anski Julien is also charged with the manslaughter of Mr. Ramdeen. Anski Julien will be tried separately.

[15] Kitson Robertson gave a statement to the police about his observations four days after the event. Prior to the preliminary inquiries of the accused, Mr. Robertson was deported. An attempt was made to have Mr. Robertson testify by videolink at the prelimnary inquiry. He failed to attend at the location for the videolink.

[16] At the trial of Mr. Modeste and Mr. Bengy, the Crown applied to introduce the police statement of Mr. Robertson for the truth of its contents. The application was denied. Mr. Robertson later made himself available by videolink and testified under oath at the trial as a Crown witness.

2. The Nature of the Application and the Positions of the Parties

[17] The Applicant, Leon Alexander, applies to introduce into evidence the police statement of Mr. Robertson and the examination-in-chief of Mr. Robertson under the principled exception to the hearsay rule. The Applicant submits that it is necessary to introduce the out-of-court statements because Mr. Robertson has not responded to any calls or emails from the Applicant or from the police. The witness is not available to testify. The Applicant submits that the statements are reliable. He further submits that it would be unfair to introduce the cross-examination from the last trial because the parties cross-examining the witness were adversarial in interest to the Applicant.

[18] The Respondent Crown takes the position that neither the police statement nor the trial testimony of Mr. Robertson is admissible because neither meets the requirements of necessity and reliability. Alternatively, the Crown argues that if the examination-in-chief is admitted, the cross-examination must also be admitted to provide the jury with the tools to properly assess the ultimate reliability of the evidence.

[19] Mr. Benjamin opposes the introduction of any of the trial testimony of Mr. Robertson. Mr. Robertson was asked about the participants in the second fight in his police statement. He did not name Mr. Benjamin as a participant. At the trial, when asked about the participants, he testified that Mr. Benjamin and Mr. Alexander were “kicking and cuffing” Mr. Ramdeen when he was on the ground. Mr. Benjamin submits that he has had no opportunity to cross-examine Mr. Robertson on this important evidence and that it would be unfair to admit it. He argues that it is unreliable and that its probative value is outweighed by its prejudicial effect.

3. Summary of the Statement and Testimony of Kitson Robertson

[20] Mr. Robertson attended police headquarters and gave a statement four days after the event. The statement was not under oath because there was no commissioner of oaths available. However the statement was videotaped and Mr. Robertson was given a “KGB caution”. After the police statement and before the preliminary inquiry in that case, Mr. Robertson was ordered to leave the country by immigration. He returned to Grenada. In order to secure his evidence at the preliminary inquiry, arrangements were made by the Crown for Mr. Robertson to testify by videolink. Although there were two separate preliminary inquiries, it was agreed that all counsel would have an opportunity to cross-examine Mr. Robertson when he testified by videolink. On the dates set to receive Mr. Robertson’s evidence, he failed to attend.

[21] Prior to the trial of Mr. Modeste and Mr. Bengy, the police attempted to locate Mr. Robertson and secure his attendance at the trial in person or by video. It was learned that Mr. Robertson was not permitted to return to Canada. Mr. Robertson was unwilling to testify if he could not return to Canada to do so. The Crown brought an application to introduce the police statement of Mr. Robertson for the truth of its contents at the trial of Mr. Bengy and Mr. Modeste. The application was not granted. I ruled that the Crown had failed to show that the evidence met the requirements of necessity and reliability.

[22] During the trial of Mr. Modeste and Mr. Bengy, Mr. Modeste’s bail was varied to permit him to contact Mr. Robertson and ask him to testify. Mr. Robertson made himself available and testified by video from Grenada. Following his examination-in-chief and partway through his cross-examination by Mr. Bengy’s counsel, Mr. Robertson failed to return to continue his evidence. A Toronto police officer flew to Grenada and located Mr. Robertson. Mr. Robertson then attended to complete his testimony.

[23] Mr. Robertson’s testimony at the trial of Mr. Modeste and Mr. Bengy was not consistent with his police statement in several areas. He was cross-examined on the inconsistencies. He was also cross-examined on his general credibility.

[24] I will not set out every detail of Mr. Robertson’s police statement and testimony. I will only summarize the important areas:

(i) The personal details of Mr. Robertson and his relationship with the parties:

• He was 26 years old, born in Grenada, and came to Canada in July of 2000. He was not a citizen at the time but was “waiting for immigration right now.” (police statement)
• He was friends with Mr. James and could only recognize Mr. Ramdeen . He was friends with Anski Julien and Edwin Modeste. He knew Shaggy and Buja, but was not friends with them. He knew Mr. Bengy only enough to say hi and bye. (examination-in-chief)

(ii) Mr. Robertson’s attendance at the boat cruise:

• Mr. Robertson attended the boat cruise on June 20-21, 2009. He went with Mr. Modeste, Andre Julien and a girl. (police statement and testimony)

(iii) Mr. Robertson’s observations of the confrontation between Mr. James and Mr. Alexander on the boat:

• When leaving the boat he “noticed Bojah (Leon Alexander) and Andy having a heated discussion.” (police statement and testimony)

(iv) Mr. Robertson’s involvement in the confrontation on the boat:

• He “got in-between it. Ahm Shaggy took Bojah off the boat with a security.”(police statement)
• He saw the argument and saw Shaggy and security get between and take Buja off the boat. (examination-in-chief)
• He saw the argument from 15-20 feet away. (cross-examination by Mr. Bengy)
• When reminded of his statement to the police that he got between the men: “I may have gotten into it too…Yes, yes, I think I did get into it.” (cross-examination by Mr. Bengy)

(v) Mr. Robertson’s observations of the fight between Mr. James and Mr. Alexander off the boat:

• He remained on the boat after Mr. James disembarked. While still on the boat, he turned around and saw Buja and Mr. James “having a heated argument again.” (police statement and testimony)
• When Mr. Robertson turned to see, the fight was “separated” and he observed that “Edwin was holding Buja.” Mr. Bengy was around but “more back” … “about thirty feet way (sic).” He never saw Mr. Bengy get close to Mr. James. (police statement)
• He did not see Anski at the first fight at all. (police statement)
• He did not see Shaggy at all: “I think he was giving out flyers.” (police statement)
• He saw Shaggy pulling on Buja. “I think Anski was there too.” (examination-in-chief)
• “If I said Edwin to the police, it was Edwin.” (cross-examination)

(vi) Mr. Robertson’s conversation with Mr. Alexander after the confrontation:

• He said to Buja, “why you gotta go after the guy again. Like you already parted on the boat.” (police statement)
• When he spoke to Buja, Shaggy, Andre and Anski were there. (examination-in-chief)
• When he spoke to Buja, Edwin and Andre were there and Shaggy and Anski were separate. (cross-examination)

(vii) Mr. Robertson’s conversation with Mr. James:

• He said to Mr. James, “What happened?” Mr. James told him the “short black guy juke him. The short black guy that does be with Anski and them.” (police statement and trial testimony)
• He went to Mr. Bengy and said “why you stab the guy for? Are you stupid?” Bengy replied, “Don’t worry – he doesn’t know it was me.” (police statement and trial testimony)
• Mr. Robertson replied to Mr. Bengy, “why you think I come to you? He just told me it was you and look there is blood on your shirt.” (police statement)
• Mr. Robertson replied “of course he does. That’s why I’m talking to you. He told me the short black guy that be with Anski and them” and pointed out that there was blood on his shirt. (trial testimony)

(viii) Mr. Robertson’s actions after the conversation with Mr. Bengy:

• Mr. Bengy had moved away and was with Mr. Modeste and Andre. Mr. Robertson saw Mr. James talking to some other guys and pointing at where Mr. Modeste was with Sico and Andre. (police statement)
• Mr. Bengy moved away in the direction of Shaggy, Anski and Buja. Mr. Robertson went to Mr. Modeste and Andre and told them about his conversations with Mr. James and with Mr. Bengy. After he told them, Mr. Modeste went towards Mr. Bengy, Anski, Shaggy and Buja. (examination-in-chief)
• He did not tell the police about his conversation with Mr. Modeste and Andre because it slipped his mind. (cross-examination by Mr. Bengy)
• The conversation with Mr. Modeste and Andre did not occur (cross-examination by Mr. Modeste)

(ix) Mr. Robertson’s observations of the start of the second fight:

• He observed a guy with a baseball bat approach Mr. Modeste and the others and say, “Why you stab my brethren for.” “You stabbed my brethren and someone is going to pay.” Mr. Modeste responded, “I don’t know what you’re talking about.” At the time, Andre, Mr. Bengy and Mr. Alexander were with Mr. Modeste. (police statement)
• The guy with the bat said “Why you stab Andy?” At the time Mr. Modeste was with Buja, Shaggy and Anski. Andre was with Mr. Robertson. (examination-in-chief)
• He made a mistake when he told the police that Mr. Modeste was with Andre. He meant Mr. Modeste was with Anski. (cross-examination by Mr. Bengy)
• The man with the bat pushed Mr. Modeste with two hands. Mr. Robertson was not sure if he had the bat in his hands. (police statement)
• Mr. Robertson thought someone grabbed the bat from the man before he pushed Mr. Modeste (examination-in-chief)
• It is possible that the man still had the bat in his hands when he pushed Mr. Modeste. (cross-examination by Mr. Bengy)
• The man still had the bat in his hands when he pushed Mr. Modeste (cross-examination by Mr. Modeste)
• Mr. Robertson was not sure if the man had the bat in his hands when he pushed Mr. Modeste (re-examination)

(x) Mr. Robertson’s observations of the second fight and Mr. Ramdeen:

• Mr. Modeste swung at the man with the bat but missed, the man moved back and the man who had been behind him came forward and grabbed Mr. Modeste. The two men fell onto a car. Buja, Anski and Sico went in. Andre went in but was not fighting; he went in to get Mr. Modeste off the car. Anski was there trying to part them. He did not notice Shaggy there. Sico went in and out of the fight. After he went in, out the man fell on the ground. Then they all backed off. Mr. Ramdeen tried to get up and then fell on his face. (police statement)
• The guy with the bat backed off when he saw Buja and the others getting closer. Then Mr. Ramdeen jumped on Mr. Modeste and grabbed him by the neck and they fell back on the car. Then everybody got involved: Buja, Shaggy, even Andre. He thought Anski was there too. Buja and Shaggy were kicking and cuffing Mr. Ramdeen. He saw Sico running away from the fight. He never saw Sico in the fight. He did not see Sico before he saw him running away. Andre pulled Mr. Modeste and Shaggy away. Anski pulled Buja away. When they were pulled away, Mr. Ramdeen was on the ground. (examination-in-chief)
• He did not tell the police that Shaggy was involved in the second fight because he forgot. (cross-examination by Mr. Bengy)
• He did not see Sico before he saw him leaving the area. (cross-examination by Mr. Bengy)
• He saw Sico go into the fight. (cross-examination by Mr. Modeste)

(xi) Mr. Robertson’s account of the ride home:

• He left with Buja, Mr. Modeste, Andre and a girl. (police statement and examination-in-chief)
• He does not know anyone named Copper (examination-in-chief)
• He dropped off Copper first (examination-in-chief)
• In the car, he told the people in the car that Sico stabbed Mr. James. Mr. Modeste made a call. He could only hear one side of the conversation. Mr. Modeste was angry. (police statement and testimony)

(xii) Mr. Robertson’s account of Mr. Bengy’s possession of a knife

• Earlier on the boat cruise, Sico gave Mr. Robertson a knife to fix his belt. (Police statement and testimony)

4. The Legal Principles

The legal Framework

[25] The statement to the police and the examination-in-chief of Mr. Robertson are relevant to live issues in the trial. The statements are also clearly hearsay. They are statements tendered for the truth of their contents and there is no opportunity for contemporaneous cross-examination. A party seeking to adduce hearsay evidence under the principled exception must establish necessity and reliability on a balance of probabilities.[^2] Even where necessity and reliability are proven, a trial judge has a residual discretion to exclude the evidence if its probative value is outweighed by its prejudicial effect. A trial judge also retains a residual discretion to require editing of the prior statement or testimony to ensure a fair trial.

[26] In this case, necessity is not conceded. I find that necessity has been proven. The Applicant need not take steps that are clearly futile. Mr. Robertson has failed to respond to telephone and email messages from the police and from the Applicant. It is fair to infer from the silence of the witness and from his past actions that he is deliberately choosing not to respond.

[27] The real issues in this case are whether the Applicant has met the reliability requirement and whether I should exercise my residual discretion to exclude the evidence.

[28] The Supreme Court of Canada in R. v. Khelawon[^3] explained that the reliability requirement for the admission of hearsay may be established by the party tendering the evidence in two ways: the party may show that the circumstances in which the statement came about provide a sufficient circumstantial guarantee of trustworthiness or the party may point to the presence of adequate substitutes for the safeguards traditionally relied on to test trial evidence.

[29] In assessing reliability, I am concerned with threshold and not ultimate reliability. In Khelawon, the Supreme Court of Canada explained the reliability assessment in R. v. Hawkins[^4] as follows:

When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not – recall U. (F.J.).[^5]

Prior Testimony and the Principled Approach

[30] The Supreme Court of Canada and our Court of Appeal have considered the admissibility of prior testimony under the principled exception, although not in precisely the same circumstances as those that have arisen in this case.

[31] The Supreme Court of Canada in Hawkins considered the admissibility of the evidence of a witness given at the preliminary inquiry where the conditions for admission under s. 715 of the Criminal Code[^6] had not been met.[^7] The court held:

In cases where the testimony of a witness before a preliminary inquiry is not rendered admissible by s. 715 of the Code, the testimony may still be substantively admissible at the ensuing trial under a principled exception to the hearsay rule if the witness's prior statements meet the dual requirements of "necessity" and "reliability". In our view, statements before the inquiry will generally be necessary at trial where the witness is no longer available to testify. Such prior statements will also generally be reliable where they were delivered under oath and subject to the opportunity of cross-examination within a larger adjudicative proceeding which promotes the search for truth. Accordingly, under the Khan, Smith and B. (K.G.) framework, a trial judge may permit the trier of fact to consider such statements for the truth of their contents if the witness could have offered such statements into evidence as a competent and available witness at trial according to the ordinary rules governing the admissibility of evidence. Where necessary, the trial judge should properly caution the jury in relation to the proper weight to be attached to such statements given the witness's lack of presence in court. The trial judge, of course, continues to be vested with the residual discretion to exclude such statements where their probative value is outweighed by their risk of prejudice. [Emphasis added.][^8]

[32] The Court in Hawkins did not determine the admissibility of testimony from one criminal trial in the trial of a different accused. The Court of Appeal for Ontario has dealt with the admissibility of testimony from one criminal proceeding in another related proceeding in two cases: R. v. Merz[^9] and R. v. Backhouse.[^10]

[33] In Merz, the Court of Appeal considered the admissibility, at a murder trial, of testimony of the deceased at her own trial for threatening her son. In the course of that testimony, the deceased had said that her spouse (the accused in the murder trial) had threatened to kill her. The Court of Appeal held that the prior testimony was not admissible. The Court reached this conclusion for several reasons: the deceased had a motive to lie, the cross-examination by the Crown was held not to be an adequate substitute for cross-examination by the accused, and the evidence of the threats was collateral to the main issue at the trial of the deceased.

[34] In Backhouse, the Court considered the admissibility, at a murder trial, of the evidence of the deceased given at the accused’s trial for an offence under the Highway Traffic Act.[^11] The accused in the murder trial had previously been charged in relation to an incident where he ran into a person on a bicycle. The deceased had been with the person who was struck. At the Highway Traffic Act trial, the deceased testified that the accused had been the driver of the car and that the accused, after hitting the cyclist, had said to the deceased, “That was meant for you.” The Court of Appeal held that the trial judge did not err in admitting the evidence. Rosenberg J.A. writing for the court said as follows:

While the two cases did not involve precisely the same issue, the questions of identity and of motive or animus were important in both. The deceased was cross-examined on these issues in the Highway Traffic Act trial. Indeed, as the trial judge noted, it was the appellant's agent who adduced the evidence of animus from the deceased. The appellant could hardly complain that this evidence, which he relied upon at the Highway Traffic Act trial, was unreliable. The issues in the two cases were sufficiently similar that the opportunity for contemporaneous cross-examination provided a sufficient circumstantial guarantee of trustworthiness. At common law, there was no requirement that the issues in the two proceedings be identical. It was sufficient that "the questions in issue shall be substantially the same, or ... that the evidence relate to the same subject, or substantially involve the same material question, this does not require that all the issues in the two actions shall correspond", per King J. in Walkerton (Town) v. Erdman Estate (1894), 1894 9 (SCC), 23 S.C.R. 352 at p. 366. Whether or not this evidence would have been admissible at common law, the requirements of the common law exception are instructive in helping to determine the question of reliability. See R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.), at para. 20.[^12]

[35] Rosenberg J.A. added the following caveat in Backhouse:

I would add one caveat. I should not be taken as holding that testimony in any prior proceeding in which the accused happened to be a defendant would be admissible, even if the issues were similar in the two proceedings. For example, the first proceeding may be in respect of such a trivial matter that the accused might well not have felt it worthwhile to mount a full defence. Or, the evidence that the prosecution seeks to read in at the second trial may have been tangential to the issues in the first trial. In either case, it would be unfair to permit the prosecution to adduce the evidence in the second much more serious case. In my view, the trial judge would have the discretion to exclude the evidence to ensure that the appellant receives a fair trial. See R. v. Potvin (1989), 1989 130 (SCC), 47 C.C.C. (3d) 289 (S.C.C.) at 307. The trial judge could also refuse to admit the evidence under the principled approach because the probative value was outweighed by its prejudicial effect. In this case, the trial judge considered whether the probative value of the evidence outweighed its prejudicial effect and concluded that the evidence should be admitted. I see no error in his decision in that respect.[^13]

[36] In determining the admissibility of prior testimony, the factors that must be considered include:

a) The similarity of the issues in the two proceedings;

b) The motive of the declarant to lie;

c) The parties to the proceedings and their interests in supporting or challenging the evidence;

d) The opportunity of the parties to cross-examine or the adequacy of the cross-examination by another party with similar interests.

5. The Application of the Principles

[37] In this somewhat unusual application, the Applicant seeks the admission of a “package” of out-of-court statements, which only include the police statement and the examination-in-chief of Mr. Robertson.

[38] The police statement was videotaped and Mr. Robertson was cautioned. It was not made under oath. The circumstances of the taking of the statement provide some circumstantial guarantees of trustworthiness. The videotape enables the trier of fact to assess demeanour. The location and circumstances of the statement, including the warning to Mr. Robertson about the consequences of lying, would have brought home to him the gravity of the occasion.

[39] There are, however, other factors that call into question the reliability of the police statement. Mr. Robertson was a friend of Anski and Mr. Modeste. He had driven Mr. Modeste to the police station. He had a motive to assist his friend.

[40] A further factor to be considered in assessing the reliability of the police statement is that the subsequent testimony of Mr. Robertson under oath at the trial of Mr. Bengy and Mr. Modeste conflicted with his police statement. If the jury were provided with the police statement and the examination-in-chief, some of those inconsistencies would be apparent. Without the cross-examination, the full extent of the inconsistencies would not be available to the jury. In addition, under cross-examination at the Bengy and Modeste trial, Mr. Robertson’s general credibility was attacked. The jury, if provided only with the police statement and the examination-in-chief, would not be in a position to assess the general credibility of Mr. Robertson.

[41] The testimony of Mr. Robertson at trial was received under oath. This provides some circumstantial guarantee of trustworthiness. However, in light of the numerous and significant inconsistencies between the statement to the police and Mr. Robertson’s examination-in-chief at trial, the fact that the evidence was given under oath does not seem to address the hearsay dangers.

[42] The attempt by Mr. Robertson to avoid cross-examination and his motive to lie to assist his friend are further factors that tend to show that his statements are not true.

[43] Without cross-examination or an adequate substitute for cross-examination, the record does not support a finding that the police statement and examination-in-chief are reliable. The Crown’s examination-in-chief of Mr. Robertson at the Bengy and Modeste trial is not an adequate substitute for cross-examination.

[44] Had the Applicant sought the admission of the police statement and the full testimony of Mr. Robertson, including cross-examination, my conclusion may have been different. Although the parties and issues were not identical, Mr. Robertson was extensively cross-examined on the inconsistencies between his police statement and his evidence-in-chief and he was fully cross-examined on issues affecting his general credibility.

[45] However, the Applicant has only sought the admission of the police statement and examination-in-chief and I am ruling only on the application that is before me.

[46] I find that without cross-examination or an adequate substitute, reliability has not been made out. Both the police statement and the examination-in-chief are inadmissible on that basis.

[47] If I am wrong in my finding on reliability, I would nevertheless have excluded the statement and examination-in-chief on the basis that its prejudicial effect outweighs its probative value. The probative value of the evidence is admittedly high. The evidence of Mr. Robertson points to the guilt of another person. However, the risk of prejudice is also high because the trier of fact would have a misleading picture of the evidence of the witness.

[48] In light of my findings on reliability, I have not addressed the potential prejudice to Mr. Benjamin if the trial testimony of Mr. Robertson were admitted. Mr. Benjamin has had no opportunity to cross-examine the witness and the evidence is damaging to his position. Mr. Robertson would, without appearing and being cross-examined by Mr. Benjamin’s counsel, provide eyewitness testimony placing Mr. Benjamin at the fight as an active participant. This evidence is in conflict with his statement to the police. To admit this portion of the evidence without any opportunity to cross-examine might operate unfairly to Mr. Benjamin. It is not necessary for me to address this potential unfairness in the context of this application in light of my conclusion on the inadmissibility of the statement and the examination in chief without the cross-examination.

6. Conclusion

[49] For the reasons above, the police statement and examination-in-chief of the witness, Mr. Robertson, without the cross-examination, are not admissible.

[50] I should not be seen to have ruled on the admissibility of the police statement and examination-in-chief with the cross-examination as no party has made such an application.

M. Forestell J.

Released: October 16, 2012

[^1]: Mr. Modeste had initially been charged with the murder of Mr. James, but the charge was withdrawn by the Crown in December 2011. [^2]: R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829, 110 C.C.C. (3d) 481, at p. 839. [^3]: 2006 SCC 57, [2006] 2 S.C.R. 787. [^4]: 1996 154 (SCC), [1996] 3 S.C.R. 1043, 111 C.C.C. (3d) 129. [^5]: Supra note 3, at para. 92. [^6]: R.S.C. 1985, c. C-46. [^7]: Supra note 4, at para. 76. [^8]: Ibid. at para. 82. [^9]: (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, 140 C.C.C. (3d) 259. [^10]: (2004), 2005 4937 (ON CA), 195 O.A.C. 80, 194 C.C.C. (3d) 1. [^11]: R.S.O. 1990, c. H-8. [^12]: Supra note 11, at para. 184. [^13]: Ibid. at para. 188.