ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 040/10
DATE: 20121116

B E T W E E N:

HER MAJESTY THE QUEEN

Serge Hamel, for the Respondent

Respondent

• and -

WILLIAM BATISSE

David Bennett, for the Applicant

Applicant

HEARD: November 14, 2012

D E C I S I O N O N A P P L I C A T I O N

WILCOX, J.

[ 1 ] William Batisse is charged with two counts of invitation to sexual touching, three counts of sexual exploitation, three counts of sexual interference and three counts of sexual assault alleged to have taken place in a six year span between 1989 and 1994.

[ 2 ] The defence brought an Application to have the accused’s statement to police of March 12, 2010 excluded from evidence pursuant to s. 24(2) of the Charter on the grounds that his rights under s.s. 7, 10(b) and 11(c) of the Charter were breached or, in the alternative, because it was not made voluntarily.

[ 3 ] A preliminary issue arose regarding the entry into evidence of a pre-sentence report (PSR). The accused had pled guilty to one of the counts against him, and a pre-sentence report had been prepared by a probation officer, Sue Dane, and dated January 13, 2012. The guilty plea was subsequently struck. Defence counsel included a copy of the PSR in the Application Record intending to use its contents to support the Application. Crown counsel objected to such use of the PSR.

[ 4 ] More specifically, the PSR contains statements about the accused’s intellectual abilities, or lack thereof. The accused’s mother told the PSR’s author that the accused had been assessed and labeled as “mentally retarded”. Also, documents were obtained by Ms. Dane from the accused’s file with the Cochrane-Temiskaming Resource Centre and referred to in the PSR. A psychometric report from January, 1979 said that the accused experienced difficulties with all subjects at school. Testing showed his intellectual functioning was in the borderline normal range. Two doctors referred to him as “retarded”. Other reports referred to developmental delay.

[ 5 ] The Notice of Application alleges that the police officer involved exploited the accused’s clear intellectual and psychological deficits in order to procure a statement from him. In argument, defence counsel said that the PSR addressed live issues, being the accused’s intellectual capacity as well as unspecified family issues. He sought the PSR’s admission into evidence on two bases, s. 23 of the Canada Evidence Act, and the common law rule regarding the admissibility of public records.

[ 6 ] The Crown argued that the PSR contained hearsay which the Criminal Code of Canada allows only for sentencing purposes. It would be unfair, he said, to allow its use for the purposes the defence intended because the Crown would not be able to cross-examine on it. He saw it as a way around having the accused testify and be subject to cross-examination. The requirements of reliability but not necessity were met, he opined, because the accused could testify as to his educational history and other matters. Also, there could be evidence from others about the accused’s intellectual disabilities. The Crown attempted to draw an analogy with prior consistent statements, saying that use of the pre-sentence report is self-serving.

[ 7 ] In R. v. W. B. C ., 2000 5659 (ON CA) , [2000] O.J. No. 397 the Ontario Court of Appeal dealt with the admissibility of documents at common law and under s. 23 of the Canada Evidence Act. It noted that the “Canada Evidence Act is not an exclusive code with respect to proof of documents” (paragraph 29). At common law, documents may be admissible on two bases, the Khan exception to the hearsay rule, and that the document is a public document. The principles of necessity and reliability underlie both.

[ 8 ] This raises the question as to whether the PSR is a public document. The court in W. B. C. referred to R. v. P.(A.) (1996), 1996 871 (ON CA) , 109 C.C.C. (3d) 385 in which Laskin, J. A. articulated four criteria for the admissibility of a public document. These are:

i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public,

ii) the public official must have made the document in the discharge of a public duty or function,

iii) the document must have been made with the intention that it serve as a permanent record, and

iv) the document must be available for public inspection.

[ 9 ] There was no suggestion that the PSR failed to meet the first three criteria.

[ 10 ] Regarding the fourth criteria, the Crown queried whether the PSR met it. The court in W. B. C. noted that there is some uncertainty as to whether it still must be met. I note that its purpose is to give further assurances of reliability. As noted above, the Crown here has acknowledged reliability. Therefore, while I am inclined to the view that the PSR is available for public inspection insofar as the courts operate in public, there is no need to decide that point for present purposes.

[ 11 ] I find that the PSR is a public document. That would be sufficient to make it admissible, subject to further comments below, but I will also deal with the Khan exception.

[ 12 ] As the Crown has acknowledged reliability, I will focus on necessity.

[ 13 ] The Crown argued that the requirement of necessity was not met because the accused could testify and the evidence in the PSR could come in in other, unspecified, ways which would allow for cross-examination. I note, however, that the PSR’s evidence regarding the accused’s intellectual capacity is not the hearsay of the accused, but of others. I do not see that having the accused testify would add much, if anything. Other than his evidence regarding how he did in school, his evidence would be hearsay regarding what others had stated about his intellectual capacity.

[ 14 ] Case law and commentary indicates that “necessity” means “reasonable necessity”, extending even to situations where it is only expedient or convenient. It is, of course, generally preferable if a witness is called. Here, the important witnesses would be the doctors and assessors whose reports were referred to in the PSR. Given the passage of time, it is unlikely that, even if they could be found and brought to testify, they could recall more than what was in their reports. There would be little if any gain, for the inconvenience and loss of expediency.

[ 15 ] Therefore, I find that the requirement of necessity is met.

[ 16 ] In W. B. C. the court noted that even when the requirements of necessity and reliability are met, there remains a discretion to exclude the evidence if admitting it would make the trial unfair. However, it remains open to the Crown to call evidence to counter that of the PSR, thereby addressing any potential unfairness to it.

[ 17 ] On the other hand, in their book The Law of Evidence, Sixth Edition, at page 118, Paciocco and Stuesser note that:

It is recognized that where hearsay evidence is tendered by an accused, a trial judge can relax the strict rules of admissibility where it is necessary to prevent a miscarriage of justice. Such preferential treatment acknowledges the liberty interest of the accused.”

Also, in R. v. Albright 1987 26 (SCC) , [1987] 2 S. C. R. 383, the Supreme Court of Canada said in paragraph 26:

“The conduct of a trial in general, including the application of the rules of evidence in [page 396] a given case, must not result in the trial being unfair because the accused has been denied a full opportunity to prepare his case, challenge and answer the Crown’s case. If a rule of law, statutory or common law, were framed in such a way that it would be per se a violation of the right to a fair trial, then the statute would be declared inoperative or the common law declared to be otherwise”.

So, even if I have otherwise erred in my analysis, the result can be justified on these grounds. In my view, not allowing the PSR into evidence would be unfair to the accused and could result in a miscarriage of justice.

[ 18 ] In view of the above, I find the PSR to be admissible in evidence at common law both as a public document and under the Khan exception. Given that, it is not necessary to deal with admissibility under the Canada Evidence Act.

Justice J. A. S. Wilcox

Released: November 16, 2012