COURT FILE NO.: NJ-12-3562
DATE: 2012-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
K. McKenna, for the Crown
- and -
Darryl Jamie House
P. Boushy, for the Accused
HEARD: November 26, 2012
D. A. BROAD, J.
RULING ON CROWN APPLICATION FOR ADMISSION OF WITNESS STATEMENTS FOR THE TRUTH OF THEIR CONTENTS
[1] The accused is charged with two counts of attempted murder and one count of robbery. The charges arise out of an incident which occurred late on June 28 and early June 29, 2011 in which two victims were stabbed in the neck in an unprovoked attack outside a convenience store in the City of Hamilton. The major issue in the case is that of identification of the assailant.
[2] The Crown made an application for admission of two statements of the co-accused Damien Nelson for the truth of their contents, under the principled exception to the hearsay rule. The first statement consisted of the Agreed Statement of Facts which were read into the record on December 15, 2011 following Mr. Nelson’s guilty plea to being an accessory after the fact. The Agreed Statement of Facts was read into the record by the prosecuting Crown Attorney and was acceded to by Mr. Nelson’s counsel on his behalf. The second statement consisted of a video-taped and transcribed interview of Mr. Nelson conducted by Officer Pereira of the Hamilton Regional Police Service on July 2, 2011.
The Agreed Statement of Facts on the Guilty Plea
[3] Mr. Nelson was originally charged with aggravated assault. He pleaded not guilty to that charge but pleaded guilty to being an accessory after the fact to aggravated assault. At this trial Mr. Nelson testified to having no memory of any of the facts giving rise to the charge against him, and no memory of the Agreed Statement of Facts being read into the record following his guilty plea. He professed no memory of having reviewed the Agreed Statement of Facts with his counsel. The only thing that he remembers concerning his court attendance on December 15, 2011 was meeting his counsel for the first time, being a junior associate of the firm he had earlier retained, and being advised by her that if he pleaded guilty he would be released that day. The transcript reveals that although he did respond verbally to questions from the presiding judge that he understood the nature of the offence to which he was pleading, he was not asked to signify his personal agreement nor assent to the Agreed Statement of Facts. He did not sign the statement, nor did his counsel; however, as indicated, she verbally acceded to it on the record.
[4] In an earlier ruling, I granted leave to the Crown to cross-examine Mr. Nelson under section 9(2) of the Canada Evidence Act on the Agreed Statement of Facts. He was also cross-examined by defence counsel. The Crown then made application for admission of the Agreed Statement of Facts for the truth of its contents. The statement, in addition to detailing the underlying facts, had the effect of implicating the accused Darryl House in the stabbings giving rise to the charges against both men. The Crown also made application for admission of the videotaped interview of Mr. Nelson for the truth of its contents. On the voir dire, defence counsel consented to leave being given to the Crown to cross-examine Mr. Nelson on the video-taped statement, following which defence counsel also cross-examined Mr. Nelson on it.
The Video-Taped Interview
[5] The video-taped interview was some two hours in duration. Mr. Nelson described being with a male and a female from 2:00 p.m. on June 28, 2011 until after midnight and driving them, at the male’s request, to various places in the Hamilton area in his vehicle. In the late evening at approximately 11:30 p.m. he described arriving at the Anytime Convenience Store with the male and female. At his male companion’s urging Mr. Nelson asked two young men who were sitting on a bench at the front of the store for cigarettes. To Mr. Nelson’s surprise and shock, his male companion, without any provocation, stabbed each of the two young men in the neck. He immediately got back into his vehicle, as did the male and female, and they drove away, returning to his father Michael Nelson’s apartment, where they had been earlier in the day. He subsequently dropped the male and female off on Sanford Street near Stinson in the City of Hamilton, approximately three blocks from his father’s apartment.
[6] Mr. Nelson described how upset and angry he was with his male companion for the unprovoked attack. He maintained that the male had effectively coerced him into driving him, along with the male’s female companion, to various locations over the course of the afternoon and evening. He described the weapon used by the male in the stabbing, being a knife with a double-sided four-inch blade. He maintained that he had nothing to do with the attack, that he in no way anticipated that it would happen, and that he was effectively trapped in a situation not of his own making. He related that, after going to the first destination, the male had him drive to another location where they got into a violent confrontation with a group of individuals over some allegedly stolen property. He also described later using his vehicle to move some belongings of the male’s family from a motel to another location.
[7] Notwithstanding persistent urging by Detective Pereira, he refused to divulge the name of the male who was with him throughout the afternoon and evening of June 28, 2011 and who had carried out the stabbing, nor that of his female companion. He initially maintained that he saw no advantage to himself in divulging the name of the assailant, and later in the interview, admitted being fearful for himself and for his family should he do so. He said that he would not be a “snitch” and a “rat,” insisting that he was just trying to protect himself.
[8] Damien Nelson initially maintained, on cross-examination by the Crown, that he “did not really recall the interview” and when questioned whether he recalled being interviewed by Detective Pereira, he responded “briefly.” After being shown the video, he acknowledged that he was interviewed by Detective Perreria and that the interview was depicted in the video. However he maintained that he was not aware of why he was there or why he was being interviewed. He repeatedly professed no recollection of telling Detective Pereira various pertinent facts he was depicted in the video as having told her, nor of those things having happened. He said that he remembered very little of the events of June 28, 2011. The only thing he remembered was “being high” that day.
[9] On cross-examination by the defence, he stated that he was “high” at the time of the interview and that the video depicted that. Notwithstanding that he had earlier maintained that he did not remember anything of the events in the video, in answer to a direct question by the defence, he stated that the male person he talked about in the video “is not the man in the box” (i.e. the accused) and that he “does not know the man in the box.”
Legal Principles
[10] It is well-established that generally all relevant evidence is admissible as part of the truth-seeking function of any trial, unless the evidence is not admissible due to some established exclusionary rule. Traditionally, out-of-court statements sought to be used for the truth of their contents are presumptively inadmissible, even though they may be relevant, due to concerns about their reliability. However, on the authority of R. v B. (K.G.) 1993 CanLII 116 (SCC), [1993] SCJ No 22 (SCC), (“KGB”), a prior inconsistent statement of a witness other than the accused may be substantively admissible where it satisfies the criteria of necessity and reliability, assuming that the evidence would have been otherwise admissible at trial.
[11] The onus of establishing necessity and reliability is on the party who seeks admission of the statement, on a balance of probabilities.
[12] As laid down by the Supreme Court of Canada in R. v. Khelawon 2006 SCC 57, [2006] 2 SCR 787 at para. 50, there is an important distinction between threshold reliability and ultimate reliability. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine based on a consideration of the entirety of the evidence. In a judge-alone trial such as this, it is important that the judge not prejudge the ultimate reliability of the hearsay evidence before having heard all of the evidence. The question of threshold reliability is determined following a voir dire, generally on one of two bases, namely, whether there is no real concern about whether the statement is true because of the circumstances in which it came about, or secondly, whether there is no real concern due to the fact that, in the circumstances, the truth and accuracy of the statement can nonetheless be sufficiently tested. As noted in Khelawon at para. 49, these two bases are not watertight compartments.
[13] In a case, such as this, where the witness recants at trial from the earlier statement, necessity is readily established because the evidence is unavailable to the Crown due to the witness recanting. See in this respect R. v. U. (F.J.) 1995 CanLII 74 (SCC), [1995] 3 SCR 764 (SCC) at para. 34-35 and R. v. Medwid 2008 CarswellOnt7007 at paras. 12 and 13. The point is made in KGB at para. 110, that necessity arises because “the recanting witness holds the prior statement, and thus the relevant evidence, hostage.”
[14] As confirmed in Khelawon, reliability is a key concern where the hearsay evidence is a prior inconsistent statement because the trier of fact is required to choose between two or more statements from the same witness. CJC Lamer in KGB stated that, because of this, firm indicia and guarantees of reliability must be secured in order to bring the prior statement to a comparable standard of reliability before it is admitted as substantive evidence.
[15] Mme. Justice Charron, writing for the Supreme Court in Khelawon at para. 61, emphasized that, since the central underlying concern is the inability to test hearsay evidence, it follows that, under the principled approach, the reliability requirement is aimed at identifying those cases where that difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule.
[16] CJC Lamer in KGB identified the dangers which militate against admission of out of court statements as 1) the absence of an oath or affirmation, 2) the inability of the trier of fact to assess demeanour, and 3) the lack of contemporaneous cross-examination.
[17] The Court in Khelawon expanded the previous conception of the manner in which threshold reliability may be established by holding that, in some circumstances, the reliability requirement may be established solely by the presence of adequate substitutes for the safeguards traditionally relied upon to test trial testimony. On this point the opportunity to cross-examine the declarant is a crucial factor.
[18] Court in Khelawon also confirmed that the threshold reliability enquiry is not limited to consideration of the circumstances of the making of the statement, but may also be informed by other supporting or conflicting evidence on the record.
Application of the Legal Principles to the Agreed Statement of Facts
[19] It should be noted that there is nothing per se which renders a statement of facts, agreed to by a co-accused on a guilty plea, inadmissible due to a lack of reliability. In the case of R. v. Youvarajah [2011] ONCA 654 the Court of Appeal held that a statement of facts, agreed to by the co-accused following his guilty plea was admissible for the truth of its contents, reversing the finding by the trial judge. In the case of R. v. Serre 2012 ONSC 3210 an Agreed Statement of Facts of a co-accused, entered into evidence following a guilty plea, was held to be admissible for its truth. In the case of R. v. Tran, 2010 ONCA 471, the Court of Appeal upheld a finding at trial that facts agreed to by a co-accused following a guilty plea were admissible for their truth. However, Justice Epstein, in writing for the Court at para. 43, issued a stern caution relating to KGB applications relating to admitted facts of a co-accused on a guilty plea as follows:
In my view, obvious concerns arise in relation to the admissibility under K.G.B. of facts acknowledged as being "substantially correct" on a guilty plea. The accused person does not make any statement but merely acknowledges the truth of those facts through counsel and, as was pointed out by defence counsel, even then needs only admit to the truth of the facts that constitute the essential elements of the offence. Where the accused has made a deal with the Crown to plead guilty and later to testify against others, there are obvious reliability issues surrounding facts acknowledged to be "substantially correct" in relation to those other individuals. Accordingly, to admit facts acknowledged to be "substantially correct" on a guilty plea in a later trial against other accused persons under K.G.B. appears to me to be so fraught with danger that it should be refused in all but the most exceptional cases.
[20] It is noted that the first two of the dangers identified by CJC Lamer in KGB are present with respect to the Agreed Statement of Facts here – namely the lack of an oath and the inability to assess demeanour by means of a video-taped recording. The Court of Appeal in Youvarajah made the point, at para. 103, that the KGB recommended safeguards were never intended to create an exclusive category for the admissibility of prior inconsistent statements. As the Court indicated at para. 126, it is necessary to consider whether the circumstances of the making of the statement provide sufficient substitutes for the two missing elements in order to support a finding of threshold reliability. In Youvarajah, the Court of Appeal found that there were. In doing so, the court, at para. 143, distinguished the facts from those in Tran on the basis that the witness had signed the Agreed Statement of Facts, had been afforded an opportunity to review the document with his counsel, certain of the facts recited in the document had been provided by defence counsel and both the witness and his counsel asserted on the record that the witness “stood behind” the facts contained in the Agreed Statement of Facts. In this respect, the Court of Appeal found that the trial judge erred in law by failing to consider whether these circumstances provided adequate substitutes for customary court processes to meet the standard of threshold reliability.
[21] The Supreme Court of Canada granted leave to appeal the Court of Appeal decision in Youvarajah on June 7, 2012, so the final word on that case remains to be spoken. Regardless of that, I would distinguish the facts of the present case from those in Youvarajah. In the present case, Mr. Nelson did not sign the Agreed Statement of Facts. Nor was he asked to personally assent to the facts read into the record. There is no evidence that he reviewed the statement of facts with his counsel, and he testified that he had no memory of doing so. His counsel, who he just met that morning, when asked to acknowledge the facts, stated “the facts are correct”. Although Mr. Nelson was asked on his arraignment to personally acknowledge that he understood the charge to which he was pleading guilty, he was not asked to personally acknowledge the correctness of the statement of facts. Mr. Nelson maintained that he pleaded guilty solely because he was advised by his counsel that if he did so he would be released from custody that day. He maintained that he did not listen to the balance of the proceedings as he was focussed solely on being released. This assertion by Mr. Nelson was not successfully shaken on cross-examination.
[22] In my view, the caution issued by Justice Epstein in Tran with respect to threshold reliability of facts read in on a guilty plea by a co-accused is particularly applicable in this case. The fact that defence counsel on the guilty plea in Tran used the qualifier “substantially” in agreeing to the facts, does not render the caution less apt. The existence of a stated collateral motive for the guilty plea and the consequent agreement, through counsel, to a statement of facts, militates against a finding of adequate substitutes for customary court processes to support threshold reliability. Although there is a presumption that counsel in these circumstances has the requisite authority to agree to the Crowns’ statement of facts on the accused’s behalf, that presumption may be capable of rebuttal. Although the Agreed Statement of Facts was his statement, in the sense that it was assented to on his behalf by his properly retained counsel, it was not really a conscious and deliberate statement by him, in light of his uncontradicted evidence that he did not recall it being read, he did not listen to it being read, and, as disclosed by the transcript, he was not asked to personally endorse it.
[23] Although, on the basis of Khelowon, corroborating evidence may be considered in carrying out a threshold reliability analysis, in this case the circumstances were such as to undermine the statement’s reliability sufficiently to render such corroboration unpersuasive and potentially prejudicial. I therefore find that the Agreed Statement of Facts entered on Mr. Nelson’s guilty plea may not be substantively admitted in this proceeding for the truth of its contents.
Application of the Legal Principles to the Video-Taped Interview
[24] Different considerations apply, in my view, with respect to Mr. Nelson’s video-taped statement.
[25] It is noted at the outset that the second danger identified by CJC Lamer in KGB, being an inability to assess demeanour, is overcome by the fact that the statement was video-taped.
[26] In the case of R. v. Trieu 2005 CanLII 7884 (ON CA), 2005 195 O.A.C. 263 (Ont. CA) Justice Moldaver, at para. 76, observed that when the triers of fact have the benefit of cross-examination of the declarant, as well as a video-tape of the declarant making the statement, the two in combination go virtually “all of the way” to providing them with the tools they need to adequately address reliability.
[27] Notwithstanding this, where cross-examination is effectively illusory, by reason of the witness professing no memory of making the statement, the necessary support for a finding of threshold reliability may be absent, recognizing that the lack of contemporaneous cross-examination is the most important of the hearsay dangers. See R. v. Conway(1997) 1997 CanLII 2726 (ON CA), 36 O.R. (3d) 579 (CA).
[28] It must be remembered that the threshold reliability analysis is contextual and there is no formula which has application to every case. For instance, there are circumstances, such as in the recent case of R v. Taylor 2012 ONCA 809, where an out-of court statement may be admitted on the principled approach where there can be no cross-examination of the declarant, for instance where he or she is deceased.
[29] In my view, the Youvarajah case is an example of a move towards limiting the application of the Conway principle to cases where the witness clearly disavows any memory of having made the statement sought to be admitted into evidence, which would thereby render cross-examination on it an exercise in futility.
[30] In this case Mr. Nelson did not profess a total lack of recall of having given the video-taped statement. He did acknowledge having been interviewed by Detective Pereira “briefly” and stated that he did not “really” recall it. However, when his memory was refreshed by viewing the video, he acknowldged that he was indeed interviewed by Detective Pereira and that the interview was depicted in the video.
[31] It is noteworthy that when cross-examined by defence counsel, despite having professed a lack of recall of any of the underlying facts described in his video-taped statement, he was able to readily agree that the person who he described on the video was not the accused and that he did not know the accused. It is difficult to reconcile a professed total lack of recall of the events underlying the statement with such a firm factual declaration.
[32] In my view, the restriction of the Conway principle to cases involving a total lack of recall by the witness of having made the previous statement is in keeping with the trend in favour of increased admissibility of evidence as stated by Mme. Justice L’Heureux-Dube in R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 25 C.R. (4th) 325 at para. 23 where she stated “the recent trend in courts has been to remove barriers to the truth-seeking process. Recent Supreme Court of Canada decisions, by relaxing certain rules of evidence... have been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth.”
[33] I would observe that some of the facts described by Damien Nelson in the video were supported by other evidence led at the trial, in particular, in reference to the stabbing incident at the convenience store and its aftermath, as described by the two victims of the stabbing, and as depicted in the video-surveillance at the store. Where, as here, that type of corroboration is present, where the witness retains some memory of having made the statement, where observation of demeanour is possible through video recording of the statement, and where cross-examination of the declarant is available, threshold reliability can be made out on a balance of probabilities.
Disposition
[34] The Application of the Crown is therefore allowed with respect to the video-taped interview of Damien Nelson of July 2, 2011 and it is therefore admitted into evidence for the truth of its contents. However, the Agreed Statement of Facts read in to the record following his guilty plea is not so admitted.
D. A. Broad, J.
Released: November 27, 2012
COURT FILE NO.: NJ-12-3562
DATE: 2012-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Darryl Jamie House
RULING ON CROWN APPLICATION FOR ADMISSION OF WITNESS STATEMENTS FOR THE TRUTH OF THEIR CONTENTS
D. A. BROAD J.
Released: November 27, 2012