COURT FILE AND PARTIES

COURT FILE NO.: CR-11-897-00
DATE: 20121213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Deodat Gajraj

BEFORE: Ricchetti, J.

COUNSEL: C. Valarezo, Counsel for the Crown
S. Wilson , Counsel for the Defence

HEARD: December 10 and 11, 2012

ENDORSEMENT ON CROWN Application
(prior evidence of Mr. Thaher)

[ 1 ] At the conclusion of the Crown's application, I granted the application orally with written reasons to follow. These are those written reasons for granting the Crown's application.

The Charges

[ 2 ] Mr. Gajraj is charged that, on September 4, 2009, he committed an assault with a knife on Mohammad Thaher. The three charges ( s. 268 , 267 (a) and 88 of the Criminal Code ) all relate to the same incident with the knife. By the commencement of the Trial, the Indictment was amended to only include two of the offences.

[ 3 ] Essentially, the Crown's theory is that Mr. Thaher and Mr. Gajraj got into a verbal argument, agreed to meet at a school yard late at night, pushing and shoving ensued which turned to physical blows, then, Mr. Gajraj pulled out a knife from his back pocket and stabbed Mr. Thaher in the abdomen and the hand.

[ 4 ] A preliminary hearing was held on February 1, 2011.

[ 5 ] Mr. Thaher testified at the preliminary hearing and was cross-examined on the events of the evening and, in particular, the details regarding the persons present, the fight and the knife allegedly used by Mr. Gajraj.

The Application

[ 6 ] The Crown brings an application seeking to admit the audio tape of Mr. Thaher's evidence at the preliminary without calling Mr. Thaher at the trial.

[ 7 ] The Crown relies on:

i. S. 715(1) (c) of the Criminal Code ; and

ii. The principled exception to hearsay ( R. v. Hawkins, 1996 154 (SCC) , [1996] 3 S.C.R. 1043).

The evidence on the Voir Dire

[ 8 ] The Crown called three witnesses:

i. Dr. Ahmad Mansour (Mr. Thaher's psychiatrist);

ii. Mr. Maher Thaher (Mr. Thaher's father); and

iii. Mr. Brett Shivbaran (a friend of Mr. Thaher and a witness to the incident).

[ 9 ] Counsel also agreed that the transcript of Mr. Thaher's evidence at the Preliminary Inquiry would form part of the voir dire .

The Evidence of Dr. Mansour

[ 10 ] Dr. Mansour is a psychiatrist. He graduated as a doctor in Libya in 1990. He practiced as a psychiatrist until 2000 when he immigrated to Canada. After completing his evaluation examinations, he undertook his psychiatry residency at the University of Toronto from 2001 to 2006. Dr. Mansour received his Fellowship in December 2007 and Board Certification in April 2008. After a year at the Centre for Addiction and Mental Health (CAMH), Dr. Mansour became a psychiatrist at the William Osler Health Centre providing psychiatrist services to the in patients and out patients.

[ 11 ] Counsel agreed that Dr. Mansour was qualified to give opinion evidence regarding psychiatric issues.

[ 12 ] Mr. Thaher became a patient of Dr. Mansour in December 2010. Mr. Thaher's symptoms at the time were depression and anxiety and were diagnosed as such by Dr. Mansour. The next medical appointment was on February 9, 2011, some 8 days after the preliminary inquiry.

[ 13 ] During the next few medical appointments, Mr. Thaher attended the medical appointments by himself; he was well dressed, and appeared to be taking care of himself.

[ 14 ] Dr. Mansour described 2010 and 2011 as Mr. Thaher's prodormal phase of schizophrenia. Prodormal means early visible symptoms which progressively get worse until the typical symptoms of schizophrenia are observed. Normally, the prodormal phase lasts approximately 6 months. However, in Mr. Thaher's case it lasted considerably longer. The depression and anxiety that Dr. Mansour had seen in 2010 and 2011 was part of the prodormal phase for Mr. Thaher.

[ 15 ] As Dr. Mansour got to know Mr. Thaher during the subsequent medical appointments in 2011, he found that Mr. Thaher was paranoid. Mr. Thaher was diagnosed with Post Traumatic Stress Disorder and Depression. Exactly, when in 2011 this occurred is not clear on the evidence. Dr. Mansour testified that “In 2011 he was mainly presenting with anxiety and depression and this paranoia and near the end he started to disclose about the voices.”

[ 16 ] However, the first time that Mr. Thaher discussed with Dr. Mansour hearing voices was in July 2011. Dr. Mansour prescribed anti-psychotic medication because Mr. Thaher was losing touch with reality, hearing voices and having false beliefs. By the end of 2011 Dr. Mansour had diagnosed Mr. Thaher as being bi-polar. However, Mr. Thaher continued to deteriorate rapidly.

[ 17 ] Mr. Thaher's parents became involved in the end of 2011. Dr. Mansour said that if Mr. Thaher had been as unfit as he was in late 2011 or 2012, he was certain Mr. Thaher's parents would have become involved earlier.

[ 18 ] In 2012 Mr. Thaher's condition worsened. In April, 2012 Mr. Thaher was quite psychotic, disorganized, hearing voices, mumbling, exhibiting inappropriate laughing, and was not able to put this thoughts together - he was quite confused.

[ 19 ] Dr. Mansour diagnosed Mr. Thaher as a schizophrenic at the time. Mr. Thaher was detained against his will for a psychiatric assessment. The diagnosis was confirmed by another doctor. Mr. Thaher's parents had him released against medical advice.

[ 20 ] Dr. Mansour last saw Mr. Thaher on September 5, 2012. At that time, Mr. Thaher was still psychotic, delusional, confused, and mumbling to himself. As Dr. Mansour put it, Mr. Thaher's psychosis had flared up.

[ 21 ] One of the difficulties was that Mr. Thaher was not medication compliant which means that he does not take his medication as proscribed to manage his condition..

[ 22 ] Dr. Mansour referred Mr. Thaher to FACT Peel, an organization which would assist with the medical compliance and social aspects of the condition.

[ 23 ] Mr. Thaher refused to see Dr. Mansour for his medical appointment in October 2012. Mr. Mansour's delusions now included Dr. Mansour.

[ 24 ] Dr. Mansour opined that, coming to court at this time, was not in Mr. Thaher's best interests because:

a) He suffers schizophrenia;

b) He suffers from paranoia;

c) He "can’t think right";

d) He has disorganized thinking;

e) There would be a psychological impact on Mr. Thaher coming to court. Asking him questions about his past could easily cause his delusions and he would misinterpret everything and feel fear and paranoia in the court.

[ 25 ] When asked about Mr. Thaher's ability to communicate, Dr. Mansour responded that Mr. Thaher would "feel like a wall to communicate with" and he would not able to maintain a conversation. Mr. Thaher would say a few things that are irrelevant, he will start talking to himself, mumbling, smiling and laughing inappropriately. Schizophrenics are unreliable historians but that doesn’t mean they won’t tell you some of the truth. The problem lies in the processing of information. For example, schizophrenics have an inability to understand, code, analyze and respond which cause a derailment of their thinking and making it quite disorganized.

[ 26 ] One other concern raised by Dr. Mansour is Mr. Thaher's apparent reluctance to be near police - something Dr. Mansour was told by Mr. Thaher's parents.

[ 27 ] Dr. Mansour overall concern was the inability to rely on Mr. Thaher's evidence because, if he testified, the court could very well become part of his delusion.

[ 28 ] While the medication compliance would stabilize Mr. Thaher, there is still a chronic deterioration which occurs with schizophrenics but it reduces the rate of chronic deterioration.

Mr. Maher Thaher

[ 29 ] Mr. Thaher's father testified that his son has not yet gone to FACT Peel. His son does not appear to have seen any other psychiatrist since September 2012.

[ 30 ] Mr. Thaher's father testified that when his son first started seeing Mr. Mansour, his son had "some instability". This increased about a year ago and now his son is not concentrating or focussing very much.

[ 31 ] His son attended Seneca College and Sheridan College until March 2012 when the school asked that he be withdrawn. Although, admittedly his son was not doing "very much" in school. His son was going to school in February 2011.

[ 32 ] Mr. Thaher's father confirmed that his son has not returned to the way he knew him a long time ago; his "mind is not right"; "he is not normal"; and sometimes his son will respond to questions and at other times he will not.

[ 33 ] Mr. Thaher's father believes his son's condition will get worse if he testifies.

Brett Shivbaran

[ 34 ] Mr. Shivbaran was one of Mr. Thaher's friends on the evening in question. His description of the events of the evening is very similar to the events described by Mr. Thaher at the preliminary inquiry.

[ 35 ] There were some minor inconsistencies but, in my view, not out of the ordinary as one would expect of witnesses recounting what occurred some time ago in a fight at night where someone was knifed.

The Transcript of the Preliminary Inquiry

[ 36 ] Having reviewed the transcript of the evidence given at the preliminary inquiry, I conclude the following:

i. Mr. Thaher testified under oath;

ii. The events at issue in this case were thoroughly canvassed in the examination-in-chief as well as the cross-examination;

iii. There were no issues raised by either counsel regarding Mr. Thaher's non-responsiveness at the preliminary inquiry. Quite frankly, there is no evidence of any non-responsiveness by Mr. Thaher at the preliminary inquiry in the manner suggested by Dr. Mansour or otherwise;

iv. Mr. Thaher's answers to the questions were responsive and detailed;

v. Mr. Thaher appeared to fully understand the questions and provided answers which appeared to demonstrate his ability to understand the question, process the information requested and properly respond with complex answers on occasions;

vi. Mr. Thaher was going to school during the preliminary inquiry and for more than a year after that; and

vii. Mr. Thaher exhibited none of the symptoms described by Dr. Mansour as to non-responsive, disorganized thinking, inappropriate laughing, mumbling. None of that was exhibited during the preliminary inquiry.

The Law

[ 37 ] S. 715(1) (c) of the Criminal Code provides as follows:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

( c ) is so ill that he is unable to … testify,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[ 38 ] The principled exception to the hearsay rule is set in Watt's Manual of Criminal Evidence (2012) at para. 28.01:

Under the principled approach, it is for the trial judge to determine whether the requirements of necessity and reliability have been satisfied. Discrete findings are required for each principle.

Necessity implies that the reception of evidence untested by cross-examination is necessary, since otherwise the benefit of the evidence to the determination of the litigation will be lost entirely. Imperfection is better than nothing.

The reliability requirement is aimed at identifying those cases where concerns arising from the inability to test the evidence are sufficiently overcome to justify reception of the evidence as an exception to the general exclusionary rule. In general, the reliability requirement may be met where the proponent shows that there is

i. no concern about the truth of the statement because of the circumstances in which the statement was made; or

ii. no real concern arising from presentation of the statement as hearsay because the circumstances permit testing of its truth and accuracy be means other than contemporaneous cross-examination.

These methods of satisfying the reliability requirement are not mutually exclusive categories and assist in identifying the factors that require consideration on the admissibility inquiry.

[ 39 ] The onus is on the party seeking to tender the evidence to establish the necessity and reliability of the proposed evidence on the balance of probabilities. R. v. Duong (2007), 2007 ONCA 68 () , 45 C.R. (6th) 145, 217 C.C.C. (3d) 143 (Ont. C.A.)

[ 40 ] With respect to necessity, necessity means "reasonably necessary". R. v. Khan , 1990 77 (SCC) , [1990] 2 S.C.R. 531, 79 C.R. (3d) 1, 59 C.C.C. (3d) 92.

[ 41 ] In R. v. Hawkins , supra, the Supreme Court stated at paras 75 and 76:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

We are persuaded that a witness's testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are 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.

S.715(1)(c) of the Criminal Code

[ 42 ] The Defence submits that the Crown's application under this section fails because the Crown has not established that Mr. Thaher is too ill to testify.

[ 43 ] In the alternative, Defence submits I should exercise my residual discretion to exclude this evidence by denying the application. R. v. Potvin 1989 130 (SCC) , [1989] 1 S.C.R. 525

[ 44 ] This subsection only requires that the witness be "unable to testify." This analysis is essentially the same as the "necessity" branch of the principled exception hearsay - the "reliability" branch is satisfied for the reasons described in Hawkins , supra provided the pre-conditions in s. 715(1) of the Code are satisfied.

[ 45 ] I am satisfied that Mr. Thaher is unable to testify. Dr. Mansour saw Mr. Thaher in September 2012 and reported on his medical condition which was clear that Mr. Thaher would be unable to testify. Mr. Thaher's father testified that his condition has not changed since September 2012 and Mr. Thaher remains in the same condition. Mr. Thaher is not presently on medication.

[ 46 ] As for the Defence submission that Mr. Thaher might be able to testify if he were to take his medication and might do so after entering the FACT Peel program. That may or may not occur. It is too speculative as to whether Mr. Thaher will ever be medication compliant and too speculative to rely on what Mr. Thaher's condition might be after he takes his medication on a regular basis for a number of months. Further, as described by Dr. Mansour, medication may stabilize the condition and may slow it down from getting worse but, Dr. Mansour did not say that Mr. Thaher would return to this pre-schizophrenia condition.

[ 47 ] Mr. Thaher suffers from schizophrenia, where inability to communicate, delusions, hallucinations, disorganized thinking and "historical reliability" to recall events are central to his present medical condition.

[ 48 ] In R. v. Pearson (1994), 36 C.R. (4th) 434 (B.C.C.A.) the court found that necessity may arise from a mental disability which prevented the witnesses' credibility from being assessed by applying the traditional tests of credibility such as demeanour, consistency, perception, and accuracy of recollection of other events.

[ 49 ] I have considered whether I should adopt the process suggested in R. v. Parrott , 2001 SCC 3 () , [2001] 1 S.C.R. 178 where the Supreme Court suggested that, if a witness whose mental capacity is challenged is physically available for trial, and there is no suggestion that witness would suffer trauma by trying to give evidence, the witness's evidence should not generally be pre-empted by hearsay unless the trial judge has first had a chance to hear the potential witness and form an opinion about testimonial competence. The facts in Parrott , supra were summarized by Justice Binnie at para 29:

In this case, the complainant in a kidnapping and sexual assault case was a mature woman who had suffered since birth from Down’s syndrome. She was considered mildly to moderately retarded and had been in institutional care for almost 20 years. Expert evidence was called to establish that her mental development was equivalent to that of a three- or four-year-old child and that her memory of events was poor. Her response to even the simplest questions was said to be not very coherent. The complainant herself was never called into the presence of the trial judge so that these attributes could be verified even though she was available and there was no suggestion that she would suffer any trauma or other adverse effect by appearing in court. Instead the court received evidence of out-of-court statements that she had earlier made to the police and to a doctor.

[ 50 ] Critical to the Supreme Court's decision in Parrott , supra was that there was evidence the witness could provide some testimony (see paras. 34-38 Parrott) and there was no evidence that the witness would suffer any trauma if called to testify (para. 39 Parrott ).

[ 51 ] In the present case, both of these issues were covered by the evidence.

a) Even if some coherent answers could be obtained from Mr. Thaher, his evidence would suffer from historical unreliability, delusions, hallucinations and so on; and

b) Mr. Thaher would suffer from being required to testify because of his delusions. This was clear from both Dr. Mansour and Mr. Thaher's father. In R. v. Dubois (1997), 1997 9935 (QC CA) , 118 C.C.C. (3d) 544 (Que. C.A.); leave to appeal refused (1998 S.C.C.) the court found the evidence of a psychologist that the stress provoked by testifying could aggravate the witness' trauma established the necessity requirement.

[ 52 ] I am satisfied there would be no purpose served by requiring Mr. Thaher to attend court and put him through this increased and unnecessary psychological harm.

[ 53 ] The playing of the audiotape of Mr. Thaher's entire evidence at the preliminary inquiry will be permitted under s. 715 of the Criminal Code . I see no reason to exercise my discretion to exclude this evidence in the circumstances of this case.

Principled Exception to Hearsay

[ 54 ] Section 715 of the Criminal Code does not exclude admissibility of the proposed evidence under the principled exception to hearsay. (see paras. 56 and 57 Hawkins, supra )

i) Necessity

[ 55 ] I will not repeat what is stated above with respect to necessity. The above analysis is applicable to the necessity branch of the test. However, I should add that necessity means "generally unavailable" or "reasonably necessary" for the prior statement or evidence to be needed for trial purposes. In Hawkins , supra the Supreme Court stated at para. 72:

For the purposes of these appeals, it will suffice to hold that the preliminary inquiry testimony of a witness will satisfy the criterion of necessity where the witness is generally unavailable to testify at trial. (emphasis added)

[ 56 ] This is consistent with what was stated in R. v. Khan , [1990] 2. S.C.R. 531 where the Court stated necessity meant "reasonably necessary".

[ 57 ] Bearing in mind the evidence on this voir dire , and for the reasons set out above, I am satisfied that the Crown has satisfied the onus on it that Mr. Thaher is generally unavailable for the trial and, therefore, the evidence of Mr. Thaher's at the preliminary inquiry is reasonably necessary.

ii) Reliability

[ 58 ] The Crown need only establish threshold reliability and not the ultimate reliability which is for the trier of fact. The Supreme Court in Hawkins supra described the reliability branch of the test as follows at para. 75:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

[ 59 ] Justice Watt in Watt's Criminal Evidence , 2012 at para. 28.03 describes reliability as follows:

Reliability is the equivalent of what Wigmore described as a circumstantial guarantee or probability of trustworthiness. The probability of accuracy and trustworthiness of a statement is practically sufficient, if not quite the equivalent of testing the statement in the usual manner. A variety of circumstances may serve as a practical substitute for, or the functional equivalent of, cross-examination.

[ 60 ] In this case, there are a number of factors which strongly support the reliability of the proposed evidence:

a) It was given under oath;

b) It involved the same parties and the same issues now before this court;

c) The details of the incident in question was fully covered in the examination in chief and in cross examination (by the same defence counsel as well);

d) There is corroboration of the essential aspects of the incident from another witness;

e) The questions and answers of Mr. Thaher were clear and articulate and do not have any appearance of being tainted by the consequences of his present medical condition.

[ 61 ] The Defence suggests there are some inconsistencies with Mr. Shivbaran's evidence. If there are differences, I am persuaded that they are not of such sufficient importance as to bring into question the threshold reliability of Mr. Thaher's evidence at the preliminary. In any event, once the threshold reliability is met (as it is in this case) it is for the jury to determine if there are inconsistencies and what impact, if any, they might have on their assessment of the evidence.

[ 62 ] I am satisfied that the Crown has established Mr. Thaher's evidence from the preliminary meets the threshold reliability for it to be admissible.

Conclusion

[ 63 ] As a result, if necessary, I would have granted the Crown's application to admit the evidence of Mr. Thaher from the preliminary inquiry on the basis it is a principled exception to hearsay.

CONCLUSION

[ 64 ] Mr. Thaher's evidence at the preliminary inquiry is admissible at this trial.

Ricchetti J.

Date: December 13, 2012

COURT FILE NO.: CR-11-897-00

DATE: 20121213

SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Deodat Gajraj BEFORE: Ricchetti J. COUNSEL: C. Valerzo, for the Crown S. Wilson, for the Defence* ENDORSEMENT Ricchetti J.

DATE: December 13, 2012