SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 30000620/12

DATE: 20130426

RE: R. v. Keron Manuel

BEFORE: Newbould J.

COUNSEL:
J. Hanna, for the Crown

N. Dwyer, for the Accused

Mid-trial ruling

[1] The Crown applies to have several statements made by four witnesses admitted as proof of the truth of the statements as a principled exception to the hearsay rule. The statements consist of prior inconsistent statements made by the witnesses who were called by the Crown, on which they were cross-examined by leave under section 9 of the Canada Evidence Act. The statements consist of a written statement given by each to a police officer on the night of the incident in question, a transcript of the preliminary inquiry evidence given by one witness, and statements given by two witnesses at the police station that were audio recorded and in one case also videotaped. By agreement, as there is no jury in this case, the voir dire evidence was blended with the trial evidence, so that if the statements are ruled admissible for their truth, the evidence given remains as the trial evidence.

[2] The Crown also seeks to have certain evidence admitted to prove its truth under the res gestae rule.

[3] The accused Keron Manuel is charged with pointing a firearm without lawful excuse at Wolo-Noemie Kalala-Sombo (“Ms. Sombo”), Kilwango Mafuta (“Ms. Mafuta”) and Crystal Hibbert (“Ms. Hibbert”), using a firearm or imitation firearm while committing the indictable offence of threatening bodily harm, possessing a firearm without a licence to possess it and knowingly uttering a threat to cause serious body harm to the said three women.

[4] The charges arose from an incident in the evening towards the end of a birthday party for the 4 year old child of Ms. Sombo held on July 9, 2011 in a party room on the ground floor of an apartment building at 675 Kennedy Rd. in Scarborough. The Crown alleges that the accused Mr. Manuel came into the party upset that people from outside the neighbourhood had been invited to the birthday party and that after an argument he pulled a gun out of his pocket and threatened to shoot it. He left when someone said that the police would be called.

[5] Within a short period of time the police arrived and took statements from each of Ms. Sombo, Ms. Mafuta, Ms. Hibbert and another woman named Tysian Francis (“Ms. Francis”). The police also audio recorded and videotaped statements made during a photo line-up by Ms. Mafuta, audio recorded another statement of hers while identifying other photos and audio recorded statements during a photo-line-up by Ms. Francis. Ms. Francis also testified at the preliminary hearing. All of the statements of these four women implicated Mr. Manuel by identifying him as the person who pulled a gun out of his pocket and threatened to shoot it.

[6] The Crown called each of these four women at the trial. They each testified that they did not see Mr. Manuel with a gun. Leave was given to cross-examine each of them under section 9 (2) of the Canada Evidence Act and for Ms. Mafuta under section 9 (1) as well. All of them testified during their cross-examination by the Crown that they did not see Mr. Manuel with a gun and that after Mr. Manuel left, they heard other women saying that Mr. Manuel had pulled out a gun. They testified that what they had told the police that they saw was what they had heard from the other women at the party. They all testified that they could not identify any particular woman who had said that she had seen Mr. Manuel with a gun.

Applicable principles

[7] Out of court statements of a witness, unless adopted by the witness at the trial, are hearsay statements. See R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283 at para. 18 per Charron J. They are presumptively inadmissible. See R. v. Khelowan, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 59 per Charron J.

[8] If such statements are not admissible under the established exceptions to the hearsay rule, they must meet the test of necessity and reliability in order to be admitted as a principled exception to the hearsay rule. See Devine at para. 15. It is conceded that the necessity criterion is made out as the prior statements have been recanted. The concession is warranted in light of the comments in the Supreme Court that where a witness recants an earlier statement, necessity is based on the unavailability of the testimony. See Devine at para 16.

[9] The issue therefore is whether the statements sought to be introduced for the truth of the contents can be said to be reliable. At this stage, the trial judge need only be convinced on a balance of probabilities that a statement is likely to be reliable, as this is the normal burden of proof resting upon a party seeking to admit evidence. See R. v. F.J.U., 1995 74 (SCC), [1995] 3 S.C.R. 764 at para. 48 per Lamer C.J. Moreover, the trial judge only decides whether hearsay evidence is admissible. 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 at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. If the judge sits without a jury, it is important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between "ultimate reliability" and "threshold reliability". Only the latter is inquired into on the admissibility voir dire. See Khelawon at para. 50.

[10] As well, while previous cases such as R. v. B (K.G.) and R. v. U(F.J.) have identified grounds to be used in testing whether a particular statement could be said to be sufficiently reliable to be admitted for the truth of its contents, they are not to be interpreted as creating categorical exceptions to the rule against hearsay based on fixed criteria or creating an inflexible list of preconditions to admissibility. In Khelowan, Charron J. stated at para 45:

45. As I will discuss later, both B. (K.G.) and U. (F.J.) highlight the particular concerns raised in cases of prior inconsistent statements. However, following Lamer C.J.’s own words of caution against “rigid pigeon-holing analysis”, it is my view that neither B. (K.G.) nor U. (F.J.) should be interpreted as creating categorical exceptions to the rule against hearsay based on fixed criteria. The majority judgment in B. (K.G.) itself leaves room for appropriate substitutes for the criteria it sets out. Further, to interpret these cases as creating new categories of exceptions would not be in keeping with the flexible case-by-case principled approach. We would simply be replacing the traditional set of exceptions with a new and (for the time being) less ossified one. Rather, these cases provide guidance — not fixed categories — on the application of the principled case-by-case approach by identifying the relevant concerns and the factors to be considered in determining admissibility.

[11] The central concern underlying the rule against hearsay is the inability to test the evidence. The reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence. In Devine, Charron J. summarized her earlier decision in Khelawon in which she identified two ways to establish reliability by stating at para. 22:

The reliability requirement is usually met in one of two ways, which are not mutually exclusive. “One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. . . . Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested” (Khelawon, at paras. 62-63).

[12] She also stated in Devine that the focus will be on the latter basis for establishing reliability when the declarant is available at trial to be cross-examined:

23. Although the two bases are not mutually exclusive, in cases where the declarant is available to be cross‑examined, the focus will necessarily be on the latter. As this Court explained in Khelawon (at para. 76):

The most important contextual factor in B. (K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross‑examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross‑examination.

24. Indeed, in any case, as this Court stated in Couture, there is an advantage to first considering whether there are adequate substitutes for testing the evidence (at para. 87):

Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes for testing the evidence. The presence or absence of adequate substitutes is usually more easily ascertainable. Further, whenever 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.

[13] As stated by Charron J., if there is a sufficient basis for assessing 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. See Khelawon at para. 92 per Charron J.

[14] The ability to cross-examine the declarant at the trial on the earlier statement substantially alleviates the difficulty in assessing the earlier out of court statement, particularly where an accurate record of the statement can be tendered in evidence. See Devine at para. 19.

[15] However, where reliability is dependent on the inherent trustworthiness of the statement, the trial judge must enquire into those factors tending to show that the statement is true or not. See Khelawon at para. 92.

Analysis

[16] Mr. Dwyer concedes that the Crown is entitled to have admitted as evidence of the truth of its contents the transcript of the evidence of Ms. Francis given at the preliminary inquiry, so long as the entire transcript is admitted.

[17] With respect to the remaining statements, I will first focus on the second method to determine reliability enunciated by Charron J. in Khelawon at para. 63, namely whether in the circumstances of this case the trier of fact will be in a position to rationally evaluate the evidence.

[18] The position of the Crown is that the circumstances are such that there is a sufficient degree of reliability of the statements to permit the trier of fact to rationally evaluate the evidence. Mr. Manuel argues otherwise, and asserts that the police ought to have had the four witnesses give their statements under oath while being videotaped at the local police station.

[19] While it may have been preferable to have had the statements taken that way, one must remember that these witnesses had their young children with them and that it was after 10 p.m. when the police arrived to take statements. P.C. Seaban was the one officer who considered having Ms. Francis give her statement under oath at the station, but testified that Ms. Francis was with her children and wanted to give her statement when she did. Be that as it may, Mr. Dwyer could point to no authority that suggests that failing to have a statement taken under oath while being videotaped is itself a ground to refuse an order admitting the statements under the principled exception to the hearsay rule. Indeed, the analysis is to determine if there are adequate substitutes for that procedure.

[20] The lack of an oath being given to the four witnesses is considerably alleviated by the fact that all four said they were trying to be truthful when they gave their statements. Ms. Hibbert and Ms. Mafuta went further and explicitly acknowledged that they understood the need to be truthful and the consequences of not being truthful. Ms. Sombo said that she “kind of” was trying to be truthful but acknowledged having said at the preliminary hearing that she was certainly trying to be truthful when the police came. She did assert that she did not believe there would be consequences of lying to a police officer. Of course, if she did not understand the consequences of lying to a police officer, that would affect the reliability of her statement. That is a question of fact.

[21] I note that all four witnesses now say that what they told the police offers they saw was not true as they did not see it. Two expressly asserted in evidence that they lied to the police when they gave their statements. At this stage, I am reluctant to make any ultimate finding of fact on this issue, but it would be open to the ultimate trier to conclude that all four witnesses lied while testifying at the trial in spite of the fact that they took an oath or affirmed to tell the truth. In the circumstances of this case, I am of the view that the fact that they were not under an oath when they gave their statements made little if any difference to what they told the police officers.

[22] All four witnesses were cross-examined at the trial on their statements taken by the police officers, which goes a long way to alleviate the difficulty in assessing the earlier out of court statement. This is particularly so when as here, all four acknowledged that the officers’ notes accurately recorded what they each told the officer to whom they spoke. The interviews during the photo line-ups conducted with Ms. Francis and Ms. Mafuta were audio recorded and transcribed and in the case of Ms. Mafuta also videotaped.

[23] Each of the four witnesses was interviewed separately by a different police officer and was alone during the interview when their statement was taken outside of the apartment building. There is no evidence that they discussed in advance what they were going to tell the police or that when they gave their statement they were aware of what the others were telling the police. The time from the incident until they gave their statements was short and each testified that they were looking after their children who were frightened and screaming. Thus they likely had little ability to collude on their statements.

[24] Ms. Francis testified that when she gave her statement to P.C. Seaban, the events were fresh in her memory and that she was not trying to mislead the officer. She acknowledged that she was not threatened by the officer to give a statement and offered no advantage. She initialed each page of the notes and signed them at the end to indicate the accuracy of what she told the officer. She said that she had been drinking but was sober. P.C. Seaban testified that the statement was taken in the driveway outside of the building and the two were alone. He did not caution her to tell the truth but based on her demeanor he expected her to tell the truth. He said her demeanour was calm and that he did not smell any liquor or illegal drugs and that she did not appear to be intoxicated.

[25] The notes signed by Ms. Francis, which she acknowledged accurately recorded what she told the officer, state that “the next thing I know he pulled out his gun and started to wave it all around. Then after that there was such a commotion and I don’t remember much. We called the police and then they all started to leave.” She described the gun as “black and silver. It was like a police gun. It didn’t have a spinning thing.” She said that after he pulled out the gun “He said something about shooting”. At the photo line-up she picked out a photo of Mr. Manuel and said he looked familiar “cuz the guy who had a gun, he had on a hoodie, so I didn’t see his hair or.” and said that he was “maybe” the guy with the hoodie.

[26] An audio tape of an interview is helpful in considering whether the statement given was coerced, as is a video recording. See R. v. Warsame [2012] ONSC 3927 at para. 35 per Ducharme J. However, in this case when Ms. Francis was interviewed during a photo line-up, she did not want to appear on the video and thus only the officer conducting the photo line-up was seen on the video. In this case, the lack of an audio or video recording of the statement given to the police is of less importance as Ms. Francis, like the other three witnesses, acknowledged that she was not coerced in any way to give her statement and that the notebook statement accurately recorded what she told the officer.

[27] Ms. Hibbert testified that when she gave her statement to P.C. Soffe she intended to be truthful and knew it was important to be truthful. She testified that the events were fresh in her mind and she was not trying to mislead the officer. She acknowledged that she was not threatened by the officer to give a statement or promised anything. She initialled each page and signed her statement at the end to indicate its accuracy. On cross-examination by Mr. Dwyer, she said she did not understand the significance between what she saw and what others had told her. The evidence of P.C. Soffe, admitted by statement, was that Ms. Hibbert sought him out to give a statement and was adamant about giving her statement. She was excited, upset and angry about the incident. He said that he always tells witnesses that they must tell the truth and he recalls telling her that. While his notes do not record such a warning, his evidence is consistent with that of Ms. Hibbert who said she intended to be truthful and knew that was important.

[28] Ms. Hibbert seemed very reluctant to review the notes of her statement given to P.C. Soffe, and before leave was given to cross-examine on them, said that reviewing them would not assist her. The notes signed by Ms. Hibbert, which she acknowledged accurately recorded what she told the officer, state that “I heard the guy say “We run this area. No flemo guys here”. I said we’re having a kids party and anybody can come who we invite. I told them they’re leaving anyway. Then he pulled out a gun from the front of his pants and he aimed it towards us and said, “I’ll shoot up this place like how I just shoot up those guys.” She described the gun as “Hand gun, grey, with black parts on it, looked heavy, looked like a big calibre gun”. To the question if he pointed the gun at her, her response was “Towards the group of people I was standing with. He held it in his right hand and to the side, not straight up.” To the question if there was anything else, her response was “No. When he pulled out the gun he also spit at us in our direction.”

[29] Ms. Mafuta testified that when she gave her statement to the police officer, she understood it was important to tell the truth and understood the consequences if she did not tell the truth. She testified that she did tell the truth and that the notes, which she initialled on each page and signed at the end, accurately recorded what she told the police officer. She acknowledged that no one put pressure on her to give a statement and no threats or promises were made by the police officer. On cross-examination by Mr. Dwyer, she said that the women were emotional and that part of it was that she was angry at Mr. Manuel. Of course, if Mr. Manuel had done what Ms. Mafuta told the police he had done, one could understand the emotion and anger. She said that people called her a snitch for talking to the police. P.C. Konecny testified that he told Ms. Mafuta that she should be truthful and that if she lied to the police she could be charged. While his notes do not record such a warning, his evidence is consistent with that of Ms. Mafuta who said she understood the need to be truthful and the consequences if she did not. P.C. Konecny testified that she when he first spoke to Ms. Mafuta she was in shock but was calm when she gave her statement. He made no threat or offer to her.

[30] Ms. Mafuta also seemed very reluctant to review the notes of her statement given to P.C. Konecny, and before leave was given to cross-examine on them, said that reviewing them would not assist her. The notes signed by Ms. Mafuta, which she acknowledged accurately recorded what she told the officer, state that in answer to a question as to what happened after the guys who live in the area asked about the other guys, Ms. Mafuta stated “I replied “they came to a birthday party”. The guy replied “this is our hood, we live here”. I replied, this is a childs party, they were invited to the party. He entered the room and said “I’m going to shoot up the place” and then he left and ran out the back door.” When asked if he showed her that he had a firearm, she stated “Yeah, he showed it, I saw it. Ok he pulled it out of his waist, pointed it in the air saying Im going to shoot up this place”. At the end of the statement she added that she “recalls that the male had a black and grey small handgun”.

[31] Ms. Mafuta was interviewed two days later on July 11, 2011 in the police station when she participated in a photo line-up. It was audio and video taped, and transcribed. It was also videotaped but at her request the camera was not pointed at her as she did not want to be on camera. Ms. Mafuta identified a photograph of Mr. Manuel and said “He’s the one that show us the gun”.

[32] On August 4, 2011, she was again interviewed at the police station and it was audiotaped and transcribed. At the outset she was told by Det. Cecile that it was important to tell the truth and that there were consequences for misleading or lying to the police. She identified several images taken from an indoor camera of the hallways in the apartment building. She identified one male who kept telling her that she was a snitch. She identified an image of Mr. Manuel and said that she was between him and her cousin Ms. Sombo and that while she was in front of him “he took it from his waist”. She said “to tell you the truth it happened so fast all I seen was a gun, I see was gray and that’s all I seen. I never seen what kind of gun it was.” She said “he was just holding it--up-- in the air”. She said that everyone was saying she was a snitch. Det. Cecile testified that Ms. Mafuta was agitated when describing being called a snitch but that other than that she was calm throughout.

[33] The birthday party was for Ms. Sombo’s 4 year old daughter. She did not live in the building but the room was booked by her cousin Ms. Mafuta who did live there. Ms. Sombo testified that she invited 4 or 5 males who lived in Flemington Park who were friends of the father of her child. Mr. Manuel and others came by at the end of the party and he was staring at her and the two got into an argument and she spit in his face. He spit back. Mr. Manuel was upset that she invited people from outside the area. She said when she went to her child, she heard Mr. Manuel say he was going to shoot up the place, but like the other witnesses, denied seeing Mr. Manuel with a gun.

[34] Ms. Sombo acknowledged that when she gave her statement to the police officer she was not threatened in any way or offered anything. She said she was sober. She said at the trial that she “kind of” was trying to be truthful. At the preliminary inquiry, she said she was certainly trying to tell the police the truth, and she acknowledged on cross-examination that she had said that. At trial, she asserted that she did not believe there would be consequences of lying to a police officer. On cross-examination by Mr. Dwyer, she said she was angry at Mr. Manuel and thinking of getting him arrested. P.C. Thomson testified that he made no offer or threat to Ms. Sombo when he took her statement. He said she was afraid and scared and upset at what had happened to her.

[35] Like Ms. Hibbert and Ms. Mafuta, Ms. Sombo seemed very reluctant to review the notes of her statement given to P.C. Thomson, and before leave was given to cross-examine on them, said that reviewing them would not assist her. The notes signed by Ms. Sombo, which she acknowledged accurately recorded what she told the officer, state that when she and Mr. Manuel were arguing, “then his friends were pulling him back cause I think he wanted to hit me. Then I spat at him –then he came and spat right back at me- then he pulled out the gun he was saying “you guys don’t know me I’ll shoot up this place-then I kinda blanked and all I remember he was waving it around at me and all the mothers that were in there”. She described the gun as “it was silver-kinda looked like your guns but smaller”. When asked what hand he was waving it with she said “I think it was his right hand” and she said ‘it was in his wasitband at the front”.

[36] During her evidence, Ms. Sombo testified that she told a police constable in the court house the day before she gave her evidence that she was scared to testify. She said in the eyes of the neighbourhood guys she was a snitch and that they did not like snitches. She said when she was talking to the police officer when she gave her statement, some guys passing by said she was a snitch. When asked what the fear was in coming to court to testify, her response was that she did not know their thinking or what they might do. She said she was not afraid for herself but for her daughter. She said that she was now telling the truth, i.e. she said that her testimony in court, in which she said she did not see Mr. Manuel with a gun, was truthful.

Conclusion

[37] Taking into account the factors as discussed surrounding the giving of the statements sought to be introduced by the Crown to prove their truth, I am satisfied that the truth and accuracy of the statements can be sufficiently tested by the trier of fact, in this case me, in spite of the fact that they were not given under oath at trial or under oath when made prior to the trial[^1] and, in the case of the statement to the police officers on the night of July 11, 2011 by Ms. Francis during the phone line-up, not videotaped. There is no issue that what was said in the written statements was in fact said by the witnesses. They have been cross-examined on these statements. The evidence of the police officers who took the various statements has been provided and is available. Other evidence in the form of video footage from the apartment building and the audio transcripts of the pol