ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 2013-10-02
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: October 1, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
MID-TRIAL RULING REGARDING THE ADMISSIBILITY OF PROPOSED DEFENCE EVIDENCE AS TO THE TESTIMONY
OF A.W. AT THE PRELIMINARY INQUIRY
CONLAN J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] In the course of the case for the Defence, the Defence has applied to introduce in to evidence excerpts from the testimony of A.W., the mother and aunt of the two alleged young victims, at the Preliminary Inquiry held on December 13, 2012.
[3] For clarity of the record in the event that this matter is ever reviewed on appeal, the specific excerpts that the Defence seeks to introduce are (a) page 85 line 8 to the bottom of page 88, minus the comments by the Justice, and (b) page 113 line 13 to page 115 line 18 of the transcript of A.W.’s testimony at the Preliminary Inquiry.
[4] The proposal is that Defence counsel read out to the jury, as part of the case for the Defence, the said excerpts.
The Positions of the Parties
[5] The Defence submits that the said evidence is admissible in the absence of A.W. being called as a witness at the trial on one or more of these three bases: under subsection 23(1) of the Canada Evidence Act (“CEA”), under subsection 715(1) of the Criminal Code of Canada (“CCC”), and/or under the common law authority outlined in, for example, the decision of the Supreme Court of Canada in R. v. Hawkins, 1996 154 (SCC), [1996] S.C.J. No. 117.
[6] The Crown argues that the proposed evidence is inadmissible hearsay and should not be allowed to be introduced at trial under any of the bases relied upon by the Defence.
Analysis
[7] Strictly speaking, subsection 23(1) of the CEA is not available to the Defence because the required notice under section 28 of the CEA has not been given.
[8] Strictly speaking, subsection 715(1) of the CCC is not available to the Defence because, although I am told that A.W. is, at least as of October 1, 2013 (the date that this matter was argued by counsel), in Virginia and thus absent from Canada [subsection 715(1)(d) CCC], she was apparently not absent from Canada and was in fact here during at least some of the trial.
[9] Further, subsection 715(1) of the CCC clearly contemplates that the application is at the request of the Crown, not the Defence.
[10] Strictly speaking, the decision of the Supreme Court of Canada in Hawkins, supra is not on all fours with the facts before me as the witness in that case was unavailable to testify because of the common law rule of spousal incompetence. That is not the case here. A.W. is clearly a competent and compellable witness at the instance of either the Prosecution or the Defence.
[11] Further, the Court in Hawkins, supra made it clear that, even where all of the requirements of subsection 715(1) CCC are met, the Court has a residual discretion to exclude such evidence.
[12] Nevertheless, I am less concerned about formalities. I agree with counsel for the Defence that substance must take precedence over form.
[13] I may have considered relaxing the strict statutory requirements of subsection 23(1) of the CEA and/or subsection 715(1) of the CCC if I was satisfied that the proposed evidence was otherwise admissible.
[14] I am not so satisfied, on balance.
[15] Is the proposed evidence necessary and reliable? Hawkins, supra
[16] I conclude that it is not. Although the proposed evidence likely meets the test of threshold reliability, it is not necessary because A.W. clearly could have been called as a witness at trial.
[17] Even if I was persuaded that the proposed evidence is both necessary and reliable, which I am not, I would still exclude the evidence on the basis that its probative value is limited and outweighed by its prejudicial effect. It is clear from the Court’s decision in Hawkins, supra that I retain the discretion to exclude the evidence on that basis.
[18] The Defence wants to show that A.W. admitted at the Preliminary Inquiry that, at a previous trial where she was the complainant and Mr. W. was the accused, she recanted what she had told the police under oath. Further, the Defence wants to show that A.W. said at the Preliminary Inquiry that she had made her allegations to the police which culminated in that previous trial because she wanted to “screw” Mr. W.. And the Defence wants to show that A.W. stated at the Preliminary Inquiry that what she testified to in Court under oath at that previous trial was actually false.
[19] The probative value of this proposed evidence is slight.
[20] First, A.W. is not one of the complainants in the case at bar. Whether she is a liar or not has nothing to do with whether the two young girls will be found by this jury to be credible and reliable witnesses.
[21] Second, absent the proposed evidence, there is absolutely nothing precluding the Defence from arguing before the jury that A.W. had made prior criminal complaints about Mr. W.; that he was consequently charged and spent several months in jail; that A.W. testified at his trial on those charges; and that Mr. W. was found not guilty of those charges (all of those items are already in evidence at this trial through Mr. W. and have not been contradicted by anything).
[22] Third, absent the proposed evidence, there is absolutely nothing precluding the Defence from arguing before the jury that A.W. played a part in the false allegations of these two complainants, her daughter and her niece.
[23] Further, quite apart from the normal dangers associated with hearsay evidence such as no opportunity for the trier of fact to observe the witness and no ability to cross-examine the witness at trial, the prejudicial effect of the proposed evidence is significant.
[24] First, it is internally confusing. If A.W. lied at Court in that former trial when she recanted her statement to the police, then it makes no sense that she made her statement to the police to “screw” Mr. W.. You do not make a true statement to the police in order to “screw” someone.
[25] Second, the proposed evidence is chalk full of inadmissible material which would serve only to distract the jurors and necessitate further limiting instructions to them. For example, the proposed evidence includes references to the details of what Mr. W. allegedly did to A.W. in support of those prior charges. And it includes evidence of Mr. W.’s bad character in allegedly engaging in infidelity.
[26] Third, the proposed evidence contains irrelevant information which would equally serve only to distract the jurors and necessitate further limiting instructions to them. For example, the proposed evidence includes references to Mr. W. having “found God”. I fail to see how that is in any way relevant to the issues to be decided by this jury.
Conclusion
[27] I conclude that the proposed evidence is inadmissible.
[28] It is not necessary. Perhaps more important, its probative value is outweighed by its prejudicial effect.
Conlan J.
Released: October 2, 2013
COURT FILE NO.: 17/13
DATE: 2013-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR dECISION
Conlan J.
Released: October 2, 2013