ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-A11560
DATE: 2014/03/21
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
NOURADINE AHMED
Respondent
Kerry McVey, for the Crown
Cedric Nahum, for the Respondent
HEARD: March 17-19, 2014 (at Ottawa)
decision on Application to admit evidence pursuant to s. 715 of the criminal code of canada
lalonde J.
OVERVIEW
[1] Mr. Ahmed stands charged of assault, contrary to s. 266 of the Criminal Code; assault causing bodily harm, contrary to s. 267(b) of the Criminal Code; and uttering a threat to cause death, contrary to s. 264.1(1)(a) of the Criminal Code. The complainant is Shirley Hunkin.
[2] A preliminary hearing was held on August 22, 2013, in front of Justice D. Paciocco in the Ontario Court of Justice.
[3] The evidence at the preliminary hearing was that Mr. Ahmed assaulted Ms. Hunkin in a McDonald’s washroom (the McDonald’s) in Ottawa’s downtown core. It is alleged that a verbal altercation started in the Market Area in the City of Ottawa over payment for drugs. Mr. Ahmed followed Ms. Hunkin into the McDonald’s and into the ladies bathroom. He then locked the door and beat her in the face and head.
[4] At the preliminary inquiry, Mr. Yvan Kieffer testified that he witnessed – and in fact intervened in – the initial altercation between the parties outside of the McDonald’s. Ms. Hunkin appeared uninjured at that time. Mr. Kieffer then witnessed the parties enter the McDonald’s restaurant. A short time later, he saw a male running from that location. Neither individual was known to him at the time, though he recognized the female as a woman he would often see near his restaurant.
[5] At the time of the offence, Mr. Kieffer managed the Aulde Dubliner restaurant on Williams St. in the Market Area.
[6] The Crown has recently become aware that Mr. Kieffer is living in Nicaragua and is therefore unavailable to testify. He moved to Nicaragua in December of 2013 to manage a hotel; he left for Nicaragua before he was subpoenaed for trial.
[7] The Crown is seeking to have the evidence given by Mr. Kieffer at the preliminary inquiry read in at trial pursuant to s. 715 of the Criminal Code.
SECTION 715 OF THE CRIMINAL CODE
[8] Section 715 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
(a) is dead,
(b) has since become and is insane,
(c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,
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 witness proves that the accused did not have full opportunity to cross-examine the witness.
[9] The leading case on the interpretation of section 715 is R. v. Potvin, 1989 SCC 130, [1989] 1 S.C.R. 525. There, during the accused’s trial for second-degree murder, the evidence of his alleged accomplice was read in pursuant to s. 715 of the Criminal Code after he refused to testify.
[10] The Supreme Court found that s. 715 did not violate s. 7 or 11(d) of the Charter. The ability to cross-examine all adverse witnesses in front of the trier of fact is not a principle of fundamental justice. And in the absence of circumstances that negate or minimize an accused’s ability to cross-examine at a preliminary inquiry, the inability to cross-examine at trial does not render a trial unfair (para. 18).
[11] A trial judge does have discretion to exclude evidence that would otherwise be admissible under the section. This discretion may be exercised in two scenarios: 1) where the prior testimony was obtained in a manner that was unfair; or 2) where its admission at trial would be unfair to the accused. When exercising this discretion, trial judges must consider society’s interest in having probative evidence admitted at trial:
What then is the nature and purpose of the discretion conferred in s. 643(1) which enables the trial judge not to allow the evidence in at trial even in cases in which the requirements of the section have been met? In my view there are two main types of mischief at which the discretion might be aimed. First, the discretion could be aimed at situations in which there has been unfairness in the manner in which the evidence was obtained. Although Parliament has set out in the section specific conditions as to how the previous testimony has to have been obtained if it is to be admitted under s. 643(1) (the most important, of course, being that the accused was afforded full opportunity to cross-examine the witness), Parliament could have intended the judge to have a discretion in those rare cases in which compliance with the requirements of s. 643(1) gave no guarantee that the evidence was obtained in a manner fair to the accused. … An example of unfairness in obtaining the testimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained the witness's attendance at trial with a minimal degree of effort. Another example might be a case in which the Crown was aware at the time the evidence was initially taken that the witness would not be available to testify at the trial but did not inform the accused of this fact so that he could make best use of the opportunity to cross-examine the witness at the earlier proceeding. These kinds of circumstances related to the obtaining of the evidence on the earlier occasion might have been in the mind of the legislator as triggering the judge's discretion with respect to its admission at the trial.
A different concern at which the discretion might have been aimed is the effect of the admission of the previously taken evidence on the fairness of the trial itself. This concern flows from the principle of the law of evidence that evidence may be excluded if it is highly prejudicial to the accused and of only modest probative value…
[12] Circumstances that justify the exclusion of prima facie admissible evidence will be “rare”:
… I believe it confers on him or her a discretion not to allow the previous testimony to be admitted in circumstances where its admission would operate unfairly to the accused. I hasten to add, however, that such circumstances will be relatively rare and that the discretion to prevent unfairness is not a blanket authority to undermine the object of s. 643(1) by excluding evidence of previous testimony as a matter of course. (Potvin, para. 30)
[13] When exercising this discretion trial judges must weigh two competing and frequently conflicting interests: 1) fair treatment of the accused; and 2) society’s interest in the admission of probative evidence to get at the truth of the allegations in issue: see Potvin; R. v. Saleh, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 74.
[14] When considering the impact of admission on trial fairness, it is “critical to remember…that a fair trial is not the most advantageous trial possible from the accused’s point of view. A fair trial is not a perfect trial”: Saleh, at para. 81.
[15] The following factors are relevant when determining whether to exclude evidence that is prima facie admissible pursuant to s. 715:
• The probative/crucial nature of the evidence: Potvin, at paras. 38, 40; Saleh, at para. 77; high probative value can favor admission: Potvin, at paras. 38, 40;
• Any restrictions placed on the accused’s right to cross-examine at the preliminary hearing: R. v. Michaud (2000), 2000 NBCA 14347, 144 C.C.C. (3d) 62 (N.B.C.A.).
• Other corroborating evidence: Potvin, at para. 40;
• The extent to which the credibility of the witness whose evidence is tendered for admission is at issue: Saleh, at para. 77;
• Any “manifest unreliability” associated with the witness’ evidence: Saleh, at para. 91;
• The failure of the Crown to disclose relevant evidence at the time of the preliminary hearing: R. v. Lewis, 2009 ONCA 874, 249 C.C.C. (3d) 265.
• Whether the Crown was aware at the time of the preliminary hearing – and failed to disclose – that the witness would be unavailable for trial: Potvin, at para. 34; and
• Whether the Crown has made efforts to proffer the evidence in a live manner via audio or video technology: see R. v. Li, 2012 ONCA 291, 284 C.C.C. (3d) 207 at paras. 44, 56.
CROWN’S POSITION
[16] In Li, three accused stood charged of aggravated assault. At trial, the Crown sought to invoke s. 715 to tender the evidence of Mr. Yii, a suspected accomplice who testified at the preliminary hearing. By the time of trial, Mr. Yii was living in Singapore. Out of 11 eyewitnesses who testified at the preliminary hearing, Mr. Yii was the only one who identified the accused as the attackers. His evidence was therefore crucial to the Crown’s case.
[17] The Crown did not attempt to subpoena Mr. Yii until two weeks before trial. By that time, Mr. Yii was living in Singapore. When the Crown contacted him in Singapore, he indicated a willingness to return to testify but could not afford the airfare. He also asked whether “there was some other way that his evidence could be heard” (para. 58). He subsequently became unreachable by phone; no further efforts were made to contact him and no inquiry was made into having him testify through video link.
[18] The Ontario Court of Appeal found the evidence should not have been admitted because of the Crown’s lack of due diligence in securing Mr. Yii’s evidence through alternative means. This was particularly problematic because of 1) Mr. Yii’s motive to lie; 2) the “crucial” nature of his evidence for the Crown – he was the only one who identified the accused (para. 62); and 3) the fact that Mr. Yii at an early stage indicated a willingness to testify electronically.
[19] The Court emphasized, however, that efforts made by the Crown in this regard are only a factor. The failure to make such efforts is not fatal – the outcome will turn on a balancing of all the relevant considerations (paras. 53, 56).
[20] The Crown submits that in the present matter, the following facts militate in favor of admitting the evidence:
• The accused, through experienced counsel, had a full opportunity to cross-examine Mr. Kieffer at the preliminary inquiry, and, in fact, utilized that opportunity;
• This is not a case where the witness is refusing to be sworn where inherent reliability concerns may arise;
• The credibility of Mr. Kieffer is not at issue – he was an independent witness with little or no affiliation with either party and had/has no stake in the outcome;
• Mr. Kieffer was not alleged to have played a role in the offence;
• There has been no further or additional disclosure since the preliminary hearing which could reasonably bear on the scope of the cross-examination conducted;
• At the time of the preliminary hearing there was nothing to suggest that this individual would be unavailable for trial;
• Mr. Kieffer’s evidence is corroborated by the evidence of the complainant and another independent witness; it is far from “manifestly unreliable”; and
• The evidence is highly probative and not prejudicial.
DEFENCE POSITION
[21] Counsel argues that the principles of hearsay came into play. In Li at paras. 59, 60 and 61, the court made it a condition that in order for the trial judge to exercise his or her discretion, the Crown must show that it has made minimal efforts to obtain the witness’s evidence; otherwise, the criteria in s. 715 is not met.
[22] In this case, defence counsel points out that no efforts were made to obtain Mr. Kieffer’s evidence by using electronic equipment either by video or telephone conferencing. This case ought to be adjourned in order for the Crown to comply with its obligation to attempt to obtain the evidence by video link or other technological manner as outlined in s. 714.1 and 714.2 of the Criminal Code. Then and only then, if the Crown fails to obtain the evidence, the evidence taken at the preliminary hearing can be read in at trial.
ANALYSIS AND DECISION
[23] It is clear that counsel do not agree on the test that has to be met in this case in order for this court to receive Mr. Kieffer’s evidence.
[24] I agree with Crown counsel that there is no minimal requirement as suggested by defence counsel to have Mr. Kieffer’s evidence admitted at this trial. The authority for this conclusion is found in paras. 53, 56, 59 and 60 in Li:
It is not necessary to decide in this case whether the Finta standard for necessity ought to be read into s. 715(1)(d). However, consistent with the view expressed in Wilcox, the considerations that inform the application of the principled approach in cases like O’Connor J. – and specifically, the attention given to technological means of taking evidence in that case – may also inform the exercise of the discretion under s. 715(1).
It seems to me that when s. 715(1)(d) is read together with ss. 714.2 and 714.4, it is incumbent on a trial judge to include, as a consideration before making the order, the possibility of taking the evidence in a live manner via audio or video technology.
In this case, the Crown failed to take minimal efforts to get the witness’s evidence before the court through teleconference or videoconference, a factor that the trial judge did not weigh when exercising his residual discretion under s. 715(1).
It appears that on the facts of this case, the trial judge’s discretionary consideration of the minimal efforts that must be taken by the Crown under s. 715(1) overlapped with the necessity analysis of the principled approach. If the Crown does not use sufficient effort to try to get the witness to testify before the jury where the witness may have done so, the court is more likely to find that although he was not in Canada, it was not necessary to read in his preliminary inquiry evidence.
[25] I find that a failure to obtain or to offer alternative means to Mr. Kieffer is only one factor for me to consider and the fact that the Crown did not attempt to obtain the evidence through electronic means is not fatal to this application (Li at para. 60).
[26] In considering whether to exclude evidence from the preliminary hearing to be read in, I have to consider two scenarios as stated in Potvin, namely:
(1) The unfairness in the manner in which the evidence was obtained;
(2) Whether the impact of receiving the evidence runs counter to trial fairness.
[27] In Potvin, the court also pointed out that refusing to accept the evidence will be rare. In that case there had been no cross-examination on the evidence whereas in this case Mr. Kieffer was cross-examined on his evidence given at the preliminary hearing. This eliminates the prejudice to Mr. Ahmed.
[28] In both Potvin and in Saleh, the accused had refused to give evidence after having given prior statements. Mr. Kieffer’s credibility in the present case is not at issue. Moreover, he has no stake in the outcome and he is not suspected of playing a role in these charges. In Saleh, the accused’s evidence was unreliable. In this case, Mr. Kieffer’s evidence, as appears from the evidence heard so far and when compared to the preliminary hearing transcript, seems to be corroborated by the complainant Shirley Hunkin.
[29] In Li, multiple accused were on trial for a vicious beating with a machete and the event was gang-related. Mr. Li was the only witness that could implicate both accused and his evidence was crucial to the Crown’s case. The Crown was aware that Mr. Li had failed to show up before and did nothing to subpoena him until two weeks before trial. The police reached Mr. Li in Singapore and he told police he could not afford the airfare. He asked police if there was any other way the he could testify and the police made no efforts to obtain his evidence. It is understandable why the Ontario Court of Appeal found fault with the Crown for not obtaining Mr. Li’s evidence. The Court of Appeal had the opportunity to say that the Crown’s lack of efforts to secure evidence in such cases was fatal. The court did not say that.
[30] In the circumstances of this case the evidence of Mr. Kieffer is admitted and can be read in from the transcript of the preliminary hearing.
Mr. Justice Paul F. Lalonde
Released: March 21, 2014
COURT FILE NO.: 12-A11560
DATE: 2014/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
NOURADINE AHMED
Respondent
decision on Application to admit evidence pursuant to s. 715 of the
criminal code of canada
Lalonde J.
Released: March 21, 2014