ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-09099G

DATE: 20141002

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jennifer Pan, David Mylvaganam, Daniel Chi-Kwong Wong and Lenford Roy Crawford

Defendants

Rob Scott, Jennifer Halajian, and Michelle Rumble for the Crown

Paul Cooper, Holly Chapman and Jeffrey Fisher for Jennifer Pan

Peter Bawden for David Mylvaganam

Laurence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong

Darren Sederoff and Brian Micner for Lenford Roy Crawford

HEARD: October 1-2, 2014

ruling on Crown’s application to exclude
the hearsay statement of Louise Bynoe

boswell j.

Introduction

[1] Four co-accused are on trial for murder. One, David Mylvaganam, has raised an alternate suspect defence. The alternate suspect is a man named Desmond Francis.

[2] On June 24, 2011 I issued a ruling granting Mr. Bawden, on behalf of Mr. Mylvaganam, leave to adduce hearsay utterances purportedly made by Mr. Francis to two of his former girlfriends, Louise Bynoe and Rochelle Grant. The particulars of my ruling are set out in reasons reported as R. v. Pan, 2014 ONSC 3800. For now, it is sufficient to note that I concluded that the utterances, though hearsay, were admissible under the principled exception to the hearsay rule, on the basis that Mr. Bawden had established that the proffered evidence of the utterances was both necessary and reliable.

[3] At the time I made the ruling, the Crown’s case was in full swing. The timing of Mr. Bawden’s application – in the midst of the Crown’s case – was agreed to by all counsel, in the interests of trial efficiency.

[4] Fast forward to Mr. Mylvaganam’s defence. Mr. Bawden called, as his first witness, the alternate suspect, Desmond Francis. Several days into his evidence in chief, the Crown has brought an application asking the court to reconsider the reliability of Ms. Bynoe’s statement and exclude it.

[5] A voir dire was hastily arranged. Oral evidence was taken on the voir dire from Mr. Francis, his current girlfriend, Michelle Paquette, and another former girlfriend, Mileca Simpson. When the evidence was completed, I received counsel’s reliably thoughtful and helpful submissions. The issues, as framed by counsel involve:

(a) Under what circumstances, if any, may the court reopen or revisit a prior evidentiary ruling made in the course of a trial?

(b) What is the test for a material change in circumstances and has it been met on this occasion?

(c) Does the new evidence change the court’s view on the threshold reliability of Ms. Bynoe’s statement?

(d) If Ms. Bynoe’s statement remains available to Mr. Mylvaganam as substantive evidence, should the Crown be permitted to call reply evidence from Ms. Paquette and/or Ms. Simpson?

[6] I propose to review the contents of Ms. Bynoe’s statement in brief, followed by a similarly brief description of my prior ruling and the reasons for it. I will then review the evidence Mr. Francis gave in the course of his examination-in-chief during the trial proper (which counsel all agreed would form part of the record on the voir dire). I will then describe the contents of a USB flash drive he produced to counsel during that examination-in-chief and I will briefly comment on the evidence of the witnesses heard on the voir dire. After reviewing the evidentiary record, I will examine the issues raised by counsel.

Louise Bynoe’s Statement

[7] Ms. Bynoe was a former girlfriend of Desmond Francis. Mr. Francis has testified that they carried on a romantic relationship from the end of July 2007 to September 2013. For some portion of the latter part of the relationship, Ms. Bynoe was residing in England. She continues to reside in the U.K.

[8] On December 3, 2013, Ms. Bynoe gave a videotaped statement, taken in England, to Detective David MacDonald of the York Region Police Service. In her statement, she told Detective MacDonald that Mr. Francis had made a number of utterances to her that may connect him to the offences committed in the Pan residence on November 8, 2010. His purported utterances included the following:

• That he hurts people for money;

• That he gets paid a lot of money to do “certain jobs” like robbing people if he has to, or hurting them if he has to; and,

• That he did a job in Markham and that he’d “messed up”. That the woman died but the man didn’t die.

[9] The Crown previously opposed the admissibility of Ms. Bynoe’s statement as substantive evidence; not on the basis of an absence of necessity, but on the basis that it did not meet the requisite test for threshold reliability.

[10] The Crown’s concerns about the reliability of Ms. Bynoe’s statement included the following:

(a) Ms. Bynoe is a scorned lover with a motive to fabricate. The utterances in issue were made to her in late 2010 and early 2011. Yet she did not contact the police until the summer of 2013, almost immediately after her relationship with Mr. Francis ended;

(b) Ms. Bynoe will not be available for cross-examination;

(c) Ms. Bynoe’s evidence can be difficult to follow at times, in terms of sorting out what exactly was said by Mr. Francis and when;

(d) Ms. Bynoe initially believed that Mr. Francis was not being truthful when he made the utterances he purportedly made to her. She thought they were a joke. She claimed that she came to the realization that they were real, in part on the basis of discussions she had with Mileca Simpson, another of Mr. Francis’ former girlfriends. Mileca Simpson, however, does not corroborate Ms. Bynoe;

(e) Mr. Francis has a habit of lying to girlfriends; and,

(f) Mr. Francis has no apparent reason to confess to involvement in a homicide during casual conversation with his girlfriend.

[11] Notwithstanding the Crown’s concerns, I found that Ms. Bynoe’s statement had sufficient threshold reliability to warrant placing the evidence before the jury, who would determine its ultimate reliability.

[12] My decision was informed in large part by the fact that this is defence evidence. In the circumstances, Canadian evidence law requires only that the statement be demonstrated to have “some” reliability to meet the threshold for admission. I held that Ms. Bynoe’s statement was sufficiently reliable based on the following considerations, amongst others:

(a) There are similarities between the utterances made by Mr. Francis to Ms. Bynoe and to his other former girlfriend, Rochelle Grant. In other words, Mr. Francis made inculpatory utterances to two different women, apparently totally independently, at different times;

(b) Mr. Francis’ descriptions of the particulars of the offences are consistent with a number of the known facts of the case, though admittedly, Ms. Bynoe could have obtained many of the particulars from researching the case on the internet;

(c) Ms. Bynoe’s statement was videotaped in its entirety. She was cautioned thoroughly about the potential consequences of making a false or misleading statement. It was, for all intents and purposes, a KGB statement;

(d) Mr. Francis appears to at least loosely match a description Mr. Pan gave of a “Caribbean” intruder. The height description is well off, but Mr. Pan has said his height estimates were a guess;

(e) Mr. Francis was romantically involved with Rochelle Grant in November 2010. Her phone records have been obtained by the police. Those records disclose that between 5:00 p.m. and 9:30 p.m. on November 8, 2010 there were 19 calls between Ms. Grant and Mr. Francis. There were no calls between them from just after 9:30 until 10:48 p.m., when there were four calls in relatively rapid succession, all initiated by Mr. Francis. Other evidence heard during the trial appears to support the conclusion that the three armed males entered the Pan residence at about 10:15 pm. and exited about 10:30 p.m. In other words, there appears generally to have been a very good deal of call activity between Mr. Francis and Ms. Grant on the night of November 8, 2010. The identified period of call inactivity between them appears to correspond with the time during which the offences took place.

The Evidence of Desmond Francis

[13] Mr. Francis has almost completed his examination-in-chief. Mr. Bawden has been most anxious to cross-examine Mr. Francis, for obvious reasons, but he has been handcuffed by the fact that Mr. Francis is his own witness. It is generally improper, of course, to attempt to impeach one’s own witness.

[14] Mr. Bawden has put to Mr. Francis the utterances that Louise Bynoe and Rochelle Grant say he made. Indeed, a portion of Louise Bynoe’s videotaped statement was played to him, where she described certain utterances purportedly made by Mr. Francis implicating himself in the offences now before the court. He has denied making any of those utterances.

[15] With respect to Ms. Bynoe, Mr. Francis offered, largely unprompted, his views of her credibility. He said, amongst other things:

(a) When Louise Bynoe fell out with her former partner, she went after things that he loved. She “went after his pockets” and tried to sabotage those things that he cared about. She was that type of girl;

(b) Louise Bynoe is very powerful. She will search on the internet for particulars of the offence and try to implicate him. She is putting on an innocent woman act. But she is not what you think she is;

(c) Louise Bynoe is very dangerous. She’s a hacker. She has hacker friends. She learned how to hack and got excited. She hacked his social media, his Facebook page and his email;

(d) She has said things like she is going to end his life and end his career. She has made threats to his current girlfriend;

(e) She is not credible because she is merely trying to implicate him.

[16] Mr. Francis’ opinions about the credibility of another witness are inadmissible because they are irrelevant. Nevertheless, he offered to back up his inadmissible opinions with screenshots of communications sent by Ms. Bynoe to his current girlfriend. He said he had the proof on a USB flash drive in his pocket. He provided the drive to Mr. Bawden and any other counsel who wished to copy its contents.

The USB Flash Drive and the Testimony of Michelle Paquette and Mileca Simpson

[17] The contents of the flash drive have given birth to this application. They consist of screenshots from the iPhone of Michelle Paquette who is the current girlfriend of Mr. Francis. What they purport to show, and what I am satisfied that they do show, are communications between Ms. Bynoe and Ms. Paquette.

[18] The communications are unflattering to Ms. Bynoe. Frankly, they make her appear to be a little unbalanced. She is clearly unhappy with Mr. Francis. She has, to say the least, not handled their break-up well.

[19] Ms. Paquette testified that she first had contact with Ms. Bynoe in the spring of 2013. Mr. Francis and Ms. Paquette have had an on-again/off-again relationship since the mid-1990s. Apparently Ms. Bynoe had discovered that Mr. Francis and Ms. Paquette were in an “on-again” phase in the spring of 2013 and had reached out to Ms. Paquette.

[20] According to Ms. Paquette, her communications from Ms. Bynoe were cordial at first. Eventually, however, when it became clear that Mr. Francis’ affections had moved away from Ms. Bynoe, things started to get ugly. Ms. Bynoe made harassing and upsetting phone calls to Ms. Paquette. She threated Ms. Paquette and her children. She posted to Instagram a racist and deplorable photograph of a chimpanzee beside a picture of Ms. Paquettes’ little boy and accompanied it with a reference to him as a “devil child”. She threatened to blow up their home. Ms. Paquette said she has moved her residence three times due to harassment from Ms. Bynoe.

[21] Ms. Bynoe also made threats to Mr. Francis via Ms. Paquette. She said she wanted him dead. She suggested her father was an Islamic extremist, and implied that he was going to see to the death of Mr. Francis. She said “Barbara will be crying for another son”. Barbara is Mr. Francis’ mother. His brother was murdered some twenty years ago.

[22] Mileca Simpson testified that she first had contact with Louise Bynoe about two years ago, when she (Ms. Simpson) was four months pregnant with her youngest child. Ms. Simpson said that she and Mr. Francis were in a romantic relationship at the time. The child she was carrying was his. At first, Ms. Bynoe seemed interested in finding out about the status of Ms. Simpson’s relationship with Mr. Francis. Ms. Simpson said that, concurrently, she was interested in finding out more about Ms. Bynoe’s relationship with Mr. Francis.

[23] Ms. Bynoe, according to Ms. Simpson, began to harass her by “rubbing in her face” the history of the relationship between Ms. Bynoe and Mr. Francis and by describing the many things they’d done together. Ms. Simpson says she told Ms. Bynoe she did not want to hear from her anymore. Ms. Bynoe then stopped communicating with her for about a month.

[24] After that month long break, Ms. Bynoe began communicating again, although now she was, in Ms. Simpson’s words, “angry”. She appeared hurt that Mr. Francis had broken off their relationship. She would regularly send 30 or 40 text messages per day. She expressed angry feelings about Mr. Francis, that he was “this or that” and that he’d never amount to anything. She said her father was in the mafia and she wanted to put out a hit on him. She said Mr. Francis’ mother would be crying over another casket. She said she wouldn’t give up until he was either dead or in jail. Ms. Simpson wasn’t clear on just what it was that Ms. Bynoe would not “give up”.

[25] Unlike Ms. Paquette, Ms. Simpson did not save her digital communications with Ms. Bynoe.

The Issues:

The Reopening of Prior Rulings

[26] The law is well settled on this issue. Where a trial judge has ruled on an evidentiary issue during the course of a trial, he or she may reopen and reconsider the earlier ruling if there has been a material change in circumstances: R. v. Li, 2012 ONCA 291; R. v. La (Appeal by Vu), [1997] 2 S.C.R. No. 30.

The Material Change in Circumstances Test

[27] Justice Sopinka, writing for the majority of the Supreme Court in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, described a material change in circumstances as “a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.” (para. 21).

[28] The evidence of Ms. Paquette and Ms. Simpson is “new” evidence, in the sense that it was not known to either the Crown or the defence at the time the application to admit Ms. Bynoe’s statement was initially argued in June 2014. That said, counsel have different positions about: (1) whether the new evidence constitutes a material change in circumstances; and (2) whether, in any event, it was a matter that was known at the time of the earlier application.

[29] The evidence of Ms. Paquette and Ms. Simpson goes to the issue of whether Ms. Bynoe had a motive to fabricate evidence against Mr. Francis when she made her statement to Detective MacDonald in December 2013. As Ducharme J. observed in R. v. Warsame, 2012 ONSC 3927, the presence, or absence, of a motive to fabricate is considered to be a principal factor in the determination of the matter of threshold reliability when applying the principled exception to the hearsay rule.

[30] When the original application was argued in June 2014, the Crown raised a concern about Ms. Bynoe’s motive to fabricate. At that time, the concern was premised on the circumstances as the Crown then knew them to be. In particular, that Ms. Bynoe had known about Mr. Francis’ purported utterances since 2010 or 2011, but had only come forward with them in the latter part of 2013, shortly after her somewhat lengthy relationship with Mr. Francis had come to a disappointing end. A motive to fabricate was one factor that I considered as part of my prior ruling.

[31] The Crown did not have available, at the time of the original argument, the evidence of Ms. Paquette and Ms. Simpson. It is very compelling evidence. Mr. Bawden asserts that much of it is inadmissible. I agree that certain parts are not admissible, but there is sufficient evidence – admissible evidence – that paints a very compelling picture of Ms. Bynoe as a more than disgruntled ex-lover. She comes across as hell-bent on revenge. Had this evidence been available during the initial argument of the motion, it may very well have resulted in different terms, to borrow Sopinka J.’s language. On that basis, I am satisfied that it is sufficient to support a material change in circumstances.

[32] Having said that, I must address the corollary to the material change assessment, as identified by Sopinka J. Specifically, “if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.” Mr. Bawden argues that this “matter”, the matter of a motive to fabricate, was known to the Crown at the time the original application was argued. Nevertheless, he concedes that the evidence of Ms. Paquette and Ms. Simpson was not known and could not have been obtained by the Crown prior to the initial argument, even with the exercise of reasonable diligence.

[33] Mr. Fisher, on behalf of Jennifer Pan, asserts that not only was the matter of a motive to fabricate known to the Crown at the time of the original argument, but the Crown also knew, long ago, of the existence of the screenshots produced in evidence by Ms. Paquette. Mr. Fisher suggests that the only reason the Crown did not actually have the screenshots is because of a lack of due diligence.

[34] Evidence on the original application to admit Ms. Bynoe’s videotaped statement as substantive evidence began to be heard, by way of a voir dire in November 2013. Mr. Francis testified on the voir dire in November and December 2013 and he revealed the existence of the screenshots at that time. On December 16, 2013 he was asked by Crown counsel whether he would be prepared to provide the Crown with copies of the screenshots of Ms. Bynoe’s digital messages to Ms. Paquette. He said he would be prepared to do so. The Crown followed up with a letter to Mr. Francis’ lawyer, but received no reply.

[35] Mr. Fisher asserts that a single letter to Mr. Francis’ lawyer was insufficient, relative to the importance of the evidence, and that the Crown, in the circumstances, is not able to seriously contend that they could not have obtained the evidence with the exercise of due diligence.

[36] There may be something to be said for Mr. Fisher’s argument. If a party to litigation was of the view that there was material and important evidence in the hands of a third party, one might expect that they would not be so readily dissuaded from pursuing that evidence by the lack of response to one piece of correspondence.

[37] Having said that, I must consider the limited follow-up to Mr. Francis’ undertaking in the context of the application as a whole. First of all, this wasn’t a Crown application. It was a defence application. Second, Mr. Francis may not be, on the scale of credible witnesses, at the high end. Third, witnesses will frequently say that they have credible proof of some point they are making (but not with them). Mr. Francis said, in response to a number of questions, that he could obtain supporting documentation, none of which he ever provided. At some point the Crown has to make a judgment call about just how much effort they will expend chasing down what likely appeared to be hollow assertions on the part of Mr. Francis. To be clear, Mr. Francis had not previously been co-operative with the authorities. There was little reason to expect his position would change. The lack of response from Mr. Francis’ counsel is consistent with Mr. Francis’ prior approach. I am not prepared to second-guess the Crown’s judgment call in this instance.

[38] In the result, I find that on this application there is new evidence, not known to any of the parties at the time the application to adduce Ms. Bynoe’s statement was originally argued. The new evidence offers compelling support to the Crown’s assertion that Ms. Bynoe had a motive to fabricate when she made her statement to York Region Police officers in December 2013. It is evidence that may have affected the result of the original application had it been known at the time.

[39] I am satisfied that the material change threshold has been met. I may reopen and reconsider the prior ruling granting Mr. Bawden leave to adduce Ms. Bynoe’s statement as substantive evidence.

[40] What I must now consider is whether the new evidence, considered contextually, undermines the reliability of Ms. Bynoe’s statement to such a degree that I can no longer conclude that it meets the test for threshold reliability.

Revisiting Threshold Reliability

[41] I do not propose to repeat my review of the law relating to the principled exception to the hearsay rule, as I set it out in a fulsome enough way in my earlier ruling on the admissibility of Ms. Bynoe’s statement. I will, however, repeat my reference to the following comments of Justice Strathy, now Chief Justice Strathy, from R. v. Badgerow, 2014 ONCA 242, at para. 99, where he explained that the principled approach to the admissibility of hearsay evidence,

recognizes that “a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence”…It permits hearsay evidence not falling within a traditional exception to be admitted, provided its admission is necessary and it has sufficient indicia of reliability or there are sufficient means to test the evidence to compensate for the inability to cross-examine…(internal citations omitted).

[42] As Justice Strathy’s comments highlight, sufficient threshold reliability is required as a pre-requisite to the admissibility of a hearsay utterance because of the inability of counsel to cross-examine the declarant (in this case, Ms. Bynoe) on the contents of her statement. Should Ms. Bynoe be present in court to provide the same evidence she gave to Detective MacDonald, counsel would have an opportunity to cross-examine her about such matters as the circumstances in which Mr. Francis’ purported utterances were made; her condition and that of Mr. Francis at the time of the purported utterances; whether there is any reason why she may have misheard or misunderstood what Mr. Francis was saying; and, perhaps most importantly, whether there are any reasons why she may not be accurately reporting what she heard, if anything. In other words, whether she might be making it all up.

[43] In R. v. Khelawon, 2006 SCC 57 at para. 49, Justice Charron described the need to establish threshold reliability as a function of the integrity of the trial process:

The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declaration would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstance will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness.

[44] It remains important to recognize that the evidence on offer – Ms. Bynoe’s statement – is defence evidence. The threshold reliability standard is relaxed somewhat when the evidence in issue is part of a defence case, as opposed to being a part of the Crown’s case. As Martin J.A. held in R. v. Williams (1985), 1985 113 (ON CA), 18 C.C.C. (3d) 356 (Ont. C.A.) at 378:

It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.

[45] Justice Martin’s comments have been cited, with approval, by Justice Cory in R. v. Finta (1994), 1994 129 (SCC), 88 C.C.C. (3d) 417 (S.C.C.) at 527, and by Justice Rosenberg in R. v. G.F., 1999 3684 (ON CA), [1999] O.J. No. 143 (Ont. C.A.) at paras. 48-49. In G.F., Rosenberg J.A. described the somewhat relaxed standard as requiring the defendant tendering the evidence to demonstrate that it has “some” reliability. Just what the standard of “some reliability” demands is a matter of some debate.

[46] In this instance, I am satisfied that the evidence of Ms. Paquette and Ms. Simpson establishes a strong motive to fabricate on the part of Ms. Bynoe. That strong motive to lie – to implicate Mr. Francis in a murder he did not commit in order to get revenge on him for breaking her heart – is a compelling factor when assessing the reliability of her statement to Detective MacDonald. If this were Crown evidence, tendered as part of the case against an accused, I would not hesitate to find that it did not meet the threshold reliability standard. But as defence evidence, and in the prevailing circumstances, I am not persuaded that I should reverse my earlier ruling and now exclude the statement.

[47] Although I have very serious reservations about what motivated Ms. Bynoe’s statement, I am of the view that it ought to remain before the jury as substantive evidence based on the following considerations:

(a) First, because there continues to be “some” reliability to the statement;

(b) Second, because I believe that the integrity of the trial will be best served by permitting the evidence to be called, and by permitting the Crown to reply with the evidence of Ms. Paquette and Ms. Simpson.

I will elaborate on both considerations.

Some Reliability

[48] While a motive to fabricate is a principal factor to be considered in the threshold reliability analysis, the presence or absence of a motive to fabricate is clearly not the only factor, nor necessarily the most important factor, in that assessment. It is certainly one factor. Its importance must be assessed contextually. See R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 42.

[49] The significance of Ms. Bynoe’s possible motive to fabricate has substantially increased by the introduction of the new evidence of Ms. Paquette and Ms. Simpson. I would go so far as to say it has very nearly, in my view, become so prominent a factor as to render her statement so unreliable as to not be worth the risk of leaving it with the jury to consider. But there do remain other factors that affect its reliability. The new evidence does not entirely overwhelm those factors. I remain of the view that there is “some” reliability to the statement.

[50] In particular, the circumstances in which the statement were taken lend some, though admittedly weak, support to its reliability. It was videotaped in its entirety and Ms. Bynoe was fully cautioned about the possible consequences of making a false statement.

[51] In addition, it remains the case that Mr. Francis purportedly made inculpatory utterances to two former girlfriends – Ms. Bynoe and also Rochelle Grant. While the purported utterances are not what I would describe as “strikingly similar” they nevertheless do tend to corroborate one another. There is no evidence that Louise Bynoe and Rochelle Grant have communicated with one another or colluded in any way.

[52] Moreover, Rochelle Grant has testified on a voir dire, and presumably will testify at trial, that Mr. Francis was with her on the night of the murder of Bich Ha Pan. He left to go out with “S”, which is the name she knew Eric Carty by. Mr. Carty is alleged by the Crown to be culpable for the murder of Bich Ha Pan and the attempted murder of Hann Pan. Ms. Grant said that Mr. Francis returned later in the evening wearing different clothes and handed her his original clothes which were covered in blood, asking her to dispose of them. This evidence, if believed, certainly supports Mr. Francis’ opportunity to have committed the offences.

[53] In addition, the phone records of Rochelle Grant demonstrate that she had a series of phone calls with Mr. Francis’s phone up until a short time before the commission of the offences. The phone calls stop during the period of time that the offences were committed, then pick up again not long afterwards.

Integrity of the Trial

[54] This trial is no longer in the same position it was in when the application to adduce Ms. Bynoe’s statement was first argued. Mr. Bawden has now made his opening to the jury. He has made extensive references to the alternate suspect defence and to Ms. Bynoe’s statement. An important portion of Ms. Bynoe’s statement has already been played for the jury. Mr. Francis has already denied that he made any of the statements attributed to him by Ms. Bynoe.

[55] The question arises, what result would better serve the integrity of the trial process: excluding Ms. Bynoe’s statement and any further references to it; or permitting the statement to go in, together with the evidence of Ms. Paquette and Ms. Simpson, which bears on its reliability?

[56] As I indicated above, were Ms. Bynoe’s statement to be tendered by the Crown as evidence against an accused person, I would not be inclined to find that it met the test for threshold reliability. While the reliability standard is relaxed for defence evidence, it is not altogether abandoned. A defendant is not entitled to adduce hearsay evidence which is wholly unreliable. To do so would not only waste time, but it would risk distracting the jury and distorting the truth-finding process that is at the heart of a trial.

[57] In this instance, I have found that the statement continues to have “some” reliability, though, candidly, that reliability has taken a beating. In light of that finding, and in circumstances where the statement has been referred to in evidence already, during the examination of Mr. Francis, and where he has made his denials, it seems to me more conducive to the truth-finding process, and the fair trial right of Mr. Mylvaganam, to permit the jury to hear the statement and to consider and weigh the evidence of Ms. Paquette and Ms. Simpson.

[58] At the end of the day, given what has already transpired in the evidentiary record, and given what evidence is yet to come about the alternate suspect, it seems to me that the jury will be in the best position to decide what weight to put on the alternate suspect evidence as a whole, if they hear Louise Bynoe’s statement and consider it in light of the balance of the evidence, including the testimony of Ms. Paquette and Ms. Simpson.

[59] It may also be said that having the evidence of Ms. Simpson and Ms. Paquette will offer an additional means for the jury to test the credibility and reliability of Ms. Bynoe’s statement, by means other than contemporaneous cross-examination. In other words, although the new evidence may cast some doubt on the issue of threshold reliability, it arguably enhances the jury’s ability to decide the ultimate reliability of Louise Bynoe’s statement.

Conclusion:

[60] In the result, while I conclude that there has been a material change in circumstances that provides the jurisdiction to revisit my earlier ruling, I find that I am still satisfied that Ms. Bynoe’s statement may be tendered by Mr. Bawden as substantive evidence of its contents.

[61] That said, it will give rise to reply evidence from the Crown, in the form of the testimony of Ms. Paquette and Ms. Simpson. There may arguably have been an issue about the Crown’s ability to call reply evidence to contradict or undermine Ms. Bynoe’s statement, on the basis that it may offend the collateral facts rule. But it is conceded by Mr. Bawden, fairly so, that this evidence falls within an exception to the collateral facts rule as evidence that goes to proof of bias, interest or corruption. In the result, the Crown will be permitted to call Ms. Paquette and/or Ms. Simpson in reply. Any arguments about the parameters of their evidence may be addressed as and when they are called.

Boswell J.

Released: October 2, 2014