CITATION: R. v. Denis, 2015 ONSC 144

COURT FILE NO.: 10-1900

DATE: 2015/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

Rachelle Denis

Respondent

Matthew Humphreys & Fara Rupert, for the Crown

Natasha J. Calvinho, for the Applicant

HEARD: December 19, 2014

DECISION ON ADMISSIBILITY OF

STATEMENTs of the Deceased, Tarik “Tony” El-Kassis

R. SMITH J.

[1] The Crown has brought an application seeking a ruling that the statements made by the deceased, Tony El-Kassis, to members of his family, his friends and the police are necessary, reliable and admissible at Ms. Denis trial.

[2] The Defence consents to the admission of a number of statements made by the deceased as circumstantial evidence to show his state of mind; a number which are admissible as they are not hearsay; and a few are admissible under the principled exception to the hearsay rule. The 34 statements are identified on a chart which is attached as schedule A to this decision.

[3] There are four areas of dispute by the defence:

(a) Statement #2 where the deceased told his wife that he was “trapped”;

(b) Statement #9 where the deceased told his wife that he did not want Ms. Denis arrested because of her children;

(c) The deceased’s statements in his application for an Section 810 Peace Bond; and

(d) The deceased’s statements to police officer Dan Jesty.

[4] The Defence opposes the admissibility of statements #2, #9, #10, #11, #12, #13, #14, #15, #24, and #25 which are greyed on the chart.

Legal Principles

[5] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 para. 56, the court stated as follows:

The first matter to determine before embarking on a hearsay admissibility inquiry, of course, is whether the proposed evidence is hearsay. This may seem to be a rather obvious matter, but it is an important first step. Misguided objections to the admissibility of an out-of-court statement based on a misunderstanding of what constitutes hearsay are not uncommon. As discussed earlier, not all out-of-court statements will constitute hearsay. Recall the defining features of hearsay. An out-of-court statement will be hearsay when: (1) it is adduced to prove the truth of its content and (2) there is no opportunity for a contemporaneous cross-examination of the declarant.

[6] R. v. Carson Morin is a decision released on December 8, 2014 by Paciocco J. At para. 5, he dealt with statements that were considered as circumstantial evidence of fear. Paragraph 5 states as follows:

I am confident that these statements satisfy the standards of admissibility for circumstantial evidence adopted in R. v. P.(R.) [1990] O.J. No. 3418 (Ont.H.C.J.) Justice Doherty J., as he then was, instructed at para.16, that:

Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems [a]rising out of the inference drawing process.

State of mind and principled exception to the hearsay rule

[7] In R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 para. 38, Justice Charron stated as follows:

…the trial judge starts from the premise that hearsay statements are presumptively inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule. Otherwise, the trial judge risks falling into error by reversing the onus.

[8] In R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23 para. 15 and endorsed in R. v. Khelawon, supra, para. 42, the following approach was taken;

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[9] At paras. 47 and 50 of the Khelawon decision, the court held that the voir dire must be held to determine the issues of necessity and that necessity and reliability have been established. The onus of establishing necessity and reliability is on a balance of probability and this onus rests with the Crown. The test as set out in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 para 48 is therefore that the trial judge need only be convinced on a balance of probabilities that the statement is likely to be reliable.

[10] In Khelawon at paras. 61-66, the court stated that the legal test for the assessment of threshold reliability is that the party seeking the admission of a hearsay statement must demonstrate that the circumstances surrounding the making of the statement are sufficiently supportive of its reliability to permit its admission, despite the absence of an opportunity to cross-examine the declarant.

[11] In para. 76 of Khelawon, the court stated when the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statements’ 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 up to the ultimate trier of fact when the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not.

[12] The presence or absence of a motive to lie is a relevant consideration in assessing the circumstance in which the statement came to determine whether or not they are admissible. However, the declarant’s motive is only one factor to consider in determining threshold reliability although, potentially significant. The focus of the admissibility inquiry in all cases must be not on the presence or absence of a motive, but on the particular danger arising from the hearsay nature of the evidence.

[13] In R. v. Pasqualino, 2008 ONCA 554, [2008] O.J. No 2737 (C.A) para. 43, the court stated as follows:

The trial judge examined the available corroborating evidence and the circumstances in which the statements were made, and found that the statements at issue were made in the context of everyday intimate conversations between close relatives and friends where there was no motive to fabricate. This court has signalled that the context of a "special" relationship can constitute an indicator of reliability, see Czibulka at para. 47, and I see no error in the trial judge's conclusion that the statements possessed sufficient hallmarks of threshold reliability.

Applying the Principles

Statement #2

[14] At the end of September 2009, the deceased told his wife that he was “trapped”.

[15] I find that that the meaning of the statement he was “trapped” is unclear and as a result the probative value is low. I also find that whether the fact that the deceased told his wife that he was “trapped” is also not relevant.

[16] For this statement necessity has been made out, as Mr. El-Kassis is deceased.

[17] I also agree with the defence submission that the statements made by the deceased to his wife as to why he may have had an affair with Ms. Denis does not have the indicia of reliability for threshold liability. The probative value is low and the prejudicial effect is also relatively low but on balance I find the prejudicial effect exceeds the probative value and therefore, Statement #2 is not admissible.

Statement #9

[18] The statement by Mr. El-Kassis that he did not want the accused arrested because she had children is not relevant to the issues to be decided. The probative value is very low and the prejudicial effect is also very low. However, given the lack of relevance, I find that evidence is simply not relevant and as a result, Statement #9 is not admissible.

Statements #10 and #11

[19] On November 30 2009, Tony El-Kassis attended at the courthouse and made statements in his application for a s. 810 Peace Bond before the Justice of the Peace.

[20] The Preliminary Inquiry judge provided a useful summary of the evidence related to these statements as follows:

On November 30^th, 2009, Tony El-Kassis, accompanied by his wife Cecile El-Kassis, attended the Ottawa Courthouse to initiate proceedings to secure a peace bond against Rachelle Denis. Mr. and Mrs. El-Kassis met with Justice of the Peace, Louisette Girault. Mr. El-Kassis was given an information form outlining the nature of an 810 proceeding. The document gives a general overview of the section 810 process, including the fact that the subject of the application, Rachelle Denis, would receive notice of the application, and the fact that a restrain on her liberty was being sought in court. Mr. El-Kassis signed his name to the peace bond Information package under the words, “I have read and understand this document”. Mr. El-Kassis subsequently swore an Information to formally initiate the s. 810 proceeding.

The Information begins with the assertion that Mr. El-Kassis has reasonable grounds to fear, and does fear that Rachelle Joaquim, also known as Rachelle Denis, will cause personal injury to, or will damage the property of Tariq El-Kassis on account of a threat made between September, 2009, and the date sworn. The informant also stated that “between September, 2009, and now, she has been phoning and attending our house/business. She has threatened me and vandalized our chip wagon and trailer. She is acting irrationally and threatening our safety.”

The Information also indicated that Rachelle Joaquim is subject to a possible 12 month period of incarceration if she fails, or refuses to comply. It also indicates that the Informant “also says that he does not make this complaint with any malice, or ill-will, but merely for the fear set out [aforesaid] pursuant to the Criminal Code, section 810.”

The Information was sworn to by Tariq El-Kassis before a Justice of the Peace on November 30, 2009. The matter was then set for a hearing on December 17, 2009, in courtroom Number 5, at the courthouse at 161 Elgin Street, Ottawa. A summons was issued to compel the attendance of Rachelle Joaquim.

On December 17, 2009, Mr. El-Kassis attended court and stated on the record that he still wished to proceed with the matter. Rachelle Joaquim-Denis did not appear and a bench warrant was issued by the Court for her arrest.

[21] Justice Fraser held that on the basis of the evidence presented in the voir dire, that he was satisfied that the contents of the hearsay statement pertaining to the s. 810 information would not have changed significantly had Mr. El-Kassis been available to give evidence in person and be subjected to cross-examination; the statement was sufficiently reliable to be admitted into evidence in this proceeding.

[22] I agree with the reasons of Fraser J. The necessity requirement is made out as the deceased is not available to testify. Secondly, the Crown has satisfied me on a balance of probabilities that there is sufficient indicia of reliability that the statements are likely reliable because they were made under oath, and they were made at the courthouse before a Justice of the Peace, were recorded in writing and were signed by the deceased. As a result, the statements identified as #10 and #11 in the chart, concerning the Section 810 Peace Bond, are admissible.

Statements to Constable Jesty

Statements #12

[23] In Statements #12, the deceased advised Constable Jesty that “he was in trouble” and in Statement #13 he told him that he had an affair with Rachelle Denis and had told his wife about it. Statements #12 and #13 are introduced as evidence of the state of mind of the deceased at that time.

[24] With regard to statement #12, I find that some inference of the state of mind of Tony El-Kassis may be drawn from this statement. I find that the probative value of such evidence exceeds any prejudicial effect. Statement #12 is admitted as evidence of the state of mind of the deceased at that time.

Statement #13

[25] Statement #13 is corroborated by the evidence of the deceased’s wife, who will be available to be cross-examined that the deceased also told her that he had had an affair with Rachelle Denis in September of 2009.

[26] The evidence is circumstantial evidence which tends to show the state of mind of the deceased and is of limited prejudicial effect on the accused. The probative value of the evidence is not high but it exceeds the prejudicial effect is evidence showing the state of mind of the deceased. Statement #13 is admissible as evidence.

Statements #14

[27] Mr. Jesty contacted the Major Crime Unit on returning from a holiday approximately 10 days following the date of Tony’s death. He testified that he had a conversation with Tony at his chip wagon which may have taken place as much as two and half months before Tony’s death. In 2010, shortly after Tony’s death, Constable Jesty prepared his first statement, which was in excess of three months after the deceased made the statements to him. He testified that he recalled the gist of their discussion.

[28] The statements include an allegation that the accused was blackmailing him and that she was following him around and he was seeing her all over the place. The officer further testified that it was his understanding that the following and the threatening were occurring at that time in May of 2010. On further cross-examination, Constable Jesty stated: “I’m not sure what the timeframe was….I don’t know the timeframe or the frequency of these sightings or the emails or the calls….that type of thing.” The constable admitted in cross-examination that it was possible that the events that he was referring to may have occurred seven months earlier.

[29] I find that the statements in # 14 do not have sufficient indicia of threshold reliability be admitted under the principled exception to the hearsay rule. The officer has not made any notes contemporaneously with the statements, the statements were not verbatim statements of what the deceased said, and the constable was unaware whether the events complained of were occurring in May of 2010 or some seven months earlier.

[30] I further find that the probative value of Statement #14 does not exceed its prejudicial effect.

Statement #15

[31] In Statement #15, Constable Jesty stated that the deceased told him that he was scared of her and he wasn’t sure what she might do. Constable Jesty also observed that he “looked scared” to him.

[32] Constable Jesty’s observation that the deceased, Tony, “looked scared”, is circumstantial evidence of what he observed of how the deceased looked at that time. The statements made by the deceased that he was scared of her and that he wasn’t sure what she might do is evidence of the state of mind of the deceased at that time. The statements were made to a police officer and related to Tony El-Kassis’s state of mind at the time of the conversation. As a result, I find that the statements in item #15 meet threshold reliability test for evidence of the deceased’s state of mind at that time.

Statements to Constable Bruce Marshall

Statements #24 and #25 were made to Constable Bruce Marshall

[33] The defence does not object to these statements being admitted with the proviso that the evidence of Constable Marshall as he testified on Friday December 12, 2014, be admitted as well. In viva voce evidence, Constable Marshall stated that he attended the chip wagon after a call for service came from Mr. El-Kassis. Mr. El-Kassis informed Constable Marshall that he believed Ms. Denis had attended the area of his business in a grey sports utility vehicle with a Quebec licence plate FFK 62B2. Constable Marshall testified and agreed that he had no note and no memory as to whether he ran that licence plate in his police computer and was unaware if it could be tracked to Ms. Denis. The two vehicles known to be owned by Ms. Denis and her husband Robert Joaquim are a black Jeep Cherokee and a minivan.

[34] Statements #24 and #25 are admissible with the above provisos.

The Honourable Mr. Justice Robert J. Smith

Released: January 22, 2015

CITATION: R. v. Denis, 2015 ONSC 144

COURT FILE NO.: 10-1900

DATE: 2015/01/22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

Rachelle Denis

Respondent

decision oN ADMISSIBILITY OF statements of the Deceased,

Tarik “tony” El-kassis

R. Smith J.

Released: January 22, 2015