CITATION: R. v. Walker, 2015 ONSC 1717

COURT FILE: CRIMJ(P) 389/14

DATE: 2015 03 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. T. Brun, for the Crown

• and -

TRAVIS WALKER

S. Proudlove, for the Defence

HEARD: March 9 to 12, 2015

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

1Travis Walker pled not guilty to attempted murder and conspiracy to commit murder. The named complainant is Omarie Myers.

2At the conclusion of the prosecution case, the Crown consented to a directed verdict on the conspiracy count.

OVERVIEW

3Mr. Myers was shot six times on April 12, 2013. He survived his injuries.

4Over time, the complainant has been called upon, both during the investigative stage and in judicial proceedings, to describe the circumstances of the shooting and events in the month preceding that event. The statements include:

(1) April 17, 2013 - Sunnybrook Hospital

• “K.G.B.” Statement

• Transcript: Exhibit ‘D’

(2) April 23, 2013 - Sunnybrook Hospital

• K.G.B. Statement

• Transcript: Exhibit ‘E’

(3) April 26, 2013 - Sunnybrook Hospital

• K.G.B. Statement

• Transcript: Exhibit ‘F’

(4) May 13, 2014 - Preliminary Inquiry,

R. v. Travis Walker

• Transcript: Exhibit ‘A’

(5) September 10, 2014 - Trial, R. v. St. Louis and Potts

• Transcript: Exhibit ‘B’

(6) September 11, 2014 - Trial, R. v. St. Louis and Potts

• Transcript: Exhibit ‘C’

(7) March 10-11, 2015 - Trial, R. v. Travis Walker

5This was a one-witness trial – the complainant.

6During the complainant’s testimony, Crown counsel sought, and was granted, leave to cross-examine her own witness, pursuant to s. 9(2) of the Canada Evidence Act, upon prior statements (from May 13, September 10 and 11, 2014) inconsistent with his present in-chief testimony.

7Shortly put, the complainant did not experience refreshed memory nor did he adopt any of the relevant evidence from the prior judicial proceedings.

8At the conclusion of the complainant’s evidence, on behalf of the prosecution, Ms. Brun applied to have the excerpts of the complainant’s prior evidence read to him in this trial admitted for the truth of their contents, applying the principles generally reviewed in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

9The defence resisted substantive admission.

THE COMPLAINANT IS AFFIRMED

10When Mr. Myers was called to the witness box, he was asked by the Court Registrar whether he wished to swear on the Bible, some other Holy Book, or be affirmed. The complainant hesitated and mumbled, “It doesn’t matter.” After the Court indicated that it was his choice, Mr. Myers asked to be affirmed to tell the truth stating, “Be affirmed, I guess”.

THE COMPLAINANT’S IN-CHIEF EVIDENCE IN THIS TRIAL

11Mr. Myers testified in-chief for about 30 minutes before Ms. Brun brought her s. 9(2) Canada Evidence Act application.

12It is fair to say that in the preceding half hour Crown counsel met resistance in achieving any conventional flow of responsive answers from her witness.

13After leading on biographical material, Ms. Brun directed the witness to the April 12, 2013 date. Mr. Myers stated that on that date he was shot six or seven times – four times in the stomach, twice in the head and once in the leg.

14An agreed Statement of Fact records that Mr. Myers was shot six times – through the lower right leg, through the lower left abdomen, in the chest, in the buttocks, in the face exiting the rear of the skull, and in the back of the head. The complainant was under hospital care for six months.

15Additional information extracted from the witness in his initial in-chief testimony included the following:

(1) in April 2013, the complainant resided in Malton with his mother and three brothers

(2) their residence was located in the Goreway Drive and Brandongate Rd. area

(3) Mr. Myers was attending high school and working part-time

(4) in the days leading up to April 12, the complainant had possession of a handgun – he was unsure of the type or calibre (“a 9 something”) – perhaps black in colour – he does “not really” have knowledge of guns

(5) the witness was hazy as to when he came into possession of the firearm – probably a week before he was shot but the witness was unsure whether it was in April

(6) asked how he came to have possession of a handgun in April 2013, there was a lengthy pause before the witness stumbled through a response saying that it was a long time ago and that he could not really remember – Mr. Myers then stated that he thought his cousin came “to drop” the gun on him meaning that he left it at the complainant’s house

(7) the complainant has a cousin, Tristan Mullings – he was close to his cousin – he would see his cousin whenever he came over to “check” or see the complainant

(8) the gun was given to the complainant during the daytime by his cousin most likely in the complainant’s bedroom in his Malton home but the circumstances of its receipt are unclear

(9) Mullings showed the complainant the gun as they were chilling in the bedroom – the complainant has no recall of what his cousin said at this time – Mr. Myers handled the gun “analyzing it or something” – he had seen a firearm on one prior occasion when chilling with some of his friends

(10) asked where the gun was when Mullings left the house, Mr. Myers at first stated that his cousin had the gun – he then stated, “I’m not sure ….but he had it when he left” – the witness then reverted to saying he was unsure

(11) as to the complainant’s possession of the gun:

Q. Do you remember if at any point you had a gun in your bedroom without your cousin there?

A. I’m not sure.

(12) the complainant had not much memory of what was happening in his life from the time of seeing his cousin with the gun until he was shot

(13) asked how he came to be shot, the complainant stated that he was walking to the plaza during the day with Shaquille (also known as “Zero”) where he was supposed to meet a guy there, and then some guy came and “that’s when I got shot”

(14) he had not previously attended the plaza in Malton prior to being shot there on April 12, 2013 though it was walking distance from his home – the witness had no recall of the type of stores in the plaza or whether they were open on that date

(15) he was going to the plaza to do a “mission or something like that, something along those lines” – the mission, included robbing a guy of “a gun or something” – although Mr. Myers did not think the mission was his idea, he was unable to recall why he went on this mission – he could not recall where he was prior to going to the plaza

(16) all that the complainant could recall about his time at the plaza was that he went with Shaquille to meet “some guy” and, in the witness’ words, “next thing I know I was getting shot”

(17) the witness was unable to recall what happened after he was shot until he awoke in the hospital – Mr. Myers was unable to say whether he used his cellphone to call anyone from the plaza after being shot

(18) the complainant was hospitalized after being shot but was unable to recall the duration of his hospitalization

(19) he considers his health today to be “fine” – the effects of being shot in the head were described as a state of being one quarter permanently blind in both eyes.

THE CROWN’S S. 9(2) APPLICATION

16Once it was clearly apparent to Ms. Brun that her witness was not testifying in accordance with her expectations, given the prosecution opening and counsel’s familiarity with earlier statements of the complainant, she made an application to cross-examine Mr. Myers pursuant to s. 9(2) of the Canada Evidence Act.

17By this point, the complainant had generally refused to keep his voice up when answering questions despite being directed to speak more loudly. On seven occasions, in circumstances of professed lack of recall, the complainant had declined the opportunity to attempt to refresh his memory from prior statements. The evidence to this point was populated by expressions of “yeah” or lack of recall. There were mumbled responses and ambiguous responses.

18At various times, the complainant stated, “I’ll try my best … it’s not really coming back”, that the events were “years ago”, and that he tries not to think about the day he was shot.

19Leave to cross-examine was given to Crown counsel to cross-examine her witness without proof of adversity as contemplated by s. 9(2) of the Canada Evidence Act and within the boundaries described in R. v. Dayes, 2013 ONCA 614.

THE S. 9(2) CANADA EVIDENCE ACT CROSS-EXAMINATION

20On March 10, 2015, the complainant agreed that he testified under oath at Travis Walker’s preliminary inquiry on May 13, 2014. When asked the next day whether he was sworn at that proceeding, the witness answered, “I guess. I don’t know”. Questioned further as to whether he placed his hand on the Bible, he replied, “yes, if I can remember”.

21Asked whether, before he testified at the St. Louis/Potts trial in September 2014, he was sworn to tell the truth, the complainant answered, “I don’t remember. I don’t know. I guess if you have it written”.

22Asked if he understood that being in the witness box in a court proceeding was a serious matter, the witness responded, “I guess”.

23For over two hours, Crown counsel cross-examined the complainant upon about 45 excerpts of his prior evidence from the Walker preliminary inquiry and the St. Louis/Potts trial. St. Louis and Potts were acquitted in the latter proceeding. These transcript excerpts were all drawn from prosecution in-chief examination of Mr. Myers in those proceedings and not from cross-examination.

24With Ms. Brun asking at the conclusion of each Q. and A. excerpt from previous evidence whether Mr. Myers recalled being asked those questions and giving those answers, the witness uniformly denied any recall variously stating: “not really no”, “no”; “not to my recollection no”; “not that I remember no”; “no, I don’t remember”; “not to my knowledge no”; “no I don’t”; “to be honest, not really”. The complainant would not concede that his recall of the events of April 2013 would have been better in May 2014 than in this trial.

25The witness continued to drop his voice, pulled his hood up on his head, looked down and around without appearing to concentrate on what was being read to him, took almost no time to think before replying to the prosecutor’s questions and, at times, evidenced an irritation with Ms. Brun’s questions.

26Asked who the person referred to as “Breezy” in his prior evidence was, Mr. Myers initially did not respond. Ms. Brun repeated her question. The witness hesitated and stated, “I guess the guy in the box” referring to the accused.

27At various points, Mr. Myers expressed his view that because he was being questioned about matters “so long ago” he just could not remember – it was “years ago”. He informed the court that he does not wake up each day thinking about “that day”. The complainant flatly denied that his memory issues relate to fear of being labelled “a rat” or of getting into trouble with certain people he knew prior to being shot.

28Drawing upon the transcript excerpts of the complainant’s evidence from the May and September 2014 proceedings as read aloud to him during Ms. Brun’s s. 9(2) Canada Evidence Act cross-examination, the following facts were reported by Ms. Myers:

(1) a week or two prior to April 13, 2013, the complainant’s cousin, Tristan Mullings, left a handgun with him “to hold” – it was a .40 calibre Taurus semi-automatic firearm

(2) Mullings and the complainant were chilling in his bedroom – Mullings had the gun on his waist and then gave it to the complainant – when his cousin left, Mr. Myers hid the handgun underneath clothes in a clothes basket in his closet

(3) the complainant subsequently showed the gun to Tyrone Carty (“Pizzle”) and to “Breezy” (referring to Travis Walker) either separately or when they were together at his house chilling in his room

(4) prior to this point, Breezy had only been to the complainant’s house one or two times – they were not friends as, in Mr. Myers’ words, “I just kind of met him”

(5) Pizzle and Breezy were interested in buying the gun – “Like they wanted to go halves and what not, like with me” – Mr. Myers also described himself and Breezy going “halfsies” to purchase the firearm – the complainant said that he would need to speak to his cousin about that

(6) a $500 down payment was left with the complainant to give his cousin – “one of them” gave him the money – “I think it was Breezy” – on this date there was no other discussion about the final price for the gun – Mr. Myers has also testified that Breezy gave him the $500 the next day

(7) perhaps as soon as a couple of minutes after Pizzle and Breezy left, Mr. Myers telephoned his cousin to say he had a sale for him and $500 to give him – he did not identify the buyer(s) – Mullings said okay and that the firearm was to be sold for $2000

(8) a couple of days later, Mullings came to the complainant’s home – they chilled for a time without the identity of the purchasers being discussed – the $500 was given to Mullings before he left

(9) a couple of days later, Mullings returned and picked up the gun – Mr. Myers recalled saying to his cousin that he needed the money to go back because he didn’t want “no problems” and with respect to people getting their money back, he did not “want to get in no … issues or anything” – his cousin kept saying “don’t worry” as he would give the complainant the money to pay them – Mr. Myers never received the money back from his cousin

(10) when Breezy phoned a couple of times asking about the sale of the gun saying that if it wasn’t going ahead he wanted his money back, the complainant told him that his cousin was going to get him the money and as soon as he received it he would pay it over – he did not give Breezy his cousin’s name

(11) in a phonecall with Breezy on April 12, 2013, Breezy told him “never mind” and that he had a better plan and requested that Mr. Myers came to his home about 10 minutes away

(12) after walking over, Mr. Myers spoke to Breezy in his room in the basement of the Walker home – Gucci and Zero and T were there and Fat-Loc was outside – Breezy told him he was sending him on “a little mission” that day to meet and rob a guy of his gun which was to be returned to Breezy after which the $500 debt would be forgiven and he would “get out of the situation” – after meeting with Breezy, he left for the open part of the basement and Zero went into Breezy’s room to talk to Breezy

(13) the plan included Mr. Myers walking to the Rockhill Plaza with Zero – he was not armed but assumed that Zero was armed because they needed to be protected to pull off the robbery

(14) after a 10 to 20-minute walk that same evening to the plaza, during which there was no discussion between him and Zero, they arrived at the plaza – he was concerned as Zero was usually talkative – they stood in front of a convenience store – according to the complainant, “I wasn’t really thinking straight at the time”

(15) after a 5 to 10-minute wait, the complainant asked Zero to phone Breezy to find out where the guy was – Zero called Breezy on his cellphone

(16) two to ten minutes later, a guy arrived in a cream beige coloured BMW 3 series, perhaps a 2010 model, and parked on the opposite side of the street from the plaza – it was Fat-Loc – he came out of the driver’s door flashing a handgun and approached Mr. Myers and Zero who was standing next to him a foot away – the man spoke directly to Mr. Myers without really paying attention to Zero saying words to the effect of “…so like, you’re not going to take it” and, “here, take it, take it” while waving the gun and gesturing to him to try to take the gun

(17) the complainant recalls that he was then shot twice in the stomach at close range before he blacked out – he has no idea where Zero was at the point when he was shot

(18) when Mr. Myers regained consciousness he used his cellphone to call Tristan Mullings to say that he had been shot – he next called 911 – Zero was gone.

THE COMPLAINANT IS CROSS-EXAMINED

29With notice that the prosecution would be moving to have the evidence read to Mr. Myers on March 10, 2015 from the two earlier court proceedings admitted for the truth of its contents, Mr. Proudlove cross-examined the complainant on March 11, 2015 in the context of that application and at large.

30Without overly simplifying, defence counsel too encountered a witness who was vague and professing lack of recall. Mr. Myers’ attitude and demeanour in the witness box remained essentially unchanged from the day before, although there were times when he used a more aggressive stance in responding to defence counsel’s questions, for example: “…as I told you…”; “why would you ask, if you’re going to do it, do it”; “whatever answer you’re looking for you’re not going to get it”; “I don’t know what you want me to tell you”; “I don’t even know where that question came from”; “where are you going with that?”; “you can suggest whatever you want”.

31Mr. Myers testified that he does not think about April 12, 2013 every day, and provided these similar views: he cannot “dwell on the past”; he “choose[s] not to remember”; “I try to forget it”; he does not want to be in court; he “look[s] to move on, to go forward”; and “I refuse to think about what happened to me in April 2013”. As well, when the complainant was asked by Mr. Proudlove to relate what he could recall of his life in the first two weeks of April 2013, he responded that “that person is dead, I’m a new person”. The witness confirmed that his head injuries arising from the shooting have not affected his memory but that he simply has an inability to recall – he is not refusing to provide information. The witness also maintained that he was not “covering” for anybody.

32Mr. Myers was cross-examined about his stay at Sunnybrook Hospital. He doubts he had a clear state of mind after waking up in the hospital. He has no recall of speaking to the police in the hospital, although he thinks he “probably” did. He has no recall of what he might have said. When the complainant was shown and asked to identify a Peel Regional Police Service document entitled “K.G.B. Warning”, dated April 26, 2013 and commissioned by a Commissioner for taking oaths and affidavits, he glanced at the paper and within two seconds asked, “No what does it state?” Asked if he wanted to read the document, Mr. Myers replied, “No” although he was prepared to concede that it looked like his signature on the document. The witness professed to have no recall of ever reading or signing the document.

33In his evidence, Mr. Myers agreed that he was never charged with respect to the April 2013 transaction of gun trafficking – nor were Mullings or Carty (“Pizzle”).

34Mr. Myers conceded that if, in this trial, he changed the story given to the police during their investigation, he could be in trouble.

35The complainant was asked whether he recalled giving a videotaped statement to the police on April 17, 2013 when in the hospital. He was unable to say one way or the other whether that occurred. Asked if it would assist to refresh his memory if given an opportunity to view the video, the witness stated, “No, it’s okay. I don’t know”. When the question was repeated, the witness stated, “not really, I doubt it”, and then expressed the view that it probably would and it probably wouldn’t. When Mr. Proudlove provided the complainant the 53-page transcript of the April 17 interview, Mr. Myers examined only the first two pages and after about 15 seconds stated that it did “not really” refresh his memory and that he was not a good reader. He pushed the transcript away saying, “take it back”.

36Mr. Myers gave a second videotaped statement to the police on April 23, 2013 again at the hospital. Defence counsel asked the complainant to take his time and look at the 39-page transcript of that interview to see if he could recall the conversation. Mr. Myers only looked at the first page and, within 18 seconds, stated, “I don’t really recall”.

37Mr. Proudlove repeated the process of attempting to refresh memory using the 63-page transcript of the April 26, 2013 video interview in the hospital. Again, in the witness box, examining only the first page, and yawning, within 24 seconds the witness stated, “not really” which he further defined to mean “I don’t recall”.

38When defence counsel presented the 59-page preliminary inquiry transcript of the May 13, 2014 proceeding, asking the witness to “read as much as is necessary to be able to say” whether that was the evidence he had previously given, after only 3 seconds with the transcript, the witness stated, “I can’t read this whole thing”. When counsel opened the transcript to page 9 and handed the transcript back to Mr. Myers, within a 35-second period, the witness appeared to read that page, looked briefly only at page 10, and handed the document back stating that he had “no” recall of giving that evidence. The witness subsequently added that he did “not really” have a recall of giving evidence on May 13, 2014.

39Asked if he was making efforts to tell the truth six months ago in the St. Louis/Potts trial, the complainant stated, “I guess so”. When questioned as to how he could relate facts about April 2013 in that September 2014 trial, Mr. Myers stated that he had no recall of being able to relate facts about the shooting in that trial.

40During Mr. Proudlove’s additional cross-examination on March 11, 2015, this evidence was given:

(1) Mr. Myers could not really recall being shot on April 12, 2013

(2) he had no recall of hearing some of his prior evidence read to him by Crown counsel on March 10, 2015 regarding him being the middleman in the sale of a firearm between Tristan Mullings and Breezy

(3) the complainant had no recall of being involved in a negotiation in April 2013 relating to a firearm or of $500 as part of such a sale

(4) again asked if he was engaged in selling a gun in April 2013, Mr. Myers provided various responses which he summed up as “I’m not sure”

(5) asked how many persons he has known named Breezy, the witness did not answer – when the question was re-asked, the complainant answered, “probably, a couple” adding that he does not really socialize

(6) the complainant does not really know much about firearms and is unable to describe the gun used by the shooter at the plaza

(7) the complainant had no recall of telephoning Mullings or 911 from the plaza after he was shot.

POSITIONS OF THE PARTIES

The Crown

41With the necessity issue conceded by the defence, Ms. Brun’s admissibility submissions focused upon reliability of the complainant’s evidence from 2014. Counsel submitted that the modest threshold reliability standard was met in all the circumstances.

42Crown Counsel’s submissions included the following:

(1) the May and September 2014 evidence was recorded and certified in the transcripts entered as Exhibits A to C

(2) the prior testimony of Mr. Myers was given under oath

(3) the testimony was taken in a courtroom in criminal cases with serious charges

(4) while there was really no meaningful cross-examination of Mr. Myers in the present trial because of the witness’ professed lack of memory, the accused had the opportunity to cross-examine the complainant at his May 2014 preliminary inquiry

(5) although the accused did not have the opportunity to cross-examine Myers in the September 2014 trial, the witness was cross-examined at that proceeding

(6) in terms of demeanour, the trier of fact observed the complainant testifying in this case and by comparison to the relevant transcript excerpts from the 2014 proceedings it is clear that the witness was more cooperative on those occasions apparently having more meaning for him

(7) there was no suggestion from Mr. Myers in this trial that he was not speaking the truth in the 2014 proceedings

(8) the interests of justice favour substantive admission of the 2014 statements with the probative value of that evidence outweighing any prejudicial value associated with its admission.

43Assuming the relevant excerpts of Mr. Myers’ 2014 evidence were admitted for the truth of their contents, it was submitted by the Crown that the accused’s guilt has been established beyond a reasonable doubt.

44In what little evidence was freely given by the complainant before the s. 9(2) Canada Evidence Act application, Mr. Myers acknowledged receiving a firearm from his cousin, Tristan Mullings, in April 2013. He received the firearm in the bedroom of his house. On April 12, 2013, he went on a mission to a plaza with Shaquille Potts (Zero) to do a robbery. He had his cellphone with him. The mission was not his idea. At the plaza, a guy shot him. These points, while wanting in detail, and leaving out the identity of various parties, are important because they have corresponding linkage to the 2014 evidence of the complainant.

45At this trial, Mr. Myers identified Travis Walker as the “Breezy” referred to in the 2014 court proceedings.

46Ms. Brun reviewed much of the evidence summarized at para. 28 above in arguing that the consistent evidence between the two 2014 court proceedings, together with the minimal evidence from the complainant in the present proceeding including identification of a photo of the scene where he was shot, persuasively establishes, on a circumstantial basis and consistent with Mr. Myers’ subjective impression of what transpired, that when he failed to return the $500 downpayment for the Taurus handgun, the accused marched him off to a set-up where he would be shot. The complainant was given few details of the mission and the unusually non-communicative Zero was assigned by the accused to ensure that he went to the plaza.

47Quite fairly, Crown counsel conceded that inconsistencies exist across the various statements of Mr. Myers. It was argued that the inconsistencies were not sufficiently significant to call into question the essential framework or fundamental elements of Mr. Myers’ core account of what transpired. Counsel asked the court to consider the possible reasons for this state of affairs. For example, many of the discrepancies only relate to the timing of certain events, and, with the passage of time memories quite naturally fade. In addition, while there is no medical evidence on the point, given the number of times the complainant was shot, the location of his injuries and the duration of his hospitalization, it would be expected that in the days immediately following the shooting, when the K.G.B. statements were taken, that Mr. Myers would not be in a normal state.

The Defence

48On behalf of the accused, Mr. Proudlove submitted that the prosecution failed, on a balance of probabilities, to establish threshold reliability in the 2014 evidence of Mr. Myers. Counsel drew the court’s attention to these factors:

(1) the complainant’s attitude toward promising to tell the truth and the solemnity and seriousness of court proceedings is informed in part by the performance of defiant disrespect he exhibited in this trial in terms of his demeanour and his way of answering questions, in particular his dishonest use of lack of memory to avoid responding to questions

(2) at the September 2014 trial, the accused was not a party and had no opportunity to cross-examine Myers – it cannot be said that there were common interests between this accused and the accused in that trial

(3) as to the complainant’s demeanour when testifying in the 2014 proceedings, the trier of fact in this trial cannot adequately determine the declarant’s demeanour on those occasions from the printed words of the transcripts

(4) there is no evidence corroborative of the complainant’s 2014 evidence

(5) aspects of Mr. Myers’ account in the 2014 proceedings do not make sense, and are internally inconsistent, and on at least some material points are inconsistent with his original K.G.B. statements given to the police shortly after the shooting.

49Mr. Proudlove submitted that, even if the court ruled the 2014 evidence to be substantively admissible, the court simply cannot rely upon the credibility of the complainant to conclude that guilt has been established beyond a reasonable doubt.

50Counsel noted the limits for the trier of fact in this case relying on evidence given by the complainant in other proceedings – for example, the witness’ demeanour while testifying in those cases could not be assessed here. Counsel also pointed to the witness’ understanding that he could be in trouble if he changed his story previously given, the “performance” put on by Mr. Myers in this trial of general disrespect for court proceedings, and certain differences between the May and September 2014 accounts.

51It is said that the complainant was involved in firearms trafficking. There is no corroboration at all for his previously given version of events. There cannot be the trust necessary in Myers to confidently find ultimate reliability.

52Mr. Proudlove further submitted that the prosecution theory based on Mr. Myers’ perception that he may have been setup by the accused is not the only reasonable interpretation of events at the plaza where the shooting occurred on April 12, 2013. For example, there may well have been a mission to get a gun to clear the $500 debt which ended up as a robbery gone bad. Killing Myers would result in the accused not receiving a gun or the return of his $500.

ANALYSIS

53It was not disputed that Mr. Myers’ 2014 statements had logical relevance in terms of the prosecution’s discharge of proof respecting the charges before the court. In substance, those statements identified transactions and individuals and locations circumstantially supportive of the Crown theory that the accused had a motive for the alleged crimes and acted on that motive.

54Mr. Myers’ prior out-of-court statements, in the sense of statements not made or adopted in this trial, are hearsay and therefore presumptively inadmissible for the truth of their contents. That said, because the extent to which hearsay evidence presents difficulties in assessing its worth varies with the context, there will be cases where such evidence presents only minimal dangers relating to perception, memory, narration or sincerity. Put shortly, hearsay evidence may be admitted where the proponent demonstrates, on balance, necessity for receipt of the evidence and threshold reliability of the declarant’s prior statements.

55A flexible and principled approach to the admission of hearsay evidence looks, on a case-by-case basis, to the existence of circumstantial guarantees of trustworthiness. Two principal ways of satisfying the threshold reliability requirement are:

(1) whether the circumstances of the making of the prior statement themselves lead to no real concern about whether the statement is true or not

(2) in the circumstances of the current proceeding, the hearsay statement can nonetheless be sufficiently tested.

Khelawon, at paras. 61-63; R. v. Kanagalingam, 2014 ONCA 727, at para. 31.

56The optimal and preferred way of testing evidence, “a tried and true method,” “is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination”: Khelawon, at para. 63. Case-specific substitutes for these features may prove adequate to meet the threshold admissibility standard. In addition, a consideration of all relevant factors includes the presence of extrinsic supporting evidence for the accuracy of the hearsay statement: Khelawon, at paras. 4, 54, 94-100. In this way, Khelawon advocates a holistic approach to the question of threshold admissibility: R. v. Hamilton et al (2011), 2011 ONCA 399, 271 C.C.C. (3d) 208 (Ont. C.A.), at paras. 138, 144 (leave to appeal refused: [2012] S.C.C.A. No. 166 (Davis), [2012] S.C.C.A. No. 151 (Schloss), [2012] S.C.C.A. No. 46 (Reid), [2011] S.C.C.A. No. 547 (Hamilton)).

57Turning first to the issue of contemporaneous cross-examination, the most important of the hearsay dangers where absent, although the accused here exercised the opportunity to cross-examine Myers in the May 2014 preliminary inquiry, he had no opportunity at all to cross-examine the declarant in the St. Louis/Potts trial as he was not a party to that proceeding. It cannot be said that this accused’s interests were sufficiently common with those accused persons in terms of the cross-examinations conducted in September 2014. The lack of opportunity for contemporaneous cross-examination in these circumstances can be an important factor: Khelawon, at para. 91 (“subject to contemporaneous cross-examination in a hearing involving the same parties …”(emphasis added)).

58What has come to be known as admission of a K.G.B. statement (1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740), speaks to the presence of adequate substitutes for the traditional safeguards relied upon to test evidence – in that case, videotaped statements by a declarant available at trial for cross-examination upon his prior and current versions of relevant events.

59Counsel were in agreement that the necessity criterion was met on the record here given that Mr. Myers’ professed lack of recall dominated his trial testimony to the point of equation to an absent witness. In effect, the conduct of the witness deprived the trier of fact of critical evidence regarding the relevant transaction and related circumstances.

60In the present case, the prosecution sought to achieve threshold admission of the declarant’s 2014 evidence by pointing to adequate substitutes for traditional safeguards including reliance upon the hearsay statements having been made in a courtroom in the context of judicial proceedings involving serious charges.

61The adequacy of the substitute for contemporaneous cross-examination served by cross-examination of an available declarant in a current trial is generally premised on the existence of a comparable opportunity for the trier of fact in the sense of cross-examination in the current trial upon the prior statement and the newly-delivered account. The trier of fact hears and evaluates the conflicting evidence and explanations for changing testimony. The relative strength of this cross-examination substituting for contemporaneous cross-examination upon both statements is very much diminished, if not entirely defeated where, as here, the declarant does not provide a time-present version through professed lack of recall of relevant events. In R. v. Conway (1997), 1997 CanLII 2726 (ON CA), 121 C.C.C. (3d) 397 (Ont. C.A.), at paras. 27-31, 33-35, the court observed:

In KGB, Chief Justice Lamer confirmed that the lack of contemporaneous cross-examination is the most important of the hearsay dangers (p. 293). He noted that it is also the most easily remedied by the opportunity to cross-examine at trial.

And on the same issue, in U.(F.J.)… [(1995), 1995 CanLII 74 (SCC), 101 C.C.C. (3d) 97 (S.C.C.)] … Chief Justice Lamer put it this way:

When a witness takes the stand at a trial and, under oath, gives a different version of the story than one previously recorded, doubt is cast on the credibility of the witness and on the truth of both versions of the story. This is what effective cross-examiners hope to achieve.

This case is different. There are not two versions. Jardine did not give a different account at trial. There is the statement of December 11, 1994 and the statement at trial “I don’t remember.” How does cross-examination of the witness at trial afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement when the evidence of the witness at trial is “I don’t remember”? Cross-examination becomes, to a large extent, an exercise in futility and does not serve as a substitute for contemporaneous cross-examination on the prior statement, as it does in most cases.

In these circumstances, it would stand to reason that the other indicia of reliability would take on more importance. I refer to the words of the Chief Justice in KGB, at p. 294:

Given the other guarantees of trustworthiness, I do not think that [the lack of contemporaneous cross-examination] should be allowed to be a barrier to substantive admissibility.

In a case such as the present one, where the other guarantees of trustworthiness are absent and an effective cross-examination was seriously curtailed, the barrier to admissibility has to be far greater. In U.(F.J.), the Chief Justice stated that a recanting declarant’s availability for cross-examination goes “part of the way to ensuring that the reliability criterion for admissibility is met” (p. 114). This is premised on the notion that an assessment of the “comparative reliability” of the statements assists in the process of determining whether the prior inconsistent statement ought to be admitted. The nature of the recantation, however, may limit the effectiveness of the cross-examination on the previous statement (KGB, at p. 300). In the present circumstances, the cross-examination was rendered virtually ineffectual by the witness’ testimony that he did not remember having made the inculpatory assertions recorded in the statement of December 11. Certainly, such a fruitless cross-examination does little to ensure that the reliability criterion for admissibility is met.

… recantations [do not] necessarily lead to a conclusion that the prior inconsistent statement is inadmissible for the truth of its contents. Rather, it must be the case that other indicia of reliability are required to support a finding that the statement is admissible.

Where these factors are absent, it is important to recall that the Chief Justice stated, categorically, that:

I also, however, indicated that in certain particular circumstances a prior inconsistent statement could be admitted even in the absence of an oath and video record, although not in the absence of cross-examination (at p. 116).

In this case, the futility of the cross-examination is not compensated for by the other indicia prescribed by KGB or their respective substitutes and, therefore, is of little assistance in establishing the reliability of the prior inconsistent statement.

See also R. v. Duong (2007), 2007 ONCA 68, 217 C.C.C. (3d) 143 (Ont. C.A.), at paras 57-58.

62Undoubtedly the right of the defence to cross-examine witnesses for the prosecution is fundamental to the adversarial system of justice: Duong, at para. 22. Although the absence of an opportunity for real cross-examination of a declarant in a criminal trial is a significant factor impacting upon the issue of hearsay admissibility, “there is no general rule that a hearsay statement cannot be admitted in the absence of an opportunity to meaningfully cross-examine a declarant”: R. v. P.G., 2011 ONCA 50, at para. 5.

63As to the consideration of the existence of a surrogate for presence, in the sense of the trier of fact being on-scene at the time that the hearsay utterance was made, that is best achieved by a videotape of the making of the prior statement made available to the trier of fact in the current trial: see K.G.B., at paras. 97-100; R. v. Youvarajah, 2013 SCC 41, at paras. 9, 12, 29, 54, 70. In such circumstances, the trier is essentially put in the position of the hearsay declarant brought before the court to be observed as he or she makes the prior statement.

64Mr. Myers, as an available witness in this trial, was of course available to be observed as he testified in March 2015. However, the significant evidence for the prosecution lies in the 2014 hearsay statements with their inclusion of greater detail. In the present case, there is no opportunity for the trier of fact to see Myers making the May and September 2014 statements. With audiotapes of those proceedings also not introduced, the trier is left only with the printed words of transcripts which afford no real opportunity for demeanour assessment insofar as that would impact on credibility and reliability determinations of the hearsay evidence.

65The prosecution placed particular emphasis on the solemnity of court proceedings involving the prosecution of serious criminal charges as a factor bringing home to a witness declarant the importance of telling the truth: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at paras. 76-81; Khelawon, at para. 91; R. v. Clarke (1994), 1994 CanLII 1314 (ON CA), 95 C.C.C. (3d) 275 (Ont. C.A.), at para. 1 (leave to appeal refused [1995] S.C.C.A. No. 79). This is integrally linked to the fact that a witness in a prior judicial proceeding would be under oath or affirmation to tell the truth.

66This factor again requires consideration of all relevant circumstances including:

(1) while Mr. Myers was sworn to tell the truth in the May and September 2014 proceedings, when asked in this trial whether he wished to swear on the Bible or another Holy Book or be affirmed, he responded: “It doesn’t matter”

(2) the declarant elected to be affirmed in this case less than a year after being sworn in the two prior proceedings with no explanation in the record as to why the oath was not again taken

(3) questioned in this trial as to whether he was sworn to tell the truth at the May 2014 preliminary inquiry, the complainant variously replied that he had been and that he did not know

(4) in the current trial for serious criminal allegations, Mr. Myers’ adherence to his solemn affirmation, as described more particularly below, effectively involved a contemptuous assault upon the trial process and any conscientious obligation to tell the truth

(5) the importance to Mr. Myers of not misleading the court in serious judicial proceedings is far from clear.

67With Mr. Myers as the sole prosecution witness in this trial, there is no corroborative evidence to assist in evaluating the reliability of his 2014 statements.

68It is, of course, well recognized that a full menu of the usual substitute factors need not be present for substantive admission of hearsay evidence in a trial especially where the dangers of receipt of the evidence are compensated for by certain compelling circumstantial guarantees of reliability which do exist in a particular case.

69In summary, in the present case:

(1) the accused exercised his opportunity to cross-examine the declarant in the May 2014 preliminary inquiry

(2) the accused had no contemporaneous opportunity to cross-examine the declarant at the September 2014 trial

(3) the accused had no full and complete opportunity to cross-examine Mr. Myers in this trial as the declarant deliberately obstructed the process by withholding production of a time-present articulation of facts for comparison with the prior statements

(4) the trier of fact in this trial is denied any meaningful opportunity to assess the declarant’s demeanour on the occasions of giving his 2014 statements

(5) the meaning and significance of the oath, and respect of the declarant for the importance of judicial proceedings, generally, is doubtful

(6) the text of the 45 in-chief excerpts of evidence of Mr. Myers from 2014 are liberally punctuated with responses of lack of recall, equivocation and some inconsistencies

(7) there is no confirmatory evidence for the contents of the declarant’s 2014 statements or other external circumstance promoting a degree of trust for those statements.

70The court has a discretion to refuse to allow substantive use of a hearsay statement even when the proponent of substantive admissibility for the evidence has established sufficient substitutes for the missing traditional safeguards against hearsay dangers although this is likely to be of greater importance in a jury case: K.G.B., at para. 115; Kanagalingam, at paras. 35-6. The overarching discretion of the court to assess the balance of the probative value of the subject evidence against its prejudicial effect if given substantive admission is again a case-sensitive determination.

71The probative value of particular evidence depends on the context in which it is proffered (R. v. Araya, 2015 SCC 11, at para. 31), and the prejudice which is of concern to the admissibility issue is not the strengthening of the case against an accused but rather the impact upon the fairness of the trial process and an accused’s exercise of full answer and defence: Hawkins, at para. 93.

72In the present case, without conflating the legal test for admissibility with the trier of fact’s task of ultimate reliability assessment, a consideration of the totality of circumstances and relevant factors brings me to the conclusion that, by the narrowest of margins, the prosecution has met its burden of establishing, on a balance of probabilities, threshold reliability of the declarant’s 2014 statements sufficient for substantive admissibility.

73That said, this particular evidence, admitted for the truth of its contents, cannot stand on entirely the same footing as non-hearsay evidence when it comes to the question of assessment of ultimate reliability. We know that “[a] lot of courtroom testimony proves to be totally unreliable”: Khelawon, at para. 80. Seeing a witness fully and completely cross-examined under oath/affirmation best achieves discovery of any flaws, deficiencies and deception in the witness’ testimony. Where, as here, surrogates stand in for these features of the adversarial process, caution is warranted in assessing the issues of weight and ultimate reliability of the hearsay evidence admitted for the truth of its contents: K.G.B, at paras. 120, 189.

74A number of factors relevant to the making of the 2014 statements remain important for the trier of fact, including limitations as to the absence of presence, concerns about the declarant’s commitment to the oath and respect for judicial proceedings, the absence of any cross-examination opportunity respecting the September 2014 statements, issues of lack of recall and equivocation and inconsistency within the 2014 testimony, and the general absence of any current evidence from the declarant as to the relevant facts.

75It is not possible to assess why Mr. Myers conducted himself as he did in this trial. He has his own motive(s). There is no evidence of organic brain injury from the shooting injuries or otherwise to explain his submitted lack of recall. The witness’ assertions that his memory of the events of April 2013 would not have been better in May 2014 than in March 2015, and his assertion of having forgotten what he said six months ago in the St. Louis/Potts trial, defy common sense. In this trial, Mr. Myers unequivocally rejected suggestions that his inability to recall was prompted by a refusal to give evidence, fear of anyone or covering for anyone else.

76Omarie Myers has at times been referred to in these reasons as the “complainant”. That label, given the witness’ evidence here, has limited meaning. However, Ms. Brun was of course compelled to take her witness as she came to find him in this trial.

77Both counsel were clear in their view that the complainant’s assertion of his natural loss of memory was contrived – a view readily shared by the court. Considering the uniqueness of an incident of being shot, the fact that the incident was less than two years ago, the relevant judicial proceedings being within the last year, and the witness’ demeanour and attitude as he testified here, the witness, quite transparently, was perjuring himself.

78In many cases of recanting or uncooperative witnesses in a criminal trial, a trier’s mind turns to consideration that the witness is intimidated or fearful of others should he inculpate someone respecting the charges before the court. That inference would be speculative in this case. Apart from Mr. Myer’s own rejection of that suggestion, there is simply no evidence to support this as the cause of the witness intentionally, for hours on end, lying to this court about his ability to recall relevant matters. There is no cogent evidence of external threats to the witness to keep him from testifying truthfully. The accused was seated calmly in the prisoner’s box. There were no persons seated in the public area of the courtroom who could in any sense be associated with an intimidating or menacing presence. Close scrutiny of Mr. Myers himself, from my vantage point about six feet from the witness, gave no indication that he was nervous, shaky or frightened. Indeed, as stated, he involved himself from time to time in aggressive exchanges with both counsel.

79Mr. Myers, I am satisfied, also misled the court when he stated that he was not involved in firearm trafficking in April 2013. He has never been charged respecting such conduct and might well be said to have self-interest in exposing others to suspicion of criminal conduct. In addition, the witness was conscious that, since the shooting, it is very much in his interests not to change his story from the time of giving his K.G.B. statements in April 2013.

80For these reasons expressed in paras. 69, 74 to 79 above, and having in mind the absence of any supporting evidence for the complainant’s 2014 statements, as very modestly supplemented by his testimony in this trial, it is difficult to acquire the confidence consistent with proof beyond a reasonable doubt on the trial record here.

81In addition, and in any event, the position of the prosecution that the evidence establishes the accused to have been criminally liable for the attempted murder of Omarie Myers is not the only rational inference to be drawn from the facts. That is, of course, the after-the-fact perception of Mr. Myers related in 2014.

82There is no suggestion that the accused went to the plaza and shot Omarie Myers. There is no direct evidence that the accused instructed anyone else to kill the complainant. There is no direct evidence of the accused planning, with others, Myers’ execution. This court does not have the benefit of evidence, for what it might be worth, from others such as Potts, Carty or Mullings.

83The scenario of a set-up of Mr. Myers to be murdered at the plaza has circumstantial support in the evidence including:

(1) Myers’ receipt of a $500 down payment from the accused for the purchase of a handgun with a $2,000 asking price

(2) Myers’ failure to close the deal by returning the deposit or making the firearm available for completion of the sale transaction

(3) Myers’ unfulfilled promises in phonecalls with the accused to return the $500 once received back from his cousin, the gun’s owner – a person not identified by name to the accused

(4) an unexpected alternative to repaying the deposit money suggested by the accused – a mission to occur shortly after the accused communicated the plan to Myers which would erase his debt

(5) the lack of detail provided to Mr. Myers by the accused as to the guy at the plaza who was to be robbed of a gun to be brought back to the accused, and the lack of Myers being armed by the accused to commit the robbery

(6) the role of Zero as the accused’s person to get Myers to the scene where he would be shot – separate instructions to Zero in the basement, Zero untalkative on way to plaza, shooter unconcerned with Zero, Zero fleeing the scene, etc.

(7) a shooter exiting his car, instantly flashing his handgun, taunting Myers and then shooting him six times including twice in the head.

84But does the evidence exclude other reasonable inferences also grounded in the evidence? For example:

(1) the accused wanted his $500 down payment returned

(2) though promised, the deposit was not returned by Mr. Myers

(3) with Myers apparently struggling to get the required money from his cousin, the accused could in effect get a handgun instead of the $500 by suggesting to Myers a robbery at a nearby plaza of someone the accused knew would be there at a particular time

(4) Zero was in on the plan, likely armed, to ensure that the robbery was successfully completed

(5) the intended victim of the robbery was tipped off, not by the accused, and rather than not attending the plaza, exacted violence against Mr. Myers by shooting him at the plaza without Zero taking the chance of being involved in a gun-fight

(6) the complainant holds the accused responsible for him being shot.

85It may well be that this scenario is a less reasonable or compelling interpretation of events but it cannot, as a rational conclusion or inference based on the whole of the evidence, easily be eliminated in the assessment as to whether a reasonable doubt exists. While Crown counsel acknowledged that both scenarios were equally possible, it was submitted that Myers’ evidence of a setup should be preferred. The Crown’s theory has its own limitations. The $500-debt, not an enormous sum, had been outstanding for a few days only and, on Mr. Myers’ evidence, while the accused had phoned a couple of times about repayment, he had not threatened him, made a physical re-attendance at his house to collect the money or its equivalent, or demanded Myers’ cousin’s name. Does it make sense that in these circumstances the accused would suddenly, without any of these intervening steps, adopt the disproportionate response of luring Myers into an ambush so that he could be executed with the result that the accused would not secure either $500 or a gun? Perhaps. But perhaps not.

86There may well be other reasonable interpretations of the circumstances, beyond those discussed, as suggested by Mr. Proudlove. Does it make sense that the complainant would go unarmed to a robbery? Can it be confidently accepted as to what motive(s) or reason(s) Mr. Myers may have had to implicate the accused as he did in the 2014 proceedings?

CONCLUSION

87On the entirety of the evidence, it cannot safely be concluded beyond a reasonable doubt that the accused is liable for the attempted murder of Omarie Myers.

88The accused is found not guilty of the attempted murder charge.

Hill J.