R. v. Burnett, 2015 ONSC 2282

COURT FILE NO.: 14-7-0000132-0000

DATE: 20150508

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW BURNETT and JERAMY HENRY

Defendants

Joanne Capozzi and Neville Golwalla, for the Crown

Sean Robichaud and Chantelle Lafitte, for the Defendant Andrew Burnett

Jaki Freeman, for the Defendant Jeramy Henry

HEARD: January 6, 9, 26, 27, 28, 30 and February 2, 2015

MOLLOY j.:

REASONS FOR DECISION

(Ruling re Hearsay Statements)

A. INTRODUCTION

[1] Andrew Burnett and Jeramy Henry were charged with first degree murder in the shooting death of Cory Marcus Campbell on September 8, 2012. Mr. Burnett acknowledged that he shot Mr. Campbell, causing his death. His defence at trial was that he acted in self-defence. The shooting occurred just outside the elevators on the fifth floor of an apartment building at 11 Main St. in Toronto. Mere moments before the shooting, four persons entered the elevator from the lobby: the deceased, Cory Campbell; the two accused, Mr. Burnett and Mr. Henry; and Mr. Campbell’s girlfriend, Jayna Badger, whose apartment was on the fifth floor. Ms Badger was an eye-witness to the shooting. Immediately after the shooting, both Mr. Burnett and Mr. Henry fled the scene. Jayna Badger called 911 and stayed with Mr. Campbell until help arrived. However, he had been shot in the heart and died within minutes.

[2] At the outset of trial, the Crown’s theory was that the killing of Mr. Campbell was both planned and deliberate and that this scheme involved Mr. Burnett and Mr. Henry. To establish planning and deliberation, the Crown relied in part on an alleged threat made by Mr. Burnett against Mr. Campbell in a telephone conversation about 75 minutes before the shooting. Only Mr. Burnett and Mr. Campbell were privy to that telephone conversation. Since Mr. Campbell is now deceased and unable to testify, the Crown sought to prove the threat by introducing statements made by Mr. Campbell to five witnesses: Jayna Badger; Troy Jeannis; Juaneta Gooden; Natasha Lucas; and the deceased’s father, Michael Campbell. All of these witnesses could testify to statements made by Cory Campbell within an hour of when he was shot by Mr. Burnett. Four of these witnesses (all except Michael Campbell) were present in Apt. 412 for about one hour up to just a few minutes before the shooting.

[3] The Crown also proposed to introduce evidence of the turbulent relationship between Mr. Campbell and his girlfriend, Jayna Badger, through cellphone records of text messages between them, the evidence of Ms Gooden and Mr. Jeannis, who had known both Ms Badger and Mr. Campbell for some time, and the evidence of the witnesses who were in Apt. 412 that night and heard the arguments between Ms Badger and Mr. Campbell.

[4] Initially, Jayna Badger was expected to testify at trial. She was under subpoena and had promised to attend. She lived outside Toronto but transportation was arranged for her to arrive in Toronto on January 5, 2015. There was some concern about whether Ms Badger would voluntarily provide meaningful evidence at trial. At the preliminary hearing in 2013, she testified that she was suffering from post-traumatic stress disorder and could no longer remember anything at all about the incidents that occurred on September 8, 2012. She claimed she was receiving ongoing treatment for this condition, but subsequent police investigation showed this to be untrue. In anticipation of the possibility that Ms Badger might adopt the same position at trial, the Crown delivered motion materials to admit as evidence Ms Badger’s prior statements to police. However, that application was held in abeyance to see what Ms Badger would actually do.

[5] What Ms Badger did was flee the country. She simply failed to arrive as promised on January 5 and failed to return phone calls and emails from the police officer who had previously been in contact with her. The trial was adjourned for two weeks so that efforts could be made to find her. Follow-up police investigation showed that on December 30, 2014, Jayna Badger terminated the lease on her apartment, cancelled her cellphone contract, and crossed the border into the United States with her two children. Ms Badger’s mother did the same thing, crossing the border at the same crossing and on the same day as Ms Badger, with three passengers, believed to be her grandchildren, in her car. Although a material witness warrant was issued for Ms Badger, Crown advised that it could not be enforced in the United States.

[6] The Crown therefore brought an amended application to admit as evidence at trial Ms Badger’s prior statements to the police as well as her evidence at the preliminary hearing.

[7] Both defendants objected to the admissibility of any statements made by Ms Badger, both with respect to the utterances of Cory Campbell shortly before his death and any other statements she had given to police. Mr. Robichaud, on behalf of Mr. Burnett, did not object to the admissibility of the statements made by Mr. Campbell through the viva voce testimony of Mr. Jeannis, Ms Gooden, Ms Lucas, and Mr. Michael Campbell. Ms Freeman, on behalf of Mr. Henry, conceded the admissibility of some of the statements made by Mr. Campbell, including: that he wanted to give Ms Badger’s phone back to her; that he believed Ms Badger was having a sexual relationship with Mr. Burnett; and that he was jealous. She further conceded the admissibility of Mr. Campbell’s statements to Mr. Jeannis as he was leaving Apt. 412 shortly before the shooting. However, Ms Freeman objected to the admissibility of any statements made by Mr. Campbell indicating that he believed he was going to die or be killed that night, as well as any statements at all made by Jayna Badger.

[8] I ruled that the test of necessity was met for the ante-mortem statements of Cory Campbell (because of his death) and for the statements of Jayna Badger (because she had removed herself from the reach of this court). However, Jayna Badger gave so many different versions of the key events of that night that her prior statements do not meet the reliability threshold for admission. I ruled her prior statements to be inadmissible. Although some of the evidence with respect to the ante-mortem statements of Cory Campbell is subject to frailties, I found a sufficient basis for the jury to make determinations with respect to credibility and reliability. Therefore, I ruled that all of the witnesses other than Jayna Badger could testify as to the statements made by Cory Campbell in the hour or so before his death. No hearsay evidence was admitted with respect to any statements made by Jayna Badger.

[9] My reasons for those rulings are set out below.

B. BACKGROUND FACTS

[10] It is useful to provide some background to put these applications in context.

[11] Ms Badger and Mr. Campbell had a stormy relationship, to say the least. Ms Badger told Mr. Campbell that the relationship was over, a decision that Mr. Campbell had enormous difficulty accepting. Mr. Campbell besieged Ms Badger with repeated telephone calls and text messages. In many of those text messages, he accused her in graphic terms of having a sexual relationship with another man, which Ms Badger denied. Eventually, Mr. Campbell believed that the other man with whom Ms Badger was intimately involved was Andrew Burnett, known by the nickname “Burnie.”

[12] The conflict between Mr. Campbell and Ms Badger escalated in September 2012, and in particular on September 8, 2012. Over the course of the day on September 8, Mr. Campbell continued to make repeated calls to Ms Badger and said he was coming over to her apartment. On the afternoon of September 8, 2012, Andrew Burnett and Jeramy Henry met with Jayna Badger at her apartment at 11 Main St. in Toronto, according to them for the purpose of making music together. Mr. Henry is a music producer and composer; Mr. Burnett is a performer; Ms Badger was a music promoter. The Crown’s theory is that the plan to kill Mr. Campbell was likely developed that afternoon, or possibly, developed further after prior discussion on the phone during the early morning hours of September 8.

[13] At approximately 8:00 p.m., Mr. Henry drove Mr. Burnett to the Bayview and 401 area of Toronto, dropped him off there, and then returned to Ms Badger’s apartment. Mr. Henry had not been back long before Mr. Campbell arrived at the building. Shortly thereafter, Mr. Henry packed up his things and headed back to Bayview and 401 to meet up with Mr. Burnett. Meanwhile, Mr. Campbell took Ms Badger’s cellphone and left the building. Back at Bayview and 401, Mr. Burnett made a number of calls trying to reach Ms Badger. In at least one of those calls, possibly two, the phone was answered by Mr. Campbell. According to the Crown theory, in this telephone conversation, Mr. Burnett told Mr. Campbell that he was coming back to 11 Main St. and was going to kill him when he got there. The discussion (or discussions) between Mr. Burnett and Mr. Campbell took place at between 9:50 and 9:57 p.m.

[14] Ms Badger had sought refuge with her two children in the apartment of her friend, Juaneta Gooden, on the fourth floor of the same building. Mr. Campbell returned to the building at 10:20 p.m. and arrived soon after at Juaneta Gooden’s apartment. Troy Jeannis let him in. At this point, the following individuals were inside the apartment: Juaneta Gooden (and her children); Troy Jeannis; a friend of Ms Gooden’s, Natasha Lucas (and her children); Jayna Badger (and her children); and Cory Campbell. Over the course of the next hour, Mr. Campbell and Ms Badger continued to argue in front of the adults who were there. Mr. Campbell made a number of statements to Ms Badger and others, which the Crown seeks to introduce through the witnesses who heard him.

[15] At about 10:30 p.m., Mr. Campbell made two calls to his parents’ home from the Gooden apartment, speaking on both occasions to his father, Michael Campbell. The Crown seeks to tender these ante-mortem statements through Michael Campbell.

[16] Ms Badger gave a number of statements to the police. Those statements included information about what happened between Mr. Henry and Mr. Campbell earlier that night at about 9:40 p.m. She said Mr. Campbell pulled a knife on Mr. Henry and that Mr. Henry fled, returning later with Mr. Burnett. She further made statements about the shooting itself, to which she was a witness.

C. THE TEST FOR ADMISSION OF HEARSAY EVIDENCE

[17] There was no dispute between the parties as to the legal basis upon which hearsay evidence may be admissible at trial for its truth.

[18] The traditional rules against admitting hearsay evidence have been relaxed in modern times to provide for a “principled approach” to the admissibility of such evidence, based on the principles of necessity and reliability.[^1]

[19] As a starting point, hearsay evidence (where a statement is adduced to prove the truth of its contents and the person who made the statement is not available for cross-examination at trial) is presumptively inadmissible. For this reason, the party seeking to adduce the evidence bears the onus of establishing, on a balance of probabilities, that the criteria for admission have been met.[^2]

[20] Only out-of-court statements tendered for their truth are considered to be hearsay. If the statements are tendered only to show state of mind, they are not truly hearsay. I accept the Crown’s submission that some of the statements made by Mr. Campbell are admissible to show a relevant state of mind, for example that he was fearful. Evidence to show Mr. Campbell’s state of mind does not need to meet the tests of reliability and necessity in order to be admitted.[^3] This was not seriously contested by the defence. Other examples of admissible evidence of the deceased’s state of mind include statements by Mr. Campbell expressing his jealousy and his belief that Ms Badger was involved in a sexual relationship with another man. The animus between the deceased and the accused may be relevant to demonstrate motive.

[21] However, the state of mind of the deceased has only limited relevance in this case. The Crown sought to go beyond mere state of mind and to establish, through the words of Mr. Campbell, that he had in fact been threatened by Mr. Burnett, which in turn was relied upon as evidence of planning and deliberation by the accused supporting a conviction for first degree murder. Such evidence is subject to the rules for the admissibility of hearsay before it can be used for this purpose.

[22] As a preliminary step, it is necessary to determine whether the evidence may be subject to any of the traditional exceptions to the hearsay rule and be admissible on that basis.[^4] For example, statements against interest made by an accused are admissible as an exception to the hearsay rule. In this case, if there had there been a witness who had heard Mr. Burnett threaten Mr. Campbell, the evidence of that witness as to what Mr. Burnett said would be presumptively admissible. However, there is no such witness. The Crown relies on statements made by Cory Campbell to others to prove the words of Mr. Burnett. Those statements are hearsay and are admissible only if the principled approach tests are met.

[23] In applying the principled approach, the first step is to consider necessity. The death of the declarant is an obvious example of a situation in which the necessity criterion is met.[^5] The defence does not challenge that this test is met in respect of the ante-mortem statements of Cory Campbell. With respect to Ms Badger, she has left the jurisdiction and is not here for the trial. On the face of it, that would satisfy the necessity criterion. However, the onus remains on the Crown to prove this element. In the absence of adequate efforts by the Crown and/or police to ensure the attendance of a witness, the necessity criterion will not be met.[^6]

[24] In Khelawon, the Supreme Court modified the approach developed in previous cases, which drew a distinction between threshold and ultimate reliability. Instead, the Supreme Court determined that a functional approach should be taken. As the trial judge, my only decision as to reliability is to determine whether the evidence should be admitted before the trier of fact, not whether it should ultimately be accepted as truthful or accurate. In general terms, the reliability requirement will be met where concerns about the lack of cross-examination are sufficiently overcome to justify the admission of hearsay evidence. This can be proven either by showing that there is no real concern about the truth of the statement because of the circumstances in which it was made, or that there is no concern about the evidence being in hearsay form because there are adequate substitutes for testing the truth of the evidence. My focus must be on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the Crown to overcome those dangers.[^7]

[25] Factors that may be considered in assessing reliability at this stage include: the circumstances in which the statement was made; the person to whom it was made; when the statement was made in relation to the events to which it relates; whether there is any reason to doubt the truthfulness of the statement; whether there is a motive for the declarant to lie; whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember the events; the condition of the declarant at the time the statement was made; the spontaneity in the statement; the demeanour of the declarant at the time the statement was made; the amount of detail in the statement; and the extent to which there is other extrinsic evidence tending to confirm the reliability of the statement.[^8]

[26] Finally, even where the requirements of necessity and admissibility are met, it is necessary to be mindful of the accused’s right to a fair trial and the right to make full answer and defence. In fulfilling my gatekeeper role at this stage, I have residual discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial impact.[^9]

D. THE PROPOSED EVIDENCE

Ante-Mortem Statements of the Deceased

[27] Michael Campbell was expected to testify that his son Cory called him at 10:31 p.m. on the night of September 8, 2012, said that he called to say goodbye, and told him, “Some guy said he is coming to kill me tonight.” A few minutes later, Cory called his home again and when his father answered, asked to speak to his mother. His father told him that she was asleep and Cory asked his father to tell her that he loved her. This call was placed while Cory Campbell was in Ms Gooden’s apartment.

[28] Troy Jeannis had known Cory Campbell for many years. They had recently re-connected through their respective girlfriends – Mr. Jeannis was in a relationship with Juaneta Gooden who lived in the same apartment building as, and was friends with, Jayna Badger. Mr. Jeannis testified that when Cory Campbell first arrived at Apt. 412 that night, he knocked on the door and said he wanted to give Jayna back her phone. Mr. Jeannis opened the door and Mr. Campbell entered the apartment. During the course of the one hour or so that Mr. Campbell was in Apt. 412, immediately prior to his death, he spoke repeatedly about his belief that he was going to die that night, stating, “I’m going to die tonight and I’m ready brother.” Mr. Campbell also told Mr. Jeannis, “It is what it is. If I’m going out I’m taking somebody with me,” and Mr. Jeannis heard him tell Ms Badger, “If you want it to go like this, I’m not going out like no sucker.” Mr. Jeannis also said that Mr. Campbell and Ms Badger were arguing and that Mr. Campbell was jealous, believing Ms Badger was cheating on him. He heard Mr. Campbell say, “I know you’re fucking Burnie.”

[29] Ms Gooden, who was also in Apt. 412 during this time, was expected to testify that she saw Mr. Campbell standing in front of the windows in the apartment with his hands palms up and bent at the elbows, stating, “I’m going to die tonight.” She also heard Mr. Campbell and Ms Badger arguing and heard Mr. Campbell tell Ms Badger, “Go fuck Burnie.”

[30] Natasha Lucas was also present in Apt. 412 that night, although she had no prior contact with or knowledge of Mr. Campbell. She was expected to testify that while looking out the window, Mr. Campbell said that “he was going to die” and that “tonight was his last night.”

Evidence of Jayna Badger

[31] Jayna Badger made a number of statements about the events leading up to and during the shooting of Mr. Campbell on September 8, 2012. Apart from the two accused and Mr. Campbell, she was the only witness to the shooting itself.

[32] The Crown sought leave to introduce at trial the following eight sources of hearsay evidence in lieu of having Ms Badger testify in person:

(a) Ms Badger’s statements to the emergency 911 operator at 11:16 p.m., within seconds of the shooting;

(b) her oral statement at 11:25 p.m. to Sgt. Higgitt, the senior officer on scene, as recorded in the officer’s memo book (the video recording equipment having failed);

(c) her first formal statement at the police station at 1:03 a.m. on September 9, as recorded in the officer’s notes;

(d) her second formal statement to the police at 6:03 a.m. on September 9, 2012, for which there is a videotape and transcript;

(e) her third formal statement to the police at 8:02 a.m. on September 9, 2102, for which there is a videotape and transcript;

(f) her fourth formal statement to the police on September 10, 2012, for which there is a videotape and transcript;

(g) her fifth formal statement to the police on September 13, 2012; for which there is a videotape and transcript; and

(h) her testimony at the preliminary hearing over 10 days of testimony in September 2013, for which there is an audiotape and transcript.

[33] In a number of these statements Ms Badger talked about:

• her stormy relationship with Mr. Campbell;

• the events of the day leading up to the shooting, including her arguments with Mr. Campbell and the fact that he took her phone;

• Mr. Campbell’s jealousy about Mr. Henry being in her apartment that evening (including that Mr. Campbell kicked down her door, destroyed her lock, and pulled a knife on Mr. Henry, causing Mr. Henry to flee);

• Mr. Campbell’s statements that he was going to die that night;

• Mr. Campbell’s statement to her that Mr. Burnett had threatened to kill him and was coming for him that night;

• who was present at the time of the shooting;

• who did the shooting; and,

• how the shooting unfolded.

[34] There was substantial other evidence at trial confirming the stormy and abusive relationship between Mr. Campbell and Ms Badger. There were also other witnesses who heard Mr. Campbell say he was going to die that night. The identity of the shooter was no longer a critical issue when Mr. Burnett admitted at the outset of trial that he shot Mr. Campbell, although claiming that he did so in self-defence. However, there was no other source of information for the bulk of the proposed evidence to be given by Ms Badger. She was, therefore, a critical witness for the prosecution.

[35] Although it sought leave to introduce these eight sources of statements from Jayna Badger, the Crown actually relied upon the September 10^t statement and acknowledged that much of what Ms Badger said on other occasions was demonstrably untrue. However, the Crown agreed that if any aspect of Ms Badger’s pre-trial statements were to go into evidence, everything should be put in, so that the jury would have a more informed perspective from which to assess her evidence.

E. NECESSITY

[36] As I have already indicated, there is no issue with respect to the requirement of necessity in respect of the statements made by the deceased.

[37] I am also satisfied that the necessity requirement is met with respect to Jayna Badger. Ms Badger attended at the preliminary hearing and testified over many days. Although she was less than a cooperative witness, there was no indication that she was not prepared to attend to testify at trial. Toronto police officers were in touch with her on a regular basis and she seemed cooperative. She said she was a student but had arranged with her teachers to take off the time necessary to attend the trial. Arrangements were made to serve her with a subpoena for her attendance on January 5, 2015 in Toronto. Officers confirmed the travel and accommodation arrangements with her. When Ms Badger failed to show on January 5, I was requested to and did issue a warrant for her arrest. This was immediately transmitted to local police authorities where she had been living.

[38] Through extensive further investigation, police learned that Ms Badger terminated her apartment lease and her cellphone as of the end of December 2014 and crossed the border into the United States with her two children. Her mother, who lived nearby and with whom she was very close, also left her apartment and entered the United States on the same day and at the same border crossing. Authorities in the United States were alerted, including the Department of Homeland Security. Neither Ms Badger nor her mother had returned to Canada throughout the course of the trial.

[39] Officers made repeated and extensive attempts to contact Ms Badger by phone and through social media, but to no avail. The officer-in-charge personally went through each of the 183 contact numbers that had been on Ms Badger’s phone when it was turned over to police in September 2012, without any success in contacting Ms Badger.

[40] Initially, inquiries made by the Crown resulted in information that the American authorities would not detain Ms Badger or return her to Canada based on the material witness warrant because she had aboriginal status there. Subsequently, information was received that the aboriginal status was not a determinative factor, but that the American authorities would not act on the material witness warrant in any event, although they would advise Canada if Ms Badger were ever detained by American authorities for some other reason. The bottom line, however, is that there was no way to have Ms Badger arrested and forcibly returned to Canada to testify at trial.

[41] Later in the trial, telephone contact was made with Ms Badger. She was still in the United States. There were discussions about whether she would testify by videolink from there, or voluntarily return to Canada to testify. Both options involved her cooperation, which she did not provide. The trial continued through to April without Ms Badger ever making herself available to testify.

[42] I am satisfied that the Toronto Police Service acted diligently and did everything that could reasonably be expected of them to ensure Ms Badger’s attendance at trial. She was under subpoena and had told police she would comply. There was no basis to arrest her before she fled the country, and after she fled she was beyond the jurisdiction of Canadian law enforcement. I find in these circumstances that the necessity requirement is met.

F. RELIABILITY: WITNESSES OTHER THAN JAYNA BADGER

Ante-Mortem Statements of Deceased

[43] All of the witnesses tendered by the Crown with respect to Mr. Campbell’s ante-mortem statements were with Mr. Campbell or spoke to him within an hour of his death. The statements he made were very close in time to the incident that caused his death and his statements relate directly to his belief that his death was imminent. The proximity of the statements to the event causing Mr. Campbell’s death is a positive factor in assessing reliability.[^10]

[44] There would not appear to be any reason for Mr. Campbell to lie about his belief that he was going to be killed. The defence suggested that he could have been posturing to get sympathy from Ms Badger. This is not supported by the other evidence. Further, it does not explain the calls to his father. From what all the witnesses said, Mr. Campbell was not ranting or carrying on when he made these statements. He seemed rather resigned to it. The fact that Mr. Campbell armed himself with a knife also appears to reinforce the truth of his stated belief that he was going to be killed that night and was not going to go out like a sucker. The defence also suggested that Mr. Campbell could have been the aggressor and that he said things about someone coming to kill him in order to deflect suspicion from himself. I find that to be speculative and far-fetched.

[45] Obviously, these are factors that the defence may put to the jury and which the jury may take into account in determining the ultimate reliability and credibility of the statements made by Mr. Campbell and the extent to which they take those statements into account in reaching their verdict. However, I do not find these possibilities to be sufficiently problematic to undermine reliability at this gatekeeping stage.

[46] The circumstances in which the statements were made are also compelling. Mr. Campbell was concerned about his fate, pacing back and forth, and making what were spontaneous-type utterances about what he perceived to be his fate that night. One of the persons to whom he spoke more directly, Troy Jeannis, was a trusted friend to whom he had previously confided about his relationship with Ms Badger. Mr. Campbell appeared to have a close and loving relationship with his parents. The context of Mr. Campbell reaching out to his parents to say goodbye and to tell them that he loved them is a compelling factor supporting the reliability of his statement to his father about some guy coming to kill him.[^11]

[47] Mr. Campbell Sr. said that he had not known his son to make statements of this nature in the past, and that at the time of their conversation, his son appeared to be coherent, calm and sober. Mr. Campbell Sr. had no difficulty understanding what his son was saying.

[48] The other witnesses gave conflicting evidence about Mr. Campbell’s state of sobriety. Some witnesses thought he was high on drugs; others thought he was sober. The toxicology report showed the presence of methadone and marijuana in his system at the time of death. However, there was no evidence that Mr. Campbell was so affected by drugs that he would not be able to properly perceive what was happening around him. If he did receive a threat from Mr. Burnett, it would have been very shortly before he made the statements he did in Apt. 412. His state of sobriety would have been approximately the same at those times. Nobody had any difficulty understanding Mr. Campbell and there is no evidence that he was out of touch with reality, even if he was under the influence of drugs. There is nothing about his condition that causes me to be concerned about reliability at this stage.[^12]

[49] Mr. Campbell’s ante-mortem statements could have been more detailed. For example, he did not tell any of the witnesses in Apt. 412 (other than Jayna Badger) the name of the person he thought was going to kill him. However, he was specific about the fact that it was going to take place that very night, and it did take place less than an hour later. This factor supports reliability, or at the very least, does not detract from it.

[50] There is some conflict in the evidence as to exactly what Mr. Campbell said, and also some indications that the people who were in Apt. 412 had some opportunity to talk the matter over amongst themselves before their individual recollections were recorded. This detracts somewhat from reliability, but it is a matter that the jury would be able to take into account in their own determination as to ultimate reliability. When Michael Campbell spoke on the phone with Det. Idsinga on September 9, he may have given a somewhat different version of what his son said to him the night before. However, again this is a factor that the jury will be well-positioned to assess for themselves. The jury will have the benefit of the testimony and full cross-examination of the witnesses who were present at the time Mr. Campbell made these statements.

[51] There is some corroboration for many of the communications between these individuals in the records for cellphones and Ms Gooden’s home phone. The calls to Mr. Campbell’s father’s home are corroborated. There is also some corroboration that Mr. Campbell had taken Ms Badger’s cellphone from the evidence of Troy Jeannis, as well as video footage showing Mr. Campbell leaving and Ms Badger running after him a short while later. Cellphone records confirm contact between Ms Badger’s cellphone and Mr. Burnett’s cellphone during the point in time when her cellphone was in Mr. Campbell’s possession. This provides some corroboration for the fact that there was communication between Mr. Campbell and Mr. Burnett and the timing of that communication. Although the exact words uttered by Mr. Campbell as reported by each witness are not identical (which is to be expected), the gist is the same. The multiple accounts of the same essential utterances are also corroborative and enhance the reliability of the evidence.

[52] There is considerable probative value from these statements. Given that Mr. Campbell is deceased, what was going on in his mind immediately prior to his death and what Mr. Burnett had said to him are critical to the Crown’s case and cannot be obtained directly from him. There are a number of witnesses who can testify to his state of sobriety and his apparent sincerity at the time the statements were made. There is also expert toxicological evidence as to the drugs found in his system. The evidence of these witnesses can be tested on cross-examination through prior statements or testimony and by comparing the evidence of one witness to another with respect to the same event. In these circumstances I see little, if any, prejudice to the defence by the introduction of these ante-mortem statements by Mr. Campbell as reported by the witnesses who heard them. To the extent there is any prejudice, it is greatly outweighed by the probative value of their evidence.

[53] Accordingly, I find that at this gatekeeping stage of the proceedings, the ante-mortem statements by Mr. Campbell meet the reliability requirement for admission into evidence.

G. RELIABILITY: STATEMENTS OF JAYNA BADGER

[54] There is no question that Ms Badger has lied at every stage of her involvement in this case. She lied to the 911 operator; she lied to police officers at the scene as her boyfriend lay dying at her feet; she lied in various formal statements given under oath; she lied under oath at the preliminary hearing; and she lied to the police about whether she would comply with the subpoena served on her and attend this trial. There are so many outright lies and inconsistent versions of the events throughout Ms Badger’s statements that I will not attempt to review all of them, although I will refer to some of the highlights in order to illustrate certain points.

[55] The Crown conceded that many aspects of Ms Badger’s statements were untrue. However, the Crown’s position was that the jury could rely on the statements made by Ms Badger in her formal police interview on September 10, 2012 as essentially truthful, as well as some, but not all, aspects of the subsequent formal statement she gave on September 13, 2012. The Crown submitted that if all of the statements were before the jury, including the transcripts and tape recordings of the 10 separate days on which Ms Badger testified at the preliminary hearing, the jury would have a sufficient basis upon which to assess reliability and credibility.

Testimonial factors

[56] In considering reliability at this stage, it is relevant to take into account any factors affecting the accuracy and sincerity of the statement at issue. Clearly, the truthfulness of the witness and any motives to lie will influence an assessment as to the sincerity of that witness. Truthfulness is a serious problem with respect to Ms Badger’s evidence, for reasons I have set out below.

[57] With respect to accuracy, it is relevant to take into account the witness’s memory and opportunity to observe the event in question, as well as her condition at the time of the event and at the time of the statement.[^13] Ms Badger was present and in a good position to observe all of the relevant events that occurred at 11 Main St. on September 8. She was sane and sober at the time of the events and at the time of her subsequent statements to police. Her various statements were all taken in close proximity to the events, and there is no reason to believe she had any difficulty actually remembering the events. Although she claimed at the preliminary hearing to no longer have any memory of the events, her lack of memory was likely feigned.

[58] In short, there would not appear to be any difficulty with Ms Badger’s ability to accurately recall and report on the events of that fateful day. The question is not her ability to provide accurate evidence, but rather her willingness to do so. The stumbling block for the admissibility of this evidence is Ms Badger’s lack of sincerity or truthfulness.

Spontaneous and contemporaneous utterances

[59] Given that Ms Badger is not available for cross-examination at trial, it is appropriate to consider whether there are other circumstantial guarantees of reliability. Often, courts have considered that statements uttered spontaneously, while under considerable stress and close to the events in question, are more likely to be truthful.[^14] That general principle has no application here. Ms Badger lied to the 911 operator moments after the shooting and while her boyfriend lay dying right beside her. She appears to be somewhat hysterical on the call, crying and repeatedly calling out Mr. Campbell’s name and telling him that she loved him. She told the operator that he had been shot by the elevators on the fifth floor. At one point, she said he had stopped breathing, but then said that he was breathing. In the middle of this, when emergency response units were en route, the operator asked Ms Badger if she had seen the person who shot him. Ms Badger said it was “just some guy,” that he was black, that she did not know how old he was, and that she “didn’t even see his face” because he was wearing a black hoodie with the hood up. Almost immediately after that, she reported to the operator that Mr. Campbell had stopped breathing and the operator began giving her instructions on how to perform CPR, at which point the first police officer arrived on scene and took over the efforts to resuscitate Mr. Campbell. All of the details provided by Ms Badger about the shooter were untrue, except that he was a black male. She did see the shooter, she did know him, and he was not wearing a black hoodie. Listening to the tape-recording of the 911 call, and even knowing when Ms Badger was lying, I found it impossible to detect any difference in her tone between when she was lying and when she was telling the truth.

[60] At 11:25 p.m., approximately 10 minutes after the shooting, Ms Badger told the first officer on scene that the shooter was a black male, approximately 6’1” tall with a slim build, wearing baggy clothes and a black hoodie. The senior officer on scene that night, Sgt. Higgit, spoke to her shortly after that. Mr. Campbell was still lying on the floor with paramedics working on him in an attempt to save his life, and Ms Badger was beside him, crying. Sgt. Higgitt took her aside to speak to her. When he asked if she knew the shooter, she said that she did not (untrue) and stated that she could not see him because his hood was over his face (untrue), volunteering the detail that she only knew he was black because she saw his hand. Sgt. Higgitt asked her what happened. She said that she and Mr. Campbell were “just chillin” for the night in her apartment (untrue) and decided to go out to the store (untrue). She said as they walked down the hall, approaching the fifth floor elevator, they bumped into two men (untrue). One of the men said, “What the fuck” then turned and shot Mr. Campbell. She said she heard the sound, but did not even realize that Mr. Campbell had been shot until he told her to call 911. When asked for a description of the second male, all she could say was that he was shorter than the shooter (true). but that she did not know what he looked like (untrue) because he was wearing a black hoodie (untrue).

[61] Again, these descriptions are false, except for the fact that Mr. Burnett is taller than Mr. Henry and both are black. Mr. Burnett was wearing a very distinctive bright blue hoodie with elaborate scroll designs in white all over it; Mr. Henry was wearing a dark jacket with no hood at all. Ms Badger knew both of them very well. Both had spent a good part of the afternoon in her apartment with her and she had been on the phone repeatedly with both of them throughout the earlier part of that day and night. Both Mr. Burnett and Mr. Henry were listed as contacts in her cellphone and her cellphone records show many, many calls and texts with them. Ms Badger and Mr. Campbell were not on their way to the store. They had been in Juaneta Gooden’s apartment and had been arguing for the better part of the past hour. Mr. Burnett called her when he and Mr. Henry arrived back at her apartment building. She and Mr. Campbell then took the elevator to the ground floor, where Mr. Henry and Mr. Burnett were waiting. There was some interaction between Mr. Burnett and Mr. Campbell. Then all four of them got on the elevator. The shooting occurred seconds later on the fifth floor, just outside the elevator.

[62] Almost everything in these relatively contemporaneous accounts from Ms Badger is invented, even though these were statements made at the scene, mere minutes after the shooting, while Mr. Campbell was still lying on the ground being ministered to, and with very little time to fabricate a story.

Formal statements, videotaped, under oath, and with warnings about consequences of lying

[63] Another factor sometimes regarded as a circumstantial guarantee of reliability is the existence of a videotaped statement that is given under oath, where the solemnity of the occasion is brought home to the witness and she is warned about the consequences of not telling the truth.[^15] That factor does not assist in this case either. Ms Badger had no compunctions about lying under oath. Perhaps she had some subsequent concerns about lying to the police. Perhaps she was worried about being charged with obstructing police by lying to them, or about being charged with perjury for lying under oath in those statements and at the preliminary hearing. Perhaps those concerns influenced her decision to flee the jurisdiction. However, whatever concerns she may have had about the problems associated with lying under oath, they clearly did not influence her decision about whether to tell the truth. Notwithstanding that she was under oath and had been warned about the consequences of lying, she gave dramatically different versions of key facts from one statement to the next.

[64] For example, at 1:03 a.m. on September 9, 2012, Ms Badger gave her first formal statement to the police under oath and after the usual warnings. There is no recording of that interview because the equipment malfunctioned, but D.C. Beth Friesen took detailed notes. On that occasion, Ms Badger basically told the same story she had told officers on the scene a few hours earlier, adding some details (e.g. that she and Mr. Campbell had been in her apartment watching “Big Rich Texas” prior to deciding to go for juice at Dip and Sip, which was a lie). She repeated her previous lies that two men wearing hoodies passed in the hallway, and that Mr. Campbell bumped into one of them whereupon the man shot him. She maintained she had never seen the two men before and did not see their faces. One of the detectives was called out of the interview room briefly and upon his return he told Ms Badger that a witness reported seeing her with these two males earlier in the evening. She denied that this was the case, which was also a lie. Indeed, almost every detail of this statement is a lie.

[65] D.C. Friesen drove Ms Badger back to her apartment building shortly before 3:00 a.m., leaving her with her friends in Apt. 412. Ms Badger called the police station at 4:45 a.m. and said she did not feel safe where she was. Officer Friesen asked her to call back in five minutes. At 5:01 a.m., Ms Badger called the officer again and, without any prompting, said that she was now willing to tell the police everything she knew. D.C. Friesen returned to her apartment, picked her up with her children, and brought them back to the police station.

[66] The second formal statement to the police, which commenced at 6:03 a.m., was also under oath and after a warning about the consequences of lying. Ms Badger most definitely did not tell the police “everything she knew.” Again she told a string of lies. She did admit this time that she knew one of the two men, and said she had met him on the Danforth two to three weeks before (untrue) and had given him her cellphone number. For the first time, she said that he was wearing a blue hoodie with designs on it. She said she knew him by the name “Cash” (untrue), but that she did not know the guy who was with him (untrue). She admitted that these two men had been at her apartment earlier in the afternoon (true, but only admitted after she had some time to think about the implications of a witness having seen her with these two men). She then repeated the story about leaving her apartment to go get juice at the Dip and Sip (although this time she left out the detail about watching Big Rich Texas and said they had been arguing about their relationship, then made up, and decided to go get juice). At first she told a similar story as before about meeting the two men in the hall, Mr. Campbell bumping into “Cash” and “Cash” shooting him. She explained that Cash “had a temper” and a “bad vibe.” A few minutes later, she changed that story and said that she had unexpectedly received a phone call from “Cash” saying he was in her lobby and that she and Mr. Campbell had gone down in the elevator to meet “Cash” and his friend. Ms Badger said that “Cash” and Mr. Campbell immediately recognized each other and started “giving each other attitude.” They were on their way to her apartment on the fifth floor to “be cool” and “have a cigarette” when all of a sudden “Cash” shot Mr. Campbell. She claimed she did not see it happen, but heard it. A very short while later in her statement, Ms Badger slipped up and referred to “Cash” as “Burnie.” At first, when asked to explain her reference to “Burnie” (p. 83 of the transcript), she apologized and said she was “getting names mixed up.” Six pages later in the transcript, she said she used that name because she “heard his boy calling him that” (untrue). She claimed she did not know the name of Cash/Burnie’s friend (untrue) and that she did not know his phone number (also untrue).

[67] In her third formal statement to the police that same morning at 8:02 a.m., Ms Badger identified a photograph of Andrew Burnett as being “Cash” and said he was the shooter. Later in that interview, she said that the man in the photograph was her former boyfriend, Shane Curlen (untrue), and that he had raped her little brother. However, she almost immediately retracted that statement and said the photo was not of Shane Curlen, but that it did look like him.

[68] The next day, September 10, 2012, Ms Badger called the police station at 10:25 a.m. and left a voice message that she had “left some things out” of her statement the day before that she now wanted to provide. She met with Det. Sgt. Idsinga that afternoon to provide her fourth formal police statement, again under oath and after a caution. Also, on this occasion, Det. Idsinga told Ms Badger that she was a suspect, that she could be charged with being a party to first degree murder, and advised her of her right to counsel and her right to remain silent.

[69] In this interview, Ms Badger stated for the first time that Mr. Campbell had physically abused her and threatened her in the past. She also admitted that she had known Burnie for over a year. She said Mr. Campbell told her on Saturday, September 8, that he was coming over. She said that she was afraid of Mr. Campbell, so she called Burnie and asked him to “come chill” with her, believing that Mr. Campbell would not assault her if there were other people around. Burnie and KB (Mr. Henry) came over in the afternoon and stayed for about four hours. They then left, but KB came back on his own. She said that when KB was in her apartment, Mr. Campbell arrived and knocked on the door. She said she told Mr. Campbell she was not letting him in, whereupon he kicked the door in, breaking the lock. She said Mr. Campbell was angry when he saw KB in her apartment, and he pulled a knife on KB and “was like trying to chill out KB.” She said KB grabbed his computer tote bag and “took off” in a manner she described as “pretty fast.” She described the knife wielded by Mr. Campbell as being “older” and “different.” She said it had a curved blade, “might have been a bit pointy” and might have had a wooden handle. She said Mr. Campbell was carrying it tucked into his waist. Later in her interview, Ms Badger elaborated on this incident, stating that she had to stop Mr. Campbell from going after KB and that KB actually had to run out of the building. After this incident, she said Mr. Campbell took her cellphone and left with it. She tried to chase after him, but he hopped over a fence at the back of the building and she therefore returned to her apartment.

[70] According to Ms Badger, Mr. Campbell came back to her apartment about 20 minutes later and told her that he had answered her phone, that Burnie was on the other end, and that Burnie had told him he was “gonna come try to do me in.” She said that after this, she went to her friend’s apartment, Unit 412, and Mr. Campbell followed her there. He was talking about dying that night and she heard him talking to his father on the phone. She said that she and Mr. Campbell were arguing and that she kept calling KB and Burnie to find out what was happening. They said they were coming back but when she tried to talk to them, they hung up on her. A while later, the phone rang and Mr. Campbell answered it and held it to her ear. It was Burnie telling her he was downstairs. She said she tried to convince Mr. Campbell not to go, but that he pushed her out the door, saying, “I wanna fucking deal with this.”

[71] Ms Badger said that when they got to the ground floor, Burnie and KB were there and that Burnie and Mr. Campbell started yelling and swearing at each other. She was trying to calm them down and suggested going to her apartment so they could just talk it over. She said they were walking towards her apartment from the elevator when Mr. Campbell said something and Burnie “just spun around and shot him.” She said she did not know what Mr. Campbell said. She did not see the gun, nor did she see the shot being fired. She could not remember where KB was and said that she though he “was already going down the hallway or something.” Towards the end of the interview, Ms Badger selected Mr. Burnett’s photograph from a photo line-up and identified him as “Burnie.” After providing this statement, Ms Badger repeatedly said she was scared and that she was now going to die.

[72] Det. Idsinga asked Ms Badger about her prior statement in which she said her former boyfriend Shane had shot Mr. Campbell. At first she said that she did not mean to say it and that she “got the questions mixed up or something.” However, she acknowledged that she “kind of” wanted to blame Shane because he raped her little brother and got away with it, but then realized she could not do that. Det. Idsinga asked Ms Badger if she had said anything else in her previous interviews that was untrue, and she said “No,” but that she “more or less just left things out.” When asked why she left things out, she said it was because she did not want Mr. Campbell’s name “to look bad” or to reveal “how our relationship really was.” She then added, “I didn’t want him to die though.”

[73] Det. Idsinga interviewed Ms Badger again on September 13, 2012 at 9:58 a.m., her fifth formal statement. The interview was recorded and was under oath. She was again cautioned about the consequences of lying and was told she remained a suspect. She was also advised of her rights to counsel and to remain silent. She was shown a photo line-up and identified a photograph of Mr. Henry as being the man she knew as KB. She said he owned a red car. Ms Badger repeated that on the night of September 8, when Burnie and KB arrived in the lobby, she told Mr. Campbell to stay upstairs. She said, “I’m thinking that they were just gonna talk or something.” However, she said Mr. Campbell insisted on coming with her. She denied seeing Mr. Campbell’s knife in the elevator. She said Mr. Campbell was high on “E” that night and that he was violent. She also said that he had a high tolerance for drugs. In describing the shooting, she said that “[Mr. Campbell] was getting up in [Mr. Burnett’s] face and then there was all of a sudden pop.” When asked again to describe the knife she had seen Mr. Campbell with earlier in the day, she said it was different from a kitchen knife and “looked like some, like old Indian knife.” Towards the end of the interview, when asked if she had any other information that could assist the investigation, she stated, “Honestly it was like you know, honest, it was like self-defence.” She then added, “Burnie like was self-defending himself, you know like obviously I didn’t know he had a gun and stuff but still they didn’t, I don’t know, it’s just [Mr. Campbell] is unstoppable. I’m not saying they wrong to shoot [Mr. Campbell] but if they were to actually get into a fight and stuff [Mr. Campbell] probably would have fucked him up big time.”

[74] Thus, Ms Badger gave several completely contradictory versions of the key events, including the shooting itself, all of which were made under oath and after being warned about her potential exposure to being charged with obstructing police and/or perjury if she lied. Notwithstanding the warnings, she did lie. Therefore, even though the September 10 statement relied upon by the Crown was made under oath and after warnings, those factors do not distinguish this statement from the others. The circumstances in which that statement was given are the same as the prior statements which are known to be untrue. The only distinguishing factor is that Ms Badger was now aware that she was herself a suspect. However, I do not find that this factor enhances reliability. It is just as likely to create a greater motivation to lie, in order to deflect suspicion off herself and onto others.

Motive to lie

[75] It is well established that the existence of a motive to lie is a relevant factor in considering the admissibility of out-of-court statements.[^16] The hearsay dangers arising in such a situation are particularly acute when there is no opportunity for cross-examination, or the witness is seeking to implicate an alleged accomplice.[^17]

[76] Prior to her statements on September 10 and September 13, Ms Badger was told she was now a suspect in the murder of Mr. Campbell. It was only after that warning that Ms Badger said anything to implicate Mr. Burnett or Mr. Henry. In particular, it was only after that warning that she talked about Mr. Campbell having threatened Mr. Henry with a knife just prior to Mr. Henry leaving and then returning with Mr. Burnett.

[77] There were a number of phone calls between Ms Badger and both Mr. Henry and Mr. Burnett in the early morning hours of September 8. There were also many, many phone calls made on September 8 by Mr. Campbell to Ms Badger from midnight through to 5:00 a.m., and commencing again from 11:00 a.m. into the early afternoon, many of which were unanswered, but some of which were connected. Then, shortly after 1:00 p.m., there were calls between Ms Badger and Mr. Henry and between Mr. Henry and Mr. Burnett, culminating in the arrival of Mr. Burnett and Mr. Henry at Ms Badger’s apartment building at 3:09 that afternoon. In one of her statements to the police on September 10, Ms Badger stated that she had asked “Cash” (subsequently said to be Mr. Burnett) to come to her apartment that day because she was expecting Mr. Campbell to show up and she was afraid he would be violent. She said she thought Mr. Campbell would not touch her if Cash and his friend were with her.

[78] At 4:47 p.m., Mr. Burnett sent a text to Ms Badger stating, “when do u want this thing to happen.” This was sent when Mr. Burnett and Mr. Henry were both still at Ms Badger’s apartment building. Two questions immediately arise: (1) what is “this thing” that Ms Badger wanted to happen? and (2) why was Mr. Burnett sending Ms Badger a text if they were together in her apartment?

[79] At this point in time, Ms Badger’s cellphone screen had been shattered and she could not read text messages. However, Ms Badger was questioned about this particular text message by Det. Idsinga in the interview on September 13, and she said that Mr. Burnett was referring to wanting to record music. The fact that she offered an explanation suggests she likely had a conversation with Mr. Burnett about the text, even if she could not have read it. However, the explanation she provided makes no sense given that by 3:09 p.m., when the text was sent, Mr. Burnett and Mr. Henry had already been there for over an hour and Mr. Henry had his recording equipment with him. Further, any recording would necessarily involve Mr. Henry. Why, therefore, would Mr. Burnett send the text to Ms Badger? One possible explanation is that Mr. Burnett sent the text privately to Ms Badger, rather than simply speaking to her openly, in order to keep it secret from Mr. Henry. If so, it is unlikely that the subject of the text is a music recording session. The Crown theory is that it refers to a plan to kill or seriously harm Mr. Campbell.

[80] On the tape recording of the 911 call, Ms Badger can be heard in the background crying and telling Mr. Campbell she is sorry. When asked about this at the preliminary hearing, she said that she did not know what she was sorry about. She was not sure if she was sorry because she felt that she had contributed to his death or because she arranged to have other people present at the same time as Mr. Campbell. Following the death of Mr. Campbell, Ms Badger posted a message on her Twitter account stating, “Everyone has a little devil inside them and I just think mine’s a little bigger than most.” When asked about this at the preliminary hearing, she said she did not know what she was referring to in this tweet.

[81] In this context, there is some basis for suggesting that if there was a plan to kill or harm Mr. Campbell, Ms Badger was likely involved in it, or at least knew about it. This would have given Ms Badger a motive to lie in order to minimize her own involvement, and/or to deflect responsibility on to others.

[82] The existence of a motive to lie, even on its own, is a factor undermining the reliability of a statement. In this case, the motive to lie is coupled with a proven history of lying, both before and after the statement relied upon by the Crown, as well as the absence of any opportunity to test the evidence by cross-examination. This combination greatly undermines the reliability of the evidence.

Corroborative and contradictory evidence

[83] Obviously, Ms Badger’s various statements contradict each other. There is also an abundance of other evidence contradicting virtually everything that Ms Badger said in her initial statements to police, including the three statements taken under oath on September 9.

[84] Many of the details given by Ms Badger on September 10 as to the comings and goings from her apartment, the calls on her cellphone, and the identity of the two men can be corroborated through video surveillance, the cellphone records and the testimony of the other persons in Apt. 412 that night. However, by the time Ms Badger gave her statement on September 10, she knew there was a witness who had seen her with Mr. Burnett and Mr. Henry that afternoon and she knew the police would have the surveillance videos and her cellphone. At that point, she would have realized it was useless and counter-productive to maintain that she did not know the two men, or to deny the hard evidence about the comings and goings from the building and the telephone calls. Therefore, corroboration of these details does not assist in enhancing the overall reliability of her evidence to the extent that might have been the case if she had volunteered these details before knowing it was inevitable that the truth would come out from those sources and before being advised that she herself had become a suspect in the killing.

[85] Apart from Ms Badger’s statements on September 10 and 13, there is no source of direct evidence as to what happened between Mr. Campbell and Mr. Henry in Ms Badger’s apartment earlier in the evening of September 8. However, there are some circumstantial details that either contradict, or do not corroborate, her evidence about that incident. Ms Badger described a knife that she said Mr. Campbell had in the waist of his pants and which she said he pulled on Mr. Henry. That knife was not found when officers searched Ms Badger’s apartment. Further, her description does not remotely match the knife that Mr. Campbell had on him, tucked into the waistband of his pants, at the time of his death. Ms Badger described Mr. Henry fleeing from her apartment and “moving fast” out of the building. There is no video camera on the fifth floor. However, surveillance camera footage from the ground floor shows Mr. Henry leaving at a normal pace and not looking in any way concerned or troubled. Finally, police officers inspected Ms Badger’s door, which she said Mr. Campbell kicked in, breaking the lock. It was not damaged.

[86] The existence of some corroboration for Ms Badger’s evidence is not particularly helpful in this case. Those matters that can be corroborated are not contentious; for example, the fact and timing of telephone calls and the comings and goings from the apartment. There is no corroboration for the most critical part of Ms Badger’s evidence, being what happened in the apartment between Mr. Campbell and Mr. Henry and how the actual shooting occurred. More troubling, some of this evidence is directly contradicted by other reliable evidence. Overall, this is a factor undermining the reliability of the evidence.

The preliminary hearing evidence and prior opportunity to cross-examine

[87] Given Ms Badger’s lack of truthfulness and her motive to lie, the opportunity for meaningful cross-examination takes on even greater importance. There will be no opportunity to cross-examine Ms Badger at trial; she has fled the jurisdiction. The question, therefore, is whether the cross-examination at the preliminary hearing is an adequate substitute for contemporaneous cross-examination at trial.

[88] Ms Badger attended the preliminary hearing and testified over the course of 10 days. She claimed to have no knowledge or memory of anything at all, including no memory of having given prior statements. She was cross-examined extensively by the Crown and by both defence counsel. She continued to maintain a complete absence of any memory, including any memory of either of the two accused. She claimed she did not recognize them in the courtroom. She was repeatedly admonished by the trial judge for not answering questions truthfully, or not answering them at all. After an adjournment to allow her to obtain independent legal advice as to the implications of the position she was taking in her evidence, she said she could recall: being in the hallway with gunpowder over her; Mr. Campbell in the hallway holding his stomach and telling her to call 911; and a person standing in front of Mr. Campbell and shooting him from a distance of one metre away. She said that “KB” and “Burnie” sounded familiar to her, but that she could not put a face to either of them. She then continued to deny any memory of the events leading up to the shooting or following the shooting, including any of the statements she gave to the police.

[89] The preliminary hearing judge, Justice Moore, described her evidence as follows:

Ms Badger came close to being cited for contempt. In the stand, she disavowed virtually any knowledge as to what occurred on September 8 and September 9, 2012, despite being shown audio and video recordings of her statements and video footage of her apartment building, including her, the deceased and one or both of the defendants. She often declined to acknowledge the obvious. Her memory and level of cooperation on the stand was virtually non-existent. Evidence and information pertaining to telephone, cell phone, social media records etc. would draw a blank stare.

[90] At the preliminary hearing, Ms Badger testified that she had lost her memory due to the trauma of these events and that she was receiving treatment for this at a hospital in Alberta. Subsequent police investigation has shown that this is untrue. She has not been treated in the hospital for anything connected with this matter since she was in Toronto in September 2012.

[91] In these circumstances, it cannot be said that the defence has had any meaningful opportunity to cross-examine Ms Badger. In Khelawon, the Supreme Court emphasized the vital importance of cross-examination in testing the truth and reliability of evidence. Justice Charron held at para. 63:

Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.

[92] Where the witness claims a memory loss, there can be no effective cross-examination. As was stated by the Ontario Court of Appeal in R. v. Conway at para 29:

. . . 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.

[93] There are numerous inconsistencies in Ms Badger’s statements. There are other aspects of the statements that appear incongruous (e.g. her explanation of the text message from Mr. Burnett that afternoon). There are many examples of outright lies on issues of profound importance to the defence. In these circumstances, the importance of the right of cross-examination to challenge the truth, plausibility, and reliability of aspects of her September 10 and 13 statements is heightened. This would be a difficult hurdle even if there had been meaningful and vigorous cross-examination at the preliminary hearing. Given that cross-examination at the preliminary hearing was an “exercise in futility,” it cannot provide a substitute for contemporaneous cross-examination at trial.

The hearsay evidence is not admissible

[94] The Crown has failed to establish any basis for the admission of the statements of Jayna Badger. She is not available for cross-examination and there is no adequate substitute for that cross-examination. Although there are statements under oath close in time to the event, and although there are video and audio recordings of those statements as well as an audio recording of the preliminary hearing, it is clear that Ms Badger will lie notwithstanding those circumstances. Her demeanour provides little or no assistance in assessing her credibility. Even spontaneous utterances, such as those made while talking to the 911 operator as Mr. Campbell lay bleeding at her feet, have been shown to be deliberate lies. Thus, there are no circumstances from which reliability might be inferred and no other basis for finding the statements inherently reliable. On the contrary, given Ms Badger’s history of lying and her motive to lie, it is fair to say that her evidence is inherently and entirely unreliable.

[95] There is no basis upon which the jury could make informed decisions on whether any of Ms Badger’s statements on contentious issues are true. There are no tools that could be offered to them to conduct such an analysis. Accordingly, I found the evidence of hearsay statements of Ms Badger to be inadmissible.

Probative value versus prejudicial impact

[96] Having reached that conclusion on the issue of reliability, the probative value as compared to the prejudicial impact of the evidence is not essential to my decision. I have nevertheless considered the question.

[97] The prejudicial impact is extreme. Ms Badger was the only witness at the shooting other than the two accused. Her evidence is damning, particularly for Mr. Burnett. Likewise, her statement about the earlier altercation between Mr. Campbell and Mr. Henry has potentially dire consequences for Mr. Henry, as it provides a possible motive for revenge, in the absence of which there is little if any evidence of motive against him. There is very little basis upon which to test this evidence, other than by showing that Ms Badger lied in the past. There is a serious risk that the jury could find that Ms Badger lied earlier because she was afraid she would herself be killed if she told the truth. Indeed, Ms Badger said exactly that to Det. Idsinga in her September 10 and 13 statements. Even if it were possible to excise the portions of the statements where she expressed those fears (which would not be a simple task), the possible inference is still there. This would be grossly unfair to the defendants given their inability to confront her in cross-examination. Thus, the potential prejudicial impact of the evidence is high.

[98] On the other hand, the probative value of the evidence is very low. Ms Badger, quite simply, is a liar. She has no concern whatsoever about lying under oath, and no respect for the justice process. There is no rational basis upon which to determine when she might be telling the truth and when she might be lying. Ms Badger is so lacking in credibility that, in the absence of corroboration by others, her evidence is close to worthless. It would be extremely dangerous to make any finding of fact based solely on what she told the police at some point in time. I therefore find that to the extent there is any probative value to her evidence, it is far outweighed by the prejudicial impact on the accused. In my view, admitting this evidence would undermine the accused’s right to a fair trial. This is a further basis for excluding the evidence.

MOLLOY J.

Released: May 8, 2015

COURT FILE NO.: 14-7-0000132-0000

DATE: 20150508

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDREW BURNETT and JERAMY HENRY

Defendants

REASONS FOR JUDGMENT

(Ruling re Hearsay Statements)

MOLLOY J.

Released: May 8, 2015

[^1]: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; and R. v. Starr, [2000] 2 S.C.R. 144.

[^2]: R. v. Khelawon, [2006] 2 S.C.R. 787, at paras. 2-3, 47, 56.

[^3]: R. v. Griffin, [2009] 2 S.C.R. 42, at paras. 59-65.

[^4]: R. v. Mapara, [2005] 1 S.C.R. 358, at para. 15; and Khelawon, at para. 60.

[^5]: R. v. Blackman, [2008] 2 S.C.R. 298, at para. 34.

[^6]: R. v. Baldree, [2013] 2 S.C.R. 520, at para. 68; R. v. O’Connor (2002), 170 C.C.C. (3d) 365, at para. 57 (Ont. C.A.); and R. v. Forbes, [2006] O.J. No. 5529, at para. 8 (S.C.J.).

[^7]: Khelawon, at paras. 60-100.

[^8]: Khelawon; Khan; Smith; Blackman; R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319; R. v. S.S., 2008 ONCA 140, 232 C.C.C. (3d) 158; R. v. Hindessa, [2009] O.J. No. 3837, at para. 14 (S.C.J.); and R. v. Mendez-Romero, [2008] O.J. No. 512 (S.C.J.); and R. v. Polimac, [2006] O.J. No. 4757 (S.C.J.).

[^9]: Khelawon, at para. 49.

[^10]: R. v. Nicholas, [2004] O.J. No. 725, at paras. 88-92 (Ont. C.A.); and Hindessa, at para. 14.

[^11]: R. v. Blackman, at paras. 21, 43, 57; R. v. Czibulka, [2004] O.J. No. 3723, at para. 47; R. v. Mendez-Romero, at paras. 19, 22, 30; and R. v. Pasqualino, at paras. 43, 57; and R. v. Singh, [2010] O.J. No. 5622, at paras. 26, 29.

[^12]: Khelawon, at paras. 2, 36.

[^13]: Griffin, at paras. 95-96; Khelawon, at paras. 2, 67; and R. v. Michaud, [2004] O.J. No. 2098, at para. 9 (Ont. C.A.).

[^14]:R. v. Clark (1983), 7 C.C.C. (3d) 46, at paras. 32-33 (Ont. C.A.); R. v. Nicholas (2004), 182 C.C.C. (3d) 393, at para. 88 (Ont. C.A.); leave to appeal refused [2004] S.C.C.A. No. 225.

[^15]: R. v. B. (K.G.), [1993] 1 S.C.R. 740, at paras. 88-104; Khelawon, at paras. 79-81; R. v. Hawkins, [1996] 3 S.C.R. 104, at paras. 79-80; and R. v. Chretien, [2014] O.J. No. 2351, at paras. 58, 59.

[^16]: Blackman, at para 42; Starr, at para. 216; and Czibulka, at paras. 35-40.

[^17]: R. v. Youvarajah, [2013] 2 S.C.R. 720, at paras. 33-34, 54, 62, 70-71; and R. v. Merz, [1999] O.J. No. 4309, at para. 53 (Ont. C.A.).