CITATION: R. v. A.A. and A.D., 2015 ONSC 2467
COURT FILE NO.: CR-13-40000552-0000
DATE: 20150427
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
Paul Alexander, for the Crown/Applicant
- and -
A.A. and A.D.
David Adanja, for the Defendant/Respondent, A.A.
Defendants/Respondents
Ari Goldkind, for the Defendant/Respondent, A.D.
HEARD: December 10-16, 2014, at Toronto, Ontario
Michael G. Quigley J.
WARNING
An order has been made restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Reasons for Ruling: Re: Voir Dire #3:
Application for admissibility of certain evidence under R. v. Khelawon
Overview
[1] A.A. and A.D. are each charged with two counts of sexual assault, one on J.C. and the other on C.L. The assaults are said to be the culmination of an evening spent by the two complainants with the two accused, partying in Toronto.
[2] After the accused A.D. met the complainants at a bar, he picked them up a day or so later at their residence at the time in Peterborough, drove with them to Toronto, attended a couple of houses of acquaintances and then picked up A.A. Along the way they went to a local bar, and after at least C.L said that she had become exceedingly drunk, C.L and her friend, J.C, got separated. C.L. was with A.D. and J.C. was with A.A. Each of them alleges that they were each sexually assaulted by each of the two male accused at least once, if not more than one time.
[3] This case was scheduled for trial over a period of two weeks, commencing Monday, December 8, 2014. It had previously been on the list for trial for June 9, 2014, but was adjourned when it became clear to the Crown, somewhere between June 7 and 9, that C.L. would not attend to give her evidence.
[4] On June 10, before the trial commenced, Crown counsel brought an application to have C.L.’s statement and her evidence from the preliminary inquiry admitted for the truth of its contents. However, the entire matter was adjourned so the application was not heard at that time.
[5] Now, six months after that first trial date was adjourned, Crown counsel seeks an order under R. v. Khelawon[^1] that the videotaped statement given to the police by C.L. within 12 hours of the occurrence of the alleged assaults (and its transcript), and the testimony and cross-examination of C.L. given at the preliminary inquiry be admissible for the truth of their contents in lieu of her in-person testimony at trial.
Procedural matters
[6] This case was scheduled to be tried over two weeks, including all pretrial applications. As events proved, however, that was a considerably lesser amount of time than was required for the pretrial motions to be heard and for the trial to proceed before a jury. The defendant, A.A, and Crown counsel consumed seven out of the ten days available with five separate pretrial motions. These were first the application of A.A.:
(i) to have an interpreter because he is Nigerian, notwithstanding that his mother tongue is English – dismissed for reasons released separately;
(ii) to challenge the voluntariness of a statement made by A.A. to police – abandoned after one full day of evidence; and
(iii) a res gestae application – agreed in part.
[7] They were followed by two pretrial applications brought by Crown counsel:
(i) his own res gestae counter application relative to a different part of the same body of evidence – agreed in part to balance the evidence relative to the defendant’s res gestae application; and
(ii) this application under R. v. Khelawon.
[8] Dealing briefly with the res gestae applications, counsel ultimately reached agreement on those issues albeit only with strong encouragement from me. I note, however, that I would have ruled that all of the text messages exchanged between C.L. and J.C. ought to be introduced at trial for the truth of their contents, as counsel ultimately sensibly agreed. They take place over a period of a day or more leading up to the trip to Toronto from Peterborough and they provide some indication of the states of mind of the complainants.
[9] The jury should be permitted to see the texts as they provide context and a framework and narrative to the circumstances in which the sexual assaults are alleged to have occurred. In giving that ruling, however, I would have emphasized the need to give a strong cautionary instruction to the jury about impermissible uses of that text message evidence and of the fact that they cannot engage in propensity reasoning.
[10] We live in a diverse multicultural city in a country that plainly embraces multiculturalism and to which many people from many diverse lands have immigrated. Many citizens have entered into mixed racial relationships, marriages, and families. Our law is accepting and tolerant of racial and sexual diversity.
[11] Nonetheless, a trial judge should caution a jury that simply because there may be evidence that a complainant has an attraction to persons of a particular racial background can never be indicative of whether or not she consented to sexual relations with someone of that background. Nor can it ever permit the prohibited propensity reasoning, denounced in s. 276 of the Criminal Code and the decisions in R. v. Seaboyer and other cases that a complainant would be more likely to consent to sexual relations with such a person. I would have provided a strong cautionary instruction to the jury, as I expect will the trial judge who ultimately presides in this case.
[12] Lastly, this brings me to the Crown’s application for C.L.’s videotaped statement and the recording and transcript of her testimony in chief and cross-examination at the preliminary inquiry to be admissible for the truth of their contents, but without her being present. That application under R. v. Khelawon heard evidence of the complainant’s mother, C-L.H., over two full days and then continued with the evidence of special Constable Butler, the evidence of Detective Baratta, and my review of C.L.’s video statement continuing until the lunch break on Tuesday, December 16.
[13] This was followed by two full days of argument, including an extensive reply by Crown counsel, as he insisted was his due, in spite of having consumed more than his fair share of time for his submissions made in chief and my suggestion that extensive reply was unnecessary.
[14] A jury was not picked during the first week since it was entirely consumed by these motions, and then, during the second week, as evidence and argument on these motions continued and with the Christmas holiday period looming, it became clear to me that no jury trial could commence before the holidays and have any prospect of being completed. With a second jury panel having hung around the courthouse for three full days, I personally spoke to and released that panel on Wednesday, December 17 to their overwhelming relief.
[15] On Thursday, December 18, at the conclusion of this voir dire, I ruled against the Crown and dismissed the application. I also declined the Crown’s invitation to issue a Material Witness warrant under s. 698(2) of the Criminal Code.
[16] In my view, the prerequisites for a Material Witness warrant have not been satisfied at this point. While C.L. is a witness who is likely to give material evidence in relation to the charges against the accused, a plain reading of s. 698 of the Code indicates that a warrant should not be made unless the witness has been subpoenaed first. Subsection 698(2) provides an exception to this general rule, permitting the issuance of a warrant to compel the attendance of a witness who will either not attend in response to a subpoena, if issued, or who is evading service of a subpoena. While C.L. may well be avoiding service, that in itself is not sufficient to justify the issuance of a warrant in the circumstances.
[17] In R. v. Scott,[^2] the Supreme Court noted that before issuing a warrant, a trial judge must be satisfied that proper attempts have been undertaken to serve the proposed witness with a subpoena. At this time, as explained in more detail in the context of my Khelawon ruling, I am not satisfied that meaningful efforts have been made to procure C.L.’s attendance in court, with or without a subpoena, or to explore whether other options, such as testifying from another location via video links, may encourage her participation in these proceedings. In my view, as in R. v. Silva,[^3] the police failed to exercise proper diligence in finding C.L. and bringing her to court. While C.L. may choose not to attend in response to a subpoena, the lack of diligent police work militates against my issuing a Material Witness warrant at this time.
[18] The matter is now adjourned for an 8- to 10-day trial with a jury, set to commence in May 2015. I am not seized of the matter, but this ruling and the others I issued are binding, subject to any change of circumstance that calls upon the assigned trial judge to issue further rulings.
[19] These are my full reasons for declining to grant the Crown’s application to have C.L.’s police statement and preliminary inquiry evidence admitted for the truth of their contents.
Summary of background facts relative to this application
[20] Following the preliminary hearing in July of 2013, the officer in charge of the case, Detective Nei, stayed in touch with C.L. through her mother. However, C.L.’s mother, C-L.H., would not provide direct contact information for C.L. Her daughter, C.L., instructed her not to let anyone know where she was. She was no longer residing in Peterborough.
[21] Then, on June 9, 2014, at approximately 10:23 p.m., and on the eve of trial as originally scheduled, C.L.’s mother spoke with Detective Nei. She told him that C.L. had stated that she was not going to come to court on her own.
[22] As a result of this disclosure and the instructions C.L. provided to her, C.L.’s mother was of the view, and testified on the voir dire that her daughter was running away and was scared. When this application was originally filed the next day, on June 10, 2014, a date that I note was more than six months before this application was finally heard, neither Detective Nei nor C.L.’s mother, C-L.H., had had contact with C.L. for some days. As her mother predicted, C.L. did not come to court at the commencement of the trial in June. That resulted in the adjournment of that trial date. It resulted in the Crown bringing this application. At least at that time, neither Detective Nei nor C.L.’s mother was aware of C.L.’s whereabouts. As the evidence of the voir dire and related disclosures ultimately showed, however, that was no longer the case by the time this application was heard in December 2014.
[23] Nonetheless, it is plain to my eye that only limited efforts have been made to make contact with C.L. since June 2014. The Crown provided notes from Detective Nei that purported to set out the “efforts” that have been made to contact C.L., but if any effort was expended, it was neither extensive nor strenuous. Detective Nei’s notes are less than a page long and show no personal attendance on his part at locations that C.L. was known to frequent. More important was the notes provided to Detective Nei by P.C. Jacinthe Dion of the Ottawa Police Service.
[24] It turned out (as shown by P.C. Dion’s notes) that C.L. was known to be in the Ottawa area. She had plainly been seen attending her mother’s residence from time to time during the summer and autumn of 2014 for Sunday evening family dinners. While she may have “gone west” initially, she certainly returned to Ontario and Ottawa in particular, during the autumn, and was living there or nearby in the time leading up to this December trial date. At least she had been until the police came to the residence around the end of October when they were looking for C.L. and spoke to her uncle, C-L.H.’s brother. He also evidently lived at the mother’s home. Indeed, while this voir dire was ongoing, I learned that C.L. had surfaced. The day before I was told she had been located, she was stopped by the police in the company of her boyfriend, who is himself a person of interest relative to suspected gun possession offences. However, she was not detained long enough to permit anyone to actually obtain and serve her with a subpoena in this matter.
[25] Further, P.C. Dion’s notes, admitted on consent in lieu of her being required to come from Ottawa to testify, show further interactions between C.L. and the police at the very time this hearing was taking place. They also show clearly that C.L. did not want to testify. However, if they are alleged to show that she would not, or could not be subpoenaed or issued a material witness warrant to attend to testify at the trial of these accused, the notes are not persuasive to me. Those notes record that:
(i) C.L. was found at her mother’s house on Sunday, December 14, 2014, at 6:33 p.m.
(ii) C.L. “told you guys I don’t want anything to do with it.” Told you from the beginning.
(iii) C.L. started crying and said police had “dragged” her Mom into it when she was not supposed to know.
(iv) C.L. yelling and crying that police are re-victimizing her and telling them to leave her alone.
(v) C.L. storms upstairs, in spite of her mother assuring the police that “she doesn’t live here” and “doesn’t come around anymore” because she “doesn’t want to deal with this.”
(vi) C.L. comes back downstairs when she hears the officers asking her mother if she lives there, and starts to yell at them again to leave.
(vii) Officers did not obtain an address for C.L., her uncle would not talk to them, and her mother was very “subdued.”
[26] The Ottawa police officers left the residence at 18:37, allegedly only three minutes after they arrived, but they made no efforts to subpoena C.L. thereafter. These occurrences were reported to Detective Nei. These events occurred on the Sunday, only two days after her mother, C-L.H., testified before me that she did not know where her daughter was, and that C.L. had not been coming around since at least October because of fear that she would be found by the police. Against this background, I found that C.L.’s discovery at her mother’s residence profoundly undermined the credibility of her mother’s evidence, at least apart from her plain and obvious concern for her daughter.
Positions of the parties on the voir dire
[27] Crown counsel argued here that C.L.’s video statement was taken under oath and with cautions by a highly respected and particularly experienced senior police officer, Detective Michele Baratta. It was taken on the same day that the offences are alleged to have occurred. C.L.’s preliminary hearing evidence was also taken under oath. She was vigorously cross-examined at that time by counsel for each of the respondents. Those counsel are the same individuals presently representing the two defendants in this matter.
[28] As such, Crown counsel argued that the dual threshold criteria of reliability and necessity were met on a balance of probabilities standard under the principled exception to the hearsay rule, and that accordingly, the video statement and preliminary hearing transcript of C.L. should be admitted into evidence for the truth of their contents.[^4]
[29] Crown counsel argued that “C.L.’s evidence is unavailable.” He claimed that her location “was presently unknown” and thus her attendance at court could not be obtained on these important and serious charges. Moreover, Crown counsel argued that the video statement provided by C.L. exhibits circumstantial guarantees of reliability, including (i) that the statement is a video statement, thus allowing the trier of fact to observe the interview; (ii) that the statement is under oath; (iii) that C.L. was given the KGB warning; and (iv) that the statement was obtained on the same day as the events in question. The preliminary hearing transcript of C.L.’s evidence taken in March 2013 was also claimed to meet the threshold test for reliability as it was taken under oath, in court, and subjected to contemporaneous cross-examination by counsel for the respondents.
[30] Both Defence counsel opposed this application vigorously, but they resisted the Crown’s position in different ways.
[31] Counsel for A.A. argued that the Crown cannot establish necessity in the circumstances of this case, because the mere unwillingness of a witness to appear in court at trial is, of itself, insufficient to amount to necessity. He claimed as well that there was no meaningful opportunity to cross-examine C.L. on the truth of her out-of-court statement,[^5] and as such, the statement was not reliable. Indeed, in his submission, if I were to admit both the videotaped statement of C.L. and the preliminary inquiry transcript relative to her testimony at that time as evidence of the truth of their contents, the former would effectively be nothing more than self-serving evidence of prior consistent statements in the latter. In his submission, he argued this must necessarily trigger concerns relative to due process: see R. v. Wilson.[^6]
[32] Finally, counsel claimed that regardless of whether the prior statement and the preliminary hearing testimony of C.L. satisfy the conditions of admissibility, I should exercise “residual discretion” to exclude the hearsay statements and transcripts of testimony as evidence at the trial of these accused in order to ensure trial fairness in the circumstances of this case, in purported reliance on R. v. Hawkins.[^7]
[33] Counsel for A.D. took a more interesting route in his opposition to the granting of the order, a position founded firmly in the evidential deficiencies he says are present in this case relative to the efforts made by the police authorities to actually find C.L., subpoena her and actually bring her to court. In his submission, the case law is plain that the Crown must be able to show that reasonable efforts were undertaken to locate the witness and bring her to court. In this case, however, he argued that only limited efforts have been made to make contact with C.L., and that those do not amount to the taking of all reasonable steps to cause the witness to be present for the trial. Moreover, even if they might have amounted to reasonable efforts in the context of an application had it been heard last June, there is no adequate evidence of further meaningful efforts having been made during the six-month interim period. He claims this reality necessarily dooms this application to failure.
Analysis and findings
[34] It is a fundamental presumption of our law that hearsay evidence is inadmissible. That presumption has relaxed over the years as the principled exception to the rule against hearsay has developed in the courts. Today, applying that exclusionary rule in the context of alleged sexual assaults like these, in circumstances where evidence would not otherwise be available from the complainant, hearsay evidence may be admitted under the principles established in R. v. Khelawon.[^8] In order to be granted the order it seeks, the Crown bears the burden of proving that the evidence should be received by the court for the truth of its contents in lieu of the in-person testimony of C.L. on the basis that the receipt of the evidence is both necessary and reliable.
[35] Plainly, the mere unwillingness of a witness to appear in court at trial is, of itself, insufficient to amount to necessity. The Supreme Court of Canada observed in R. v. F. (W.J.)[^9] that fear or disinclination to testify, without more, does not constitute necessity. Here, plainly C.L. is a material witness in this matter as one of the two complainants for the prosecution, and no evidence presented demonstrates any other concerns regarding her testimonial capacity or competence.[^10]
[36] Consequently, the obvious preference of our law is that C.L. attend in person to give her testimony herself, instead of being permitted to avoid confronting the individuals who she alleges serially raped her or providing her evidence herself and in open court. I note as well that there is no indication whatsoever of it ever having been suggested to her that she could give her evidence from outside the courtroom by video link as contemplated in s. 714.1 of the Code. It is unknown if those alternatives have ever been explained to her, or if she has been asked if they would assist her to give her evidence in this case without fear for her safety.
[37] Turning to reliability, counsel for A.A. submitted that the videotaped statement of C.L. is unreliable in any event as he claims there was no meaningful opportunity to cross-examine her on the truth of her out-of-court statement.[^11] He claimed that permitting both the videotaped statement of C.L. and her preliminary inquiry transcript into evidence at trial would effectively allow the videotaped statement to become self-serving evidence as a prior consistent statement of the latter.
[38] I disagree with that contention. While the original statement may not have been the subject of cross-examination, there is no doubt that C.L. was vigorously cross-examined at the preliminary inquiry. Indeed, it is the suggestion of counsel for A.D. that it is precisely because she did not respond as well as Crown counsel might have hoped in giving her evidence at the preliminary inquiry that she fears giving her own testimony at trial.
[39] Further, given that Crown counsel would not be permitted to engage in a form of compurgation or oath-helping by bootstrapping the earlier statement as corroborative of C.L.’s later preliminary inquiry testimony, the corollary is not true. She could be cross-examined on the differences between what she said in her initial statement to Detective Baratta and what she said at the preliminary inquiry, and any differences between the two accounts could be fully explored at trial even if the prior hearsay statement and evidence were admitted as true. As such, it is hard to see merit in the concern raised by defence counsel arising out of the Wilson case, at least in the circumstances here.
[40] Finally, even if the hearsay statements and preliminary hearing testimony of C.L. satisfy the conditions of admissibility established under the test in Khelawon, counsel for A.A. argued that I should nevertheless exercise “residual discretion” to exclude the hearsay statements and transcripts of testimony as evidence at the trial of these accused in order to ensure trial fairness in the circumstances of this case, in reliance on R. v. Hawkins.[^12]
[41] This is also a position I reject. First, there is no reasonable basis of comparison between Hawkins and this case. The critical foundation for the reasoning and decision of the Supreme Court in that case was that the witness, Ms. Graham, was unavailable to testify as a result of her spousal incompetency and there was no other means of presenting evidence of a similar value before the court. It was also relevant that she had recanted the earlier statement she made before she married the accused and thereby became incompetent to testify against him.
[42] The requirement of reliability was satisfied in Hawkins, like in this case, because the hearsay statement made by Ms. Graham was made in circumstances that provided sufficient guarantees of its trustworthiness. A witness’s testimony before a preliminary inquiry will generally satisfy the test of reliability. For that reason, the absence of the witness at trial simply goes to weight, not admissibility, but that is considered only if the necessity criterion is met.
[43] However, in this case, as I explain below, there is no legal impediment like the spousal incompetency rule that met the necessity test as it did in Hawkins, nor at present is there a factual impediment.
[44] In Hawkins, after both necessity and reliability were established, the trial judge chose to exercise his residual discretion to exclude the statement because he considered its probative value to be slight, but found that undue prejudice might result to the accused. Importantly, and contrary to the position of counsel for A.A. on this trial, the Supreme Court ruled that the trial judge should not have exercised his discretion to exclude the evidence of Ms. Graham’s testimony before the preliminary inquiry, because in its view the risk of undue prejudice arising from her testimony did not substantially exceed the potential probative value of that evidence at trial. But again I note that consideration could only arise where both tests have been met. Here, as explained in more detail below, the necessity test was not met and so the argument of defence counsel is hypothetical. I find that there is no reasonable comparison that can be made between the two cases and I reject the submissions of counsel for A.A. based on Hawkins as well.
[45] So in summary, looking first briefly at the issue of reliability, in my view, both the videotaped statement and the preliminary inquiry evidence are reliable in this case, and if the application were to succeed, they would have been admitted for the truth of their contents.
[46] Turning to the issue of necessity, however, I am confronted by a very different situation. Certainly necessity will be present when a witness or declarant has died or becomes incompetent or physically incapable of testifying, or indeed, as in Hawkins, where the witness marries the accused and becomes incompetent to testify against him. None of those circumstances is present here. Similarly, necessity may be met in the circumstances of a KGB statement where the witness recants from an earlier statement or refuses to testify, or where in the case of a child, the witness is unable to testify.[^13] In R. v. Terezakis,[^14] referring to R. v. F. (W.J.),[^15] the court observed at para. 10 that:
…The physical unavailability of a witness, whether compellable or not, is not of itself sufficient to establish necessity. “Rather, it must be shown that hearsay is the only available means of putting the evidence before the court”: R. v. F (W.J.). The court went on to say: “It is a matter of whether on the facts before the trial judge, direct evidence is not forthcoming with reasonable efforts.” It is not in every case that evidence need be called on the issue of necessity; necessity may be apparent from the circumstances such as the case of a child witness being unable to testify. However, in cases where it is not self-evident from the circumstance the court “must have a foundation for ruling that necessity is established”; R. v. F (W.J.)(supra)
[47] I am far from satisfied that reasonable steps have been taken here to subpoena and produce the witness. Directly on point is the language of MacLean Prov. Ct. J. at paras. 11-13 of Terezakis:
11 Reasonable efforts must be made to either locate a witness or compel a witness to testify before concluding that admitting hearsay is necessary; R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365. (at para 57).
12 The Crown submits the evidence is sufficient to establish:
Medina [the witness] is physically unavailable;
His specific location is unknown and,
Reasonable steps have been taken to locate him but such efforts have been unsuccessful.
The Crown submits therefore the necessity requirement has been met.
13 The evidence on the voir dire does not establish that reasonable efforts have been made to secure the attendance of Medina. Oger [a police officer] testified at one point he was not concerned about Medina’s attendance at court. However, in the circumstances and particularly in relation to Medina’s background and his involvement in the events related to these charges, the police and the Crown ought to have been concerned about Medina’s attendance at court. In view of that, the Crown ought to have taken reasonable steps earlier in the process to secure Medina’s attendance. This would not guarantee Medina’s attendance in court but it would have been a reasonable and prudent thing to do to increase the likelihood that he would attend. Oger took steps to maintain contact with Medina and although on his retirement he requested the Calgary police to keep an eye on Medina, there is no evidence that anyone on behalf of the police or the Crown sought to maintain that contact. No steps were taken to secure Medina’s attendance notwithstanding they could have easily located him through Oger in the summer of 2004 after a trial date had been set. A subpoena could have easily been served on Medina compelling his attendance at trial. If he avoided service or indicated at that time he would not attend, a material witness warrant could have been sought. Instead nothing was done until September of 2005 when Jadis began his inquiries. This was more than a year after Medina’s last contact with Oger and seven months after his last contact with the Calgary police. In addition, the inquiries and efforts to locate Medina after September 2005 to secure his attendance did not demonstrate reasonable diligence in the circumstances.
[48] I am not satisfied that the Crown has met the test of necessity in the circumstances of this case as it is enunciated in the case law. There is little evidence here that the police did anything meaningful to try to secure the attendance of C.L. at this trial during the last six months, before the December 14 occurrence, other than to simply speak with her once, speak with her uncle once, half-heartedly have a service officer hang out near her mother’s house for brief and sporadic episodes of so-called “surveillance,” and hope that she would attend.
[49] Moreover, I do not even suggest that the police or Crown counsel assumed that she would attend. Quite the contrary, it seems evident that C.L. was not going to attend if she could avoid it. Her mother simply told the authorities that she would not, but she was arguably protecting her relationship with her daughter as much as anything, and her evidence is not credible or reliable proof that C.L. herself would not attend. Her mother also told the authorities that C.L. had not attended her house since October 2014 because of concern that she would be seen by the police. Little more could undermine that testimony than the fact that C.L. was seen by the police, at her mother’s house, and spoke to them at that time in the middle of the very voir dire held to determine if it was necessary to admit evidence on this trial of her allegations other than through her viva voce testimony.
[50] Nor is the evidence contained in the notes of P.C. Dion adequate for this purpose. It simply shows that the police spoke to C.L. and that she was yelling at them to get out of her life and leave her alone. However, nothing in those notes suggests that an effort was made to impress upon C.L. that she was a complainant and needed to testify herself absent compelling reasons to the contrary. Nothing in those notes indicates that efforts were made to bring her in as a material witness, notwithstanding that P.C. Dion described her as such.
[51] The Crown argues that steps that were taken to bring C.L. to trial to testify were reasonable, and that once that test is met, the necessity requirement is established. I disagree. While a subpoena was issued earlier in the fall of 2014, efforts to serve it were half-hearted at best. They were more characteristic in my view of simply going through the motions than being intent on actually locating C.L., serving her with a subpoena or a material witness warrant, and bringing her before the court to determine whether she truly cannot testify, or is instead trying to avoid repeating the “unpleasantness” she may have experienced in cross-examination at the preliminary inquiry.
[52] The claimed inability of the complainant C.L. to attend for trial first came to the attention of defence counsel on June 9, 2014. Crown counsel wrote to the defence to advise as follows:
Thank you for your courtesy at court today. I am writing to advise you of a development in this case. Through this morning, my information had been that [C.L.] was intending to attend for trial. She currently lives out of province. I was advised after we last spoke to the matter in court that she does not intend to attend. We do not have any specific information about her whereabouts. We are seeking more direct contact with Ms. [C.L.] to see if her attendance can be obtained. Should she not attend, the Crown may seek to proceed with a Khelawon application with respect to Ms. [C.L.]’s video statement and/or her preliminary hearing transcript. (my emphasis.)
[53] Whether or not reasonable steps were taken must necessarily take into account all of the conduct undertaken to try and bring the reluctant witness to trial, in this case over a period of some months between the original trial date in June and the time that this voir dire was held. I am not satisfied that the efforts made by the police to bring the witness to trial meet the test of being reasonable.
[54] Moreover, there are fundamental issues of trial fairness, which to my mind weigh against granting the Crown its application in these circumstances at this particular time. I also bear in mind in making that statement that the fact that this trial will now inevitably and necessarily be adjourned to another date provides yet another further period of time for the Crown to make more diligent and sustained efforts to ensure the attendance of the complainant C.L., or indeed to fully exhaust all of the remedies that are available to it if C.L. proves to truly be unavailable after all of those efforts have been applied.
[55] Finally, as I have noted, there was no evidence provided before me having any cogent persuasive value that the complainant was ever seriously spoken to about the opportunities that exist for her to give her testimony in a location separate from this courtroom as stipulated under the Code, in the event that might prove to be necessary, as indeed it may be in this case. That, however, is merely an aside. I found my decision on the absence of the effort provided to bring the witness to trial meeting the test of being reasonable, as I understand it on the whole of the evidence and under all of the applicable case law. As such, since the Crown has not established necessity, the application is necessarily dismissed.
Michael G. Quigley J.
Released: April 27, 2015
CITATION: R. v. A.A. and A.D., 2015 ONSC 2467
COURT FILE NO.: CR-13-40000552-0000
DATE: 20150427
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
A.A and A.D.
Defendants/Respondents
REASONS FOR RULING
Re: Voir Dire #3: Application for admissibility of certain evidence under R. v. Khelawon
Michael G. Quigley J.
Released: April 27, 2015
[^1]: 2006 SCC 57, [2006] 2 S.C.R. 787.
[^2]: 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at para. 48.
[^3]: [2001] O.J. No. 5458 (O.C.J.).
[^4]: See R. v. Khelawon, above, at paras. 47, 91; R. v. Dupuis, 2014 ONSC 2750, [2014] O.J. No. 1824, at paras 90-105; and R. v. Carroll, [2009] O.J. No. 4405, at paras. 15-25 (S.C.J.).
[^5]: See R. v. Dui (2000), 2000 CanLII 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770 (Ont. C.A.).
[^6]: R. v. Wilson, 2001 BCCA 391,156 C.C.C. (3d) 74, aff’d 2002 SCC 69, [2002] 3 S.C.R.629.
[^7]: 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at p.1089.
[^8]: 2006 SCC 57, [2006] S.C.J. No. 57.
[^9]: 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, at para. 44.
[^10]: R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178.
[^11]: See R. v. Diu, at paras. 80-82.
[^12]: 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at p. 1089.
[^13]: See R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740.
[^14]: 2006 BCPC 187, [2006] B.C.J. No. 1070.
[^15]: (1999), 1999 CanLII 667 (SCC), 138 C.C.C. 3d 1 (S.C.C.).