R. v. KAZENELSON, 2015 ONSC 477

DATE: 20150122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VADIM KAZENELSON

Rochelle Direnfeld and Elizabeth Moore, for the Crown

Louis P. Strezos, Shannon O’Connor and Kate Woodcroft, for Vadim Kazenelson

HEARD: January 15, 2015

Ruling re the Application of the ‘Entire Statement’ Rule

MacDonnell, J.

[1] This is a ruling with respect to whether the ‘entire statement’ rule requires the Crown to adduce as part of its case a video-recorded statement that Mr. Kazenelson made to Detective Kevin Sedore at 23 Division on the evening of December 24, 2009.

A. The Context

[2] Mr. Kazenelson is being tried without a jury on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The charges arise from an incident that occurred on December 24, 2009 at a high-rise apartment building at 2757 Kipling Avenue. At the time, a project was underway to repair and restore the concrete balconies of the building. In order to gain access to the balconies the workers were utilizing swing stages suspended from the roof of the building. At about 4:35 p.m. on December 24, a stage on which a number of workers were standing suddenly broke in half and five workers fell 13 stories to the ground. Four of the workers were killed and the fifth was severely injured.

[3] There is no dispute that Mr. Kazenelson was one of the persons who were working on the balcony restorations and that he was present at the site at the time of the collapse of the swing stage. The position of the Crown is that Mr. Kazenelson was the supervisor of the workers who were on the stage and that as such he had a duty, pursuant to s. 217.1 of the Criminal Code, to take reasonable steps to prevent harm to those workers. The Crown alleges that Mr. Kazenelson breached that duty, that the breach showed a wanton or reckless disregard for the lives or safety of the workers, and thus that Mr. Kazenelson is guilty of the five counts of criminal negligence before the court.

[4] The issue with respect to the ‘entire statement’ rule arises in the following circumstances. As one would expect, the situation at ground level after the accident quickly became chaotic as police and other emergency personnel descended on the area in an effort to assist the fallen workers. Four of the workers were pronounced dead at the scene. The fifth was rushed by ambulance to Sunnybrook Hospital. From the perspective of the police, the immediate concern was to identify both the victims and any witnesses, especially other workers. Mr. Kazenelson and some of those other workers were gathered in the parking lot adjacent to the area where the victims had fallen and they were spoken to soon after the police arrived.

[5] While at the scene, Mr. Kazenelson had brief conversations with Constable Ellis, Constable Karakochuk and Detective Sedore. In those conversations, he identified himself as the “supervisor” or the “person in charge” of the work site. None of the officers asked Mr. Kazenelson any questions at this time about what had happened nor did he volunteer any such information. I will refer to what Mr. Kazenelson said to the officers at the scene as ‘the first statement’.

[6] Detective Sedore asked Mr. Kazenelson and the other workers to come to 23 Division so that their witness statements could be taken, and all of them agreed to do so. Upon arrival at the station, the workers were asked to wait in the Community Room while arrangements were being made to interview them. At some point between 6:30 p.m. and 7:00 p.m., Detective Sedore had a brief conversation with Mr. Kazenelson in the Community Room in relation to the identity of the worker who had been transported to hospital (Dilshod Marupov). Once again, no questions were asked by Detective Sedore about the accident and Mr. Kazenelson did not volunteer any information. I will refer to the exchange between Mr. Kazenelson and Detective Sedore at this time as ‘the second statement’.

[7] At about 8:10 p.m. Detective Sedore took a statement from Mr. Kazenelson in an interview room at the station. The interview was videotaped. In the course of the interview Mr. Kazenelson was asked, for the first time, about the accident and he provided an explanation. The interview was about 35 minutes long and ended at about 8:45 p.m. I will refer to what was said in the course of the interview as ‘the third statement’.

B. The Issue

[8] The Crown proposes to introduce, as part of its case, the first and second statements but not the third. The position of the Crown is that the third statement was separate and apart from the first two, that it was self-serving and that the Crown is not obliged to adduce it. Mr. Kazenelson submits that the three statements were in reality one continuing statement and that the Crown cannot pick and choose the portions that it wishes to adduce. If the Crown wants to rely on part of the continuing statement, he submits, it must introduce all of it.

C. The Applicable Principles

[9] Generally speaking, it is for the Crown to determine whether the pre-trial statements of an accused person should be adduced in evidence. In R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, Justice McIntyre explained, at paragraph 24, that this rule “is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination.” It is also based in part on the view that prior consistent statements lack probative value and are, in most cases, self-serving: R. v. Stirling, 2008 SCC 10, at paragraph 5; R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at page 643.

[10] It is well established, however, that where the Crown elects to adduce a pre-trial statement of an accused, it must introduce the entire statement. In R. v. Jackson, 1980 CanLII 2945 (ON CA), [1980] O.J. No. 1468 (C.A.), Justice Martin explained that “where a statement is partly inculpatory and partly exculpatory, and the Crown wishes to use the inculpatory part of the statement, the whole of the statement must be put in, and the statement then becomes evidence for the accused as well as against him”. See also R. v. Mallory, 2007 ONCA 46 at paragraph 203.

[11] The ‘entire statement rule’ is grounded in considerations of fairness and common sense. It would be quite misleading to permit the Crown to select for admission those parts of an accused’s statement that support the Crown’s case and to ignore the parts that may favor the defence. The Crown must take the good with the bad, and “must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances”: Mallory, supra, at paragraph 203.

[12] Where an accused has made several pre-trial statements, the entire statement rule does not ordinarily require the Crown to introduce all of them. The Crown will only be required to do so if the individual utterances are so closely related that they are, in effect, part of one statement. That may be the case, for example, if they can be characterized “as being ‘part of the same narrative’… or ‘part of a continuum’… or are ‘so bound up together as to form in substance one statement…’”: R. v. Jacobson, [2004] O.J. No. 1956 (Sup. Ct.) [citations omitted]

[13] The determination of whether a series of utterances should be considered to be one statement will necessarily be a case-specific exercise: R. v. Cybulski, [1974] M.J. No. 43 (C.A.), at paragraph 4. In Mallory, the Court of Appeal referred to Cybulski and stated, at paragraph 206, that “in determining whether statements qualify for separate treatment, factors to consider include the time gap between the utterances, the nature and form of the respective utterances, and the circumstances under which they were made.”

D. Application to this Case

[14] A number of factors tend to support a characterization of all of the utterances of Mr. Kazenelson as parts of a single statement: the elapsed time between the making of the first statement and the beginning of the third was about 3 to 3½ hours; while Constables Ellis and Karakochuk were only involved in the first statement, Detective Sedore was involved in all three; and all three were made in the course of the initial investigation of the collapse of the swing stage.

[15] Other factors tend to point in the other direction. The statements were made in three separate locations – the parking lot at 2757 Kipling, the Community Room at 23 Division and an interview room in the station. The first two statements were brief and informal exchanges, whereas the third was more of a formal interview. More importantly, the nature of the first two statements was quite different from that of the third. The primary focus of the officers who spoke to Mr. Kazenelson at the time of the first two statements was the identification of the victims and any potential witnesses. None of the questions asked and none of the answers given related to what had happened or how it had happened. Only in the third statement did Detective Sedore turn to those issues.

[16] On balance, those considerations would justify treating the third statement as separate from the first two. However, regard must also be had to the evidentiary purpose for which the first two statements, and in particular the second statement, would be offered. In the second statement, Mr. Kazenelson told Detective Sedore that he did not know the name of the worker who had been rushed to hospital as that person had only started working that day. The Crown proposes to ask the court to infer from Mr. Kazenelson’s lack of knowledge that he had not taken proper steps to ensure the injured worker’s safety. In effect, the Crown will ask the court to treat what Mr. Kazenelson said in the second statement as an admission of negligence. The third statement, which the Crown does not intend to adduce, contains much more about how Mr. Kazenelson carried out his duties as a supervisor. In my view, the use that the Crown proposes to make of the second statement knits it together with what Mr. Kazenelson said in the third. In the circumstances, it would be unfair to permit the Crown to hive off the second statement from the balance of what Mr. Kazenelson said to Detective Sedore at 23 Division. Therefore, if the Crown wishes to adduce the second statement, it must also adduce the third.

[17] I reach a different conclusion with respect to the first statement. The only relevant utterances that Mr. Kazenelson is alleged to have made in his interaction with the police at the scene of the accident were statements identifying himself as a supervisor or the person in charge of the job site. The Crown intends to rely on those statements as evidence that Mr. Kazenelson was someone with “the authority to direct how another person does work or performs a task” within the meaning of 217.1 of the Criminal Code and thus that he was under a duty to take reasonable steps to prevent bodily harm to those working under him. As I understand it, the Crown does not suggest that Mr. Kazenelson’s identification of himself as a supervisor constitutes evidence that he breached that duty. In the third statement, Mr. Kazenelson confirmed that he was a supervisor, but he did not qualify what he said at the scene in that respect. Fairness does not require that the video interview go in to modify or explain the utterances in the first statement. Accordingly, the Crown may adduce the first statement without being obliged to also adduce the third.

MacDonnell, J.

Released: January 22, 2015