CITATION: R. v. F.O., 2016 ONSC 1898
COURT FILE NO.: YC 30000005-14
DATE: 20160317
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under s.110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
F.O. (a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
COUNSEL: T. Pittman & S. Heeney, for the applicant G. Zoppi & C. Pearce, for the respondent
HEARD: February 23, 25 & 29, 2016
Nordheimer J.:
[1] The prosecution seeks to place into evidence, for the truth of its contents, a prior statement made by a witness pursuant to the principled exception to the hearsay rule enunciated in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 and its predecessor cases.
[2] Given that the accused was a young person at time of the events, I shall refer to him in these reasons simply as the respondent. The witness in question was also a young person at the time. His identity is consequently also entitled to protection.[^1] The witness has a brother who is relevant to the factual circumstances giving rise to this application. While it appears that the brother was not a young person at the time, identifying the brother would necessarily identify the witness. To protect both their identities, I would normally refer to them by their initials but, in this case, their initials are the same. Consequently, another method is required. Both of these individuals acknowledged that they were known by "street names". Those street names, along with the street names of other witnesses (and the respondent), have been referred to many times in the course of the trial. Consequently, for the purposes of these reasons, I will refer to the witness and his brother by their street names. To that end, the witness was known as "Gritty" and his older brother was known as "Gifted".
Background
[3] The respondent faces trial on two counts of second degree murder, one count of attempted murder, one count of reckless discharge of a firearm and two counts of aggravated assault.[^2] The charges arise out of the events of July 16, 2012. On that day, a community barbeque/block party was being held in a housing complex on Danzig Street in the Scarborough area of Toronto. At approximately 10:40 p.m., gunfire erupted within the party. Upwards of thirty shots were fired. As a result of the gunfire, two people were killed and more than twenty others were wounded.
[4] The Danzig complex is part of the Galloway area of Scarborough. As the evidence alluded to, there is a long standing rivalry between some individuals who reside in the Galloway area and some persons who reside in the Malvern area of Scarborough. The Chester Le area is another part of Scarborough and some individuals from that area are perceived to be aligned with individuals from the Malvern area. Consequently, individuals from Chester Le would also be at odds with the Galloway group.
[5] All of that is relevant to the fact that Gifted is said to be a member of what I have referred to as the Galloway group. The block party was being hosted by Gifted along with others. Some witnesses have said that Gifted, along with others associated with him including his brother, Gritty, made it clear that individuals from Malvern were not welcome at this block party, nor were individuals who were perceived to be associated with people from Malvern. In fact, there is evidence that, at some point during the party, an announcement was made to the effect that people from Malvern were not welcome and should leave. In addition, some individuals from the hosting group were checking people who came to the party and asking them where they were from. A number of witnesses gave evidence of having been so checked. If any such persons said that they were from one of these unwelcome areas, they were asked to leave. There is evidence before the jury that both Gifted and Gritty were among the individuals who were going around checking on the territorial affiliations of individuals who were coming to the party.
[6] The prosecution's central allegation is that the respondent instigated the gunfight. In particular, it is alleged that the respondent went to the block party in search of Gritty, who he apparently knew. Very shortly after arriving at the party, the respondent encountered Gifted. Gifted knew that the respondent was from Chester Le and thus was not welcome at the party. Gifted told the respondent to leave. In doing so, Gifted produced a handgun. An older person, who was present but whose identity is unknown, told Gifted to put the gun away because there were children present. Gifted did so but it is alleged that the respondent then produced a handgun and fired a number of shots at Gifted. Gifted was struck by two of these shots. As Gifted lay on the ground wounded, he took out his gun and fired it continually in the direction of the respondent, striking the respondent in the leg. Subsequent forensic examination of the scene found eleven bullet casings that matched to the gun that Gifted is alleged to have fired. The gun, itself, was never found. As this transpired, another unknown person, who is alleged to be affiliated with Gifted, or at least with the Galloway group, produced an Uzi submachine gun and also opened fire. Fourteen bullet casings were found that matched to this Uzi submachine gun.
[7] By many accounts, there were more than two hundred people at this block party. Most of them were congregated in a relatively small area, between two rows of townhouses, in the Danzig housing complex where this gunfire broke out. The two deaths and numerous injuries were the consequence of the gunfire that is alleged to have emanated from Gifted, and the gunfire that emanated from the unknown person with the Uzi. Gifted remained wounded at the scene until some friends took him to a vehicle in a nearby parking lot, placed him in the vehicle and attempted to leave the area to go to a hospital. However, because of the chaos at the scene, as that vehicle attempted to speed away from the area, it collided with another vehicle on Danzig Street. Ironically, the car that this vehicle hit was an unmarked police car that was responding to the sounds of the gunshots. Gifted was taken by a police officer, placed on a stretcher, put into an ambulance, and taken to Sunnybrook Hospital.
[8] There is no dispute on the evidence that the respondent was at the party and that he was wounded in one of his legs by the gunfire. The respondent was also taken to hospital by ambulance, accompanied by a police officer. At the hospital, the respondent told this police officer that, after being shot, he managed to run some short distance from the scene of the shooting before collapsing.
[9] Approximately six weeks later, on September 2, 2012, while the respondent was riding a bike near his home in the Chester Le area of Scarborough, a lone male approached the respondent and fired one shot at him. That male was Gritty. It is clear that Gritty intended to kill the respondent but apparently his gun jammed, such that Gritty only managed to fire one shot. That shot, coincidentally, also struck the respondent in one of his legs. The respondent managed to run home. Gritty ran off.
[10] Gritty was subsequently arrested and charged with the attempted murder of the respondent. Gritty eventually pleaded guilty to that, and other, offences and was sentenced to seven years imprisonment. Gritty was serving that sentence at the time that he was called as a witness at this trial.
[11] As part of the investigation of the shooting at the Danzig block party, the police received judicial authorization to intercept the private communications of a number of people. As part of that authorization, the police were permitted to intercept the private communications of individuals while they were being held in the cells of the Scarborough courthouse. On a day when the police knew that Gritty was being taken to the Scarborough courthouse, they placed a listening probe in a particular holding cell. There was also a video camera outside of the cell. In addition, an undercover police officer was placed in the cell next to the one that Gritty was to be housed in. That officer was "body packed", that is, he wore a recording device as a backup to the probe in the cell.
[12] Pursuant to the judicial authorization, during his stay in the holding cells at the Scarborough courthouse on October 24, 2012, Gritty was intercepted talking to an individual, who was in another holding cell, about what happened at the Danzig block party, involving the respondent and the shooting of his brother, Gifted. Gritty describes the events surrounding the shooting of his brother and then explains that is why he sought out the respondent and attempted to kill him.
[13] Gritty was called as a witness at this trial. Gritty said that he did not have any firsthand knowledge of the shooting. Indeed, Gritty said that he was not present at the time that the shooting took place. The prosecution then sought to cross-examine Gritty on the intercepted statement pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. The defence objected to that permission on the basis that the intercepted statement was not inconsistent because Gritty now alleged that what he had said in the intercepted statement was largely made-up or drawn from information he had heard, either through the media or by way of rumours in his neighbourhood. I found that the intercepted statement was, on its surface, inconsistent with the evidence that Gritty had given at trial and, consequently, I permitted Crown counsel to cross-examine Gritty on a portion of the statement.
[14] I should explain why I say that I permitted cross-examination only on a portion of the statement. There are essentially three parts to the intercepted statement. The first occurs in the morning when Gritty is intercepted speaking about other things unrelated to the Danzig shooting. The second occurs in the afternoon and includes Gritty's description of what happened at the Danzig block party that led to the shooting. The third essentially surrounds the second and that is Gritty's description of his effort, some weeks later, to find the respondent and attempt to kill him in retaliation for the fact that he believed that the respondent had shot his brother. I ruled that the prosecution ought not to be allowed to cross-examine Gritty on the third portion of the statement, for two reasons. One was that it was not directly germane to the alleged inconsistency regarding the description of what happened at the block party, and the other is the significant prejudice to the respondent from the jury finding out that Gritty had gone out to avenge his brother, by attempting to kill the person who Gritty believed had shot his brother. I was very concerned that, if the jury received that information, at that point and in that particular context, they might, either consciously or unconsciously, let Gritty's belief, as to the identity of the Danzig shooter, taint their own analysis of who they would conclude was the shooter. I made it clear, however, that if the prosecution subsequently sought permission to put the intercepted statement into evidence for the truth of its contents (as the prosecution did) then, if that application was successful, both the second and third parts of the statement would have to be admitted, because the third part would be relevant to the jury's evaluation of whether they would rely on the second part of the statement.
[15] As I have mentioned, the cross-examination on the second part of the intercepted communication led Gritty to say that he had fabricated most of what he had said regarding what had happened that led to the shooting at the block party. He contended that he fabricated his story about what happened in order to "big" himself up, that is, to inflate his image so that other youths, who were being held in the same youth detention facility, would hold him in greater regard or respect. Gritty contended that it was important for survival in the youth detention facility for other youths to be impressed by, or afraid of, other youths. Put another way, there was a "pecking order" in the youth detention facility and Gritty intended to advance himself to the upper echelons of that pecking order. Consequently, Gritty said that he told this fabricated story about the Danzig shooting in order to impress these other youths. Gritty repeated that he was not present at the time of the shooting and did not see anything. Of some importance is the additional fact that Gritty also said that he had never discussed the shooting with his brother or, apparently, with anyone else. Rather, Gritty said that he made up his story from the sources I earlier mentioned – media reports and rumours.
[16] Thereafter, the prosecution brought its application to have the second and third parts of the intercepted statement admitted for the proof of their contents. At the end of the argument of that application, I advised counsel that I had concluded that the statement was admissible under the principled exception to the hearsay rule. I said I would provide my reasons for that conclusion at a later date. I now provide those reasons.
Analysis
[17] The principal authority governing this issue is Khelawon. Certain principles are either established, or refined, in that decision including:
(i) the defining features of hearsay are that the statement is being adduced to prove the truth of its contents and there is absent a contemporaneous opportunity to cross-examine the declarant;
(ii) hearsay evidence is generally not admissible unless it falls under an exception to the hearsay rule;
(iii) if hearsay evidence does not fall under a hearsay exception, it may still be admitted if the indicia of reliability and necessity are established;
(iv) the admissibility of hearsay should be approached on a principled, but flexible, case-by-case basis;
(v) the requirements of necessity and reliability should not be considered in isolation – one requirement may impact on the other;
(vi) the requirements of necessity and reliability are established on a balance of probabilities standard;
(vii) even if the criteria of necessity and reliability are met, the trial judge retains an overarching discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect;
(viii) the task of the trial judge is to determine threshold reliability, not ultimate reliability. Ultimate reliability is the sole province of the trier of fact – usually, the jury;
(ix) necessity arises from the fact that the evidence is not available, not that the witness is unavailable;
(x) threshold reliability may be established by: (a) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and/or (b) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability);[^3]
(xi) reliability can be established with the assistance of other corroborating evidence.
A. Reliability
[18] Applying these principles to this case, I begin with the usual indicia of procedural reliability. Gritty is available for cross-examination. I recognized that the opportunity to cross-examine Gritty might be a challenging one, but that reality does not equate to the opportunity being illusory. In any event, any such limitations on a full right of cross-examination arguably go to the issue of the ultimate reliability of the statement, not the threshold reliability of it: see R. v. Chretien (2014), 2014 ONCA 403, 309 C.C.C. (3d) 418 (Ont. C.A.) at para. 58. Certain other procedural factors, that would support reliability, are admittedly absent. I note that the witness was not under oath or affirmation at the time, and the witness was not warned about the dangers of not telling the truth. On the other hand, the intercepted communication was audio and video recorded. That fact permits the jury to see and hear the critical portions of Gritty's statement and to evaluate it in contrast to his evidence at trial.
[19] A fair reading of the authorities makes it clear that the availability of the witness to be cross-examined is the single most important aspect of the reliability analysis. When that availability is coupled with a videotape of the witness's earlier statement, the combination of the two essentially satisfies the reliability requirement. As Moldaver J.A. said in R. v. Trieu (2005), 2005 CanLII 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), at para. 76:
Accepting that cross-examination "goes a substantial part of the way" towards ensuring that the triers of fact can adequately assess reliability, I believe that when the triers also have a videotape of the declarant making the statement, the two in combination go virtually "all of the way" to providing the triers with the tools they need to adequately assess reliability. I say that because in my view, the videotape adds a dimension that is truly valuable to the triers in their assessment of reliability.
The presence of these two elements reduces the absence of an oath to only a "modest" factor in the reliability analysis: see Trieu at para. 78.
[20] Given that Gritty is available to be cross-examined, and that the salient parts of his intercepted statement were audio and video recorded, I concluded that procedural reliability was made out in this case.
[21] Even if that were not the case, I also concluded that substantive reliability was made out. On that point, I accept that Gritty could have been telling a story in order to impress other youths. However, whether that is true is something that the jury can evaluate and reach a decision on. Also, while that account might explain some variations in the story, it does not explain the many details contained in the statement. I reiterate, in this regard, that Gritty does not say that he was simply repeating things that other people, with direct knowledge, had told him. Rather, he says that he made-up the story. That central contention has to be contrasted with the level of detail in the statement, along with the evidence that this jury has heard that would tend to establish that those details are correct. The fact is, as I shall review shortly, that many aspects of the story that Gritty told in the intercepted statement are confirmed by evidence from persons with firsthand knowledge of the events.
[22] On the issue of substantive reliability, I would also note the obvious fact that Gritty did not know that his statement was being recorded. He was not talking to a police officer or another person in authority, where he might have reason to deflect attention away from himself or his brother. Indeed, he does the exact opposite of that. Further, the statement was made spontaneously – Gritty freely volunteered the information that was intercepted. He was not prompted to recount his knowledge of the event.
[23] I return, however, to the more important factor and that is the fact that the contents of the statement are corroborated, to a considerable extent, by other evidence. The confirmatory evidence includes:
(i) The jury knows, from other evidence, that Gritty was present at the block party. He was seen there by a number of witnesses, some of whom interacted with him.
(ii) The jury also knows that the respondent went to the block party in search of Gritty but, instead, encountered his brother, Gifted, just as Gritty describes in his statement. The jury has heard this from the respondent's then girlfriend. The respondent told her, shortly after the shooting, what had happened to him including that it was Gifted who had shot him after the two had an "exchange". The respondent did not tell his girlfriend that he had shot anyone.
(iii) In his statement, Gritty says that, in the encounter between his brother and the respondent, his brother initially pulled out his gun but put it away. In his evidence, Gritty said that he had no idea whether his brother had a gun or not at the party. At the time that this application was argued, the jury had heard evidence from a number of witnesses (and indirectly from the respondent himself) that Gifted had a gun. Indeed, as it turned out, Gifted subsequently gave evidence that he did, indeed, have a gun at the block party and that he had fired it numerous times in the direction of the person who shot him. At trial, however, Gifted contended that the shooter was not the respondent.
(iv) In his statement, Gritty says that the respondent shot his brother twice. Gifted was, in fact, shot twice.
(v) In his statement, Gritty says that, after being shot, his brother pulled out his gun and fired a large number of times, striking the respondent in the leg. The respondent was, in fact, shot in the leg. Further, a number of witnesses, who were at the block party, have given evidence that they first heard a few shots (one to three) and then a barrage of shots. That evidence is consistent with the core of the story told by Gritty regarding the respondent firing first and then Gifted and the unknown person returning fire. It is also consistent with the fact that forensic evidence establishes that at least three firearms were involved in this shootout. And it is further consistent with the evidence of a witness who heard shots, then looked out her window and saw a male lying on the ground, clutching his chest area, who pulled out a firearm and fired it numerous times. I note that Gifted was shot in the abdomen. This same witness saw this male taken to a black car. Gifted was found by the police in a black car after the collision. I also note that eleven shell casings were found in the area where the witness saw this male lying on the ground. They were all fired from the same gun. Lastly, all of this is entirely consistent with what Gifted subsequently said about how the shooting occurred.
(vi) In his statement, Gritty said that, as his brother started firing his gun, an older person started firing a Mac. This person fired the Mac a large number of times. "Mac" is sometimes used as a short form to describe a Mac 10 submachine gun. Forensic evidence from the scene confirms that an Uzi, which is also a submachine gun, was fired fourteen times. Gifted gave evidence that a Mac and an Uzi are generally considered to be the same thing.
(vii) In his statement, Gritty says that his brother's gun was never found. This is true. The only gun that was found at the scene did not match any of the shell casings found. It thus appears not to have been involved in the shooting. Gifted says that he does not know what happened to his gun. However, the witness, who saw the wounded male out of her window, said that the person still had the gun in his hand when he was picked up by others and taken to the car. It would be a reasonable inference to draw that one of the persons, who was in the vehicle with Gifted as they attempted to go to the hospital, took possession of the gun – an inference that perhaps becomes even more compelling when those persons came to realize that the vehicle that they had collided with was an unmarked police car.
(viii) In the intercepted statement, Gritty recounts two things regarding the involvement of another youth in these events, a youth known as Bam Bam. One is that Gritty said that he confronted Bam Bam when he came to the party, that Gritty showed Bam Bam that he had a gun, that he told Bam Bam that he was not welcome at the party (because he was from Malvern) and that Bam Bam had to leave or Gritty would kill him. The jury has heard from a witness who confirmed the fact that Bam Bam was confronted at the party by a group of males, and that one of those males told Bam Bam to leave, but not that a gun was shown. Gritty himself admitted at trial (and prior to this application) that he confronted Bam Bam and told him to leave the party. However, he denied making any threats or showing a gun.
(ix) Another aspect involving Bam Bam is that, in his intercepted statement, Gritty says that a female came up to him at the block party and told him that Bam Bam was at a nearby McDonald's and that he was threatening to come back to the party and shoot it up. At trial, Gritty said that he made all of that up. However, the jury has heard from a number of witnesses, including this female, that, after Bam Bam left the party, he went to the nearby McDonald's, that he was angry about having been refused entrance to the party and that he was looking for a gun in order to go back to the party and shoot it up. This female says that she went to the block party and told people, including Gritty, of the threats that Bam Bam had made at the McDonald's. However, these other witnesses also say that Bam Bam never went back to the party but, rather, left the McDonald's with them. They all went to a friend's house, some distance away, and that is where they all were when the shooting occurred.
[24] From the above evidence, along with other evidence, it would be open to a jury to conclude that Gritty has too many factual similarities, in the rendition of the events contained in his intercepted statement, for him to be believed when he says that he made all of it up from media reports and unspecified rumours in the neighbourhood.
[25] The jury has also heard evidence that places Gritty in a position, when the shooting occurred, to have seen what happened. A witness says that she was with Gritty near where a DJ was playing music, in the backyard of one of the units (the unit in which Gritty was then living), just a minute or two before the gunfire erupted. She left him there to walk with two friends to a store. She had walked only a short distance away when she heard the gunfire. When this witness left Gritty, she says that Gritty was beside a young girl. This young girl happens to be one of the two people who were killed by the gunfire. A post-mortem examination found that this young girl had stippling in her skin, suggesting that she was very close to one of the guns when it was fired. In contrast, at trial, Gritty said that he was not present when the shooting occurred. He said that he walked to the store with this witness – a fact that the witness denies. This evidence, if accepted by the jury, would place Gritty in sufficient proximity to the scene of the gunfight as to have been in a position to see what transpired.
[26] I repeat that it is also of some importance to the above analysis that, in saying that he fabricated the story he told in the intercepted statement, Gritty says that he did not speak to anyone who might have been a source for the detail in his statement. In other words, this is not a situation where a witness is saying that s/he repeated things that they were told by others. Rather, Gritty says that he invented the contents of the statement based, at most, on media reports and rumours circulating in his neighbourhood – all with a view to making himself appear to be a tough guy worthy of respect by other youths. In particular, Gritty says that he never spoke to his brother about the shooting or the events leading up to it. His sole interaction with his brother about the shooting was his brother showing him the wounds that he had. Given that explanation, the similarities in the details in the statement, with the evidence of other witnesses as to what actually happened, may, in the jury's view, belie a claim of fabrication.
[27] Before leaving this aspect of the statement, I should mention that the prosecution produced for defence questioning, two youth service officers who had contact with Gritty while he was incarcerated at the Roy McMurtry Youth Center, prior to the time when Gritty was intercepted at the Scarborough courthouse. On separate occasions, one officer had a direct discussion with Gritty about the Danzig shooting and, on the other occasion, the officer overheard Gritty speaking about the Danzig shooting. Both of these officers said that Gritty was the type of person to boast or brag. Further, both officers said that in those instances where Gritty was talking about the events, either he said that he was not present for the shooting or they "got the impression" that he was not present. The defence asserts that these instances reinforce the contention that Gritty was not speaking from first-hand knowledge.
[28] There are certain problems with this evidence, including the fact that, in neither instance, were the utterances of Gritty recorded. In addition, in one instance, Gritty knew he was speaking directly with an officer and, in the other, there is evidence from which it could be found that Gritty either knew that he was being overheard by the officer, or he certainly knew that being overheard was a distinct possibility but did not care. In both situations, there would be good reason for Gritty to want distance himself from any direct involvement in the events. Not only would he not want to implicate himself in the events, more importantly, he would not want to implicate his brother and then potentially find himself as a witness against his brother.
[29] In any event, the fact remains that much of what these officers overheard is consistent with the intercepted statement, and the details contained therein, including the presence of the respondent at the shooting, the mention of the respondent's street name "Chaotic", the encounter between Gifted and the respondent, and Gritty's attempt to murder the respondent in retaliation. In other words, aspects of the evidence of these two officers provides some additional corroborating evidence.
[30] In respect of the defence contention that Gritty's tendency to brag or boast supports his position that he invented the story, I would note the salient fact that people often boast or brag about things that are true. In other words, just because someone is boasting or bragging does not, of necessity, mean that the core of what they are saying is untrue.
[31] The defence also points to two other events that Gritty recounts in this intercepted statement where he was clearly not speaking from firsthand knowledge. Indeed, he got some details of those events wrong. The defence says that is also evidence that Gritty was not speaking from firsthand knowledge regarding the Danzig shooting. In my view, that issue goes to ultimate reliability, not threshold reliability. It is up to the jury to decide whether that is the case in light of the evidence as a whole.
[32] Finally, it is of some consequence on this point, that Gritty pleaded guilty to the attempted murder of the respondent, that attempt being in the precise fashion that he describes in the intercepted statement. In other words, Gritty did not invent that part of the statement or, apparently, embellish it in any way. He gave a completely accurate rendition of his attempt to murder the respondent.
[33] The defence attempts to compare the situation here with the one that presented itself in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720 where the Supreme Court concluded that a prior statement (in that case an Agreed Statement of Facts on a guilty plea) should not be admitted for the truth of its contents. In my view, the two situations are not comparable. For one, the Agreed Statement of Facts did not emanate from the mouth of the witness as the intercepted statement did here. For another, the incriminating aspects of the information in the Agreed Statement of Facts were part of the plea arrangement whereby Mr. Youvarajah was permitted to plead guilty to a lesser offence and receive a more favourable sentence. And lastly, the Supreme Court held that the ability to cross-examine Mr. Youvarajah was limited due to the presence of solicitor and client privilege applicable to the events leading up to the plea. No such limitations on the ability to cross-examine Gritty are in play here.
[34] I make one final point on the issue of reliability. The two bases upon which reliability can be made out are not mutually exclusive: see R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283 at para. 22. In this case, insofar as there are issues that arise in either of the two methods of establishing reliability, the combination of the two are sufficient to establish threshold reliability.
B. Necessity
[35] Having concluded that the intercepted statement meets the requirement of threshold reliability, the issue of necessity can be more briefly dealt with. The defence contends that the necessity requirement is not made out because there was no recanting of the original statement. Rather, there was merely the clarification that Gritty was not, at the time of his interception, speaking from personal knowledge, but, rather, was speaking from invented knowledge. I make two observations on the defence position.
[36] First, I earlier mentioned that I had permitted Crown counsel to cross-examine on the statement pursuant to s. 9(2) of the CEA. A prerequisite to permitting cross-examination is the necessary finding that there is a prior inconsistent statement. The position of the defence at this juncture necessarily involves a re-visiting of that issue. Attempting to take a second kick at the can is not unheard of but it is not something to be encouraged.
[37] Second, and more importantly, while Gritty may not have directly recanted his earlier statement, he has put a gloss on it (as being a fabrication as opposed to personal knowledge of the circumstances surrounding the shootout) that has the same fundamental effect. Where a statement appears, on its surface, to be the result of firsthand knowledge, a later assertion that the contents of the statement are a work of fiction is, in my view, similar in kind to a witness who provides a statement but then later claims a complete lack of knowledge of the contents of the statement. The need for the admission of the statement, if otherwise reliable, is made out where the witness "does not repeat or adopt the information contained in the out-of-court statement": see Khelawon at para. 38. Also, as noted in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 at paras. 105-110, the necessity criterion must be given a "flexible definition, capable of encompassing diverse situations".
[38] It is also important to remember that it is not the unavailability of the witness, but the unavailability of the evidence, that is generally what is important when these issues arise. The particular importance of that distinction arises in cases, such as this, where the witness is available, but where the witness has effectively disavowed his/her earlier evidence. This point is effectively captured in K.G.B., where Lamer C.J.C. said, at para. 110:
In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recanting witness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevant evidence, "hostage". The different "value" of the evidence is found in the fact that something has radically changed between the time when the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the first criterion, the trier of fact should be allowed to weigh both statements in light of the witness's explanation of the change.
[39] This is a particularly important point, in this day and age, when there are increasing concerns about the impact of the "Code of Silence", or the prohibition against "snitching", in terms of the willingness of persons to come forward and provide information to the police and then, subsequently, at a trial. Two scenarios then present themselves. One encompasses those persons who are motivated, in the aftermath of a horrific event such as occurred at the Danzig complex, to provide information to the police. However, as the months pass before a trial occurs, external influences may come to bear on those persons with the result that, when it actually comes time to give evidence at a trial, they either recant their earlier statements to the police or claim a lack of memory regarding the event.
[40] The other encompasses those persons who have important information about an event but who are hostile, by inclination, to helping the police or our justice system. Such individuals may, for good and valid reasons, have their information captured by the police involuntarily through proper authorizations granted for the specific purpose of obtaining evidence that would otherwise be unavailable. This is not the first case where this has occurred and, unfortunately, I expect that it will not be the last.
[41] In such circumstances, if the principled approach to hearsay does not allow for seemingly reliable statements, made out of court, to be admitted into evidence, much valuable evidence will be lost to the trial process. As a consequence, trial fairness will be impaired. I note, in that regard, that trial fairness encompasses more than just the rights of the accused. There are broader societal concerns that are encompassed in the concept of trial fairness. As Charron J. said in Khelawon, at para. 48:
In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.
C. Conclusion
[42] Gritty's intercepted statement meets both the threshold reliability and the necessity criteria. The two parts of that statement, that I have referred to, should be admitted into evidence so that the jury can compare that earlier statement with Gritty's evidence at trial, and determine which, if either, assists them in arriving at their decisions. Whether this evidence will or will not assist is not a matter for me to decide. It is a matter for the jury to decide. As Charron J. said in Khelawon, at para. 50:
Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence.
[43] It is for these reasons that I concluded that Gritty's intercepted statement was admissible for the proof of its contents.
NORDHEIMER J.
Released: March 17, 2016
Court File No.: YC 30000005-14
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
F.O. (a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: Youth Criminal Justice Act, S.C. 2002, c. 1, s. 111 [^2]: The respondent faces other charges arising out of this event but, for reasons that I need not elaborate on, those charges were severed before the trial proper commenced. [^3]: The labels "procedural reliability" and "substantive reliability" appear in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720 at para. 30.