COURT FILE NO.: CR-13-0081 DATE: 2016-09-06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen, Claude Richer and Kristen J. Mohr, for the Applicant Applicant

• and -

Keith Ritchie, Victor Giourgas, for the Respondent Respondent

HEARD: June 13 & 14, 2016, at Thunder Bay, Ontario

Platana J.

Rulings on Application to Admit Evidence

[1] Keith Ritchie is charged with:

i) Conspiracy to traffic cocaine with John Tsekouras, Robert Chiodo, Frank Muzzi, Roy Pelletier and, Travis Gordon, between June 15 and June 16, 2011.

ii) Participate in a criminal organization with John Tsekouras, Robert Chiodo, Frank Muzzi, Roy Pelletier and Travis Gordon, between June 15 and June 16, 2011.

iii) Traffic in cocaine on June 15, 2011.

iv) Traffic in marijuana on June 15, 2011.

v) Conspiracy to traffic cocaine with John Tsekouras, Robert Chiodo, Frank Muzzi, Roy Pelletier and Travis Gordon, between June 15 and June 16, 2011

[2] A number of Pre-Trial Applications were agreed by counsel to best be considered by dealing with the evidence on the merits of the charges, and the Applications, in a single blended proceeding. This Application is brought by the Crown seeking admission of the sworn statement of Salvatore Larizza on December 20, 2011 (the “Larizza statement”), and the Transcript of the guilty plea entered by Frank Muzzi (the “Muzzi Plea”).

[3] In support of this Application the Crown relies on:

a) The transcript and video of the audio video recorded statement of Salvatore Larizza on December 20, 2011;

b) The transcript of Frank Muzzi’s guilty plea;

c) R. v. Tsekouras, 2014 ONSC 7155 (J. dep. Wright, J. ruling on the admissibility of the Larizza Statement and Muzzi Plea);

d) (Static) Video surveillance;

e) Viva voce evidence of Detective Sergeant Ken Davis (ret), Detective Constable Kelly Walsh, and Detective Corporal Ron Miller.

Background / Overview

[4] Larizza’s residence was raided by police pursuant to a search warrant on June 16, 2011. Police discovered various drugs in the residence on the property including the marijuana and cocaine that is alleged to have been stored in the garage as part of a drug trafficking conspiracy involving the Respondent. Police also discovered 40 pounds of hash oil in a green truck on Larizza’s property that, when pressed for an explanation, Larizza attempted to attribute to Frank Muzzi. He was arrested that day.

[5] Detective Sergeant Davis conducted an interview on June 20, 2011. The admissibility of that is not in question, subject to the fact that counsel relies on information therein as compared to a statement of December 20, 2011 to argue any inconsistencies in determining reliability of the December 20 statement.

[6] Mr. Larizza was released on conditions.

[7] A video recorded statement was then given on December 20, 2011.

[8] On October 25, 2012, Mr. Larizza was murdered.

THE STATEMENT OF SALVATORE LARIZZA

[9] The evidence of Sergeant Dubuc is that on September 20, 2011, Mr. Larizza attended at the police station asking to see him. He asked if his release conditions could be changed, so that he could be in his own residence for Christmas. He further indicated that he wished to give a statement “to clear himself.” Sergeant Dubuc advised him to speak to a lawyer.

[10] Interviewing phone calls took place resulting in a meeting on December 12 with Mr. Larizza and his lawyer. There was a discussion about a change in the release conditions. There was no discussion about the charges against Mr. Larizza.

[11] On December 20, after having spoken with counsel, Mr. Larizza arrived at the station to give a statement. He provided a sworn audio and video interview to police regarding the results of the search warrant conducted at this residence on the 16th of June 2011. In response to questions, he stated that he had not been drinking, nor had he taken any drugs. Sergeant Dubuc described him as upbeat, and that he appeared to be happy about clearing his name.

[12] Sergeant Dubuc testified there was no discussion of any promise to Mr. Larizza, other than to consider a change in his release conditions. During discussions with Mr. Larizza and his counsel, it was made clear that the charges against Larizza would remain.

[13] Sergeant Dubuc acknowledged that he was not aware that Larizza had previously been interviewed by Sergeant Davis in June, and that information would have been helpful to him, particularly to determine if there were any discrepancies.

[14] At the outset of the videotaped statement, Det. Sgt. Dubuc told Larizza, “Um so um as Ive explained we were investigating what happened on the day of your search warrant on June the sixteenth right.” Larizza said that he understood and said that he had spoken with his lawyer that afternoon. Det. Sgt. Dubuc said, “Okay alright and he advised you that it was okay to provide this statement to police.” Larizza responded, “Yes he did.” Det. Sgt. Dubuc asked Larizza the following:

Dubic (sic): Okay uh is why do you wanna provide a statement to police today Sal? Larizza: So I can clear up my name from these these charges. Dubic (sic): Okay um and also at this time uh the police haven’t promised you any any anything in relation to this case? Larizza: No Dubic (sic): Uh aside from uh assisting you with amending your conditions. Larizza: Yes for helping the conditions yes.

[15] Larizza stated that Frank Muzzi came to his house at about 7:00 pm on the 15th of June, 2011, driving a Black Lincoln pickup. Muzzi told Larizza that he had some drugs and wanted to stash them at his place till morning. Larizza had told Muzzi to put it in the garage. Muzzi then went and backed up the black Lincoln truck and put the drugs in the garage. Larizza admitted he did not see the box containing the drugs. Larizza noted that there was someone else in the vehicle with Muzzi but did not see the individual. Police executed the search warrant following morning and located 18 packages of marijuana totaling approximately 19.5 lbs, and 1 kilogram package of cocaine, together in a box in the garage.

THE PLEA OF FRANK MUZZI

[16] On the 5th of December, 2012, Muzzi entered a plea of guilty to 4 counts, including, between the 15th of June and the 16th of June, 2011, conspiring with person or persons unknown or unnamed to traffic in cocaine and marijuana, contrary to section 465(1). The facts read into the record, and agreed to by Muzzi are as follows:

On the 15th of June, 2011, in a conspiracy with other persons either unknown or unnamed, Mr. Muzzi obtained, transported and subsequently made arrangements to store 18 pounds of marijuana and 1 kilo of cocaine at the residence of Salvatore Larizza. As a result of a judicial authorization, police had installed a tracking device on the Lincoln truck routinely operated by Mr. Muzzi. Information from the tracking device revealed that Mr. Muzzi departed his residence in the Lincoln truck and he attended 301 Belton Road in the City of Thunder Bay, the residence of Salvatore Larizza. He was in the company of an unknown or unnamed individual or individuals. Once arriving at the residence, Mr. Muzzi deposited the drugs in the garage and left. On June 16th, 2011, police executed the search warrant at the residence and located the box deposited by Mr. Muzzi. It contained 18 pounds of marijuana and 1 kilogram of cocaine. According to a sworn statement provided by Mr. Larizza, Mr. Muzzi would have attended Mr. Larizza’s house at approximately seven o’clock the night before on the 15th in the black Lincoln truck. He would have indicated to Mr. Larizza that he had some drugs and Mr. Larizza, in his statement, indicated the following, and I am quoting, he said, “It is just for the night, ‘he said, Tomorrow morning it’ll be out, it’ll be off the property.’ So I said okay, go put it in the garage. I told him go put it the garage and he went and backed up the truck and put in the garage. And then the following morning at seven o’clock in the morning the police came to my house with a search warrant and they came in the house and they found the drugs.”

[17] The Crown seeks to have admitted the Muzzi Plea as part of its argument to establish the admissibility of the Larizza Statement, not as evidence to be used against Mr. Ritchie in the trial proper.

APPLICANT CROWN’S POSITION AS TO STATEMENT

[18] The Crown acknowledges that hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies.

[19] Mr. Richer references R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, where the court set out the principled approach to be followed when determining hearsay exceptions.

42 It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. Hence, a number of common law exceptions were gradually created. A rigid application of these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, — 1420, at p. 153). This Court first accepted this approach in Khan and later recognized its primacy in Starr. The governing framework, based on Starr, was recently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[20] Mr. Richer refers to para. 47:

Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

[21] Mr. Richer refers to para. 50 of Khelawon where the Court noted that the trial judge functions as a gatekeeper at the voir dire stage:

[T]he trial judge only decides whether hearsay evidence is admissible. 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. It is important that the trier of fact’s domain not be encroached upon at the admissibility stage. If the trial is before judge and jury, it is crucial that questions of ultimate reliability be left for the jury – in a criminal trial, it is constitutionally imperative. If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability.” Only the latter is inquired into on the admissibility voir dire.

[22] Mr. Richer submits that necessity is established because Mr. Larizza is deceased. Mr. Giourgas agrees.

[23] With respect to reliability, he refers to para. 2 of Khelawon where the Court noted two ways of establishing reliability:

When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess it worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trail judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder. [Emphasis added]

[24] Mr. Richer refers to para. 139 of R. v. Hamilton, 2011 ONCA 399 where the Court discussed the scope of the threshold reliability inquiry:

Khelawon is significant because of the court’s clear statement, at para. 100, that the inquiry into threshold reliability need not be limited to the circumstances surrounding the making of the statement. Rather, the broader picture, including the existence of corroborative evidence, may be considered in deciding whether the statement is inherently trustworthy and thus sufficiently reliable to warrant its reception as evidence of the truth of the matters stated therein.

[25] Mr. Richer acknowledges that while cross-examination is the optimum way to test evidence, he submits that the absence of cross-examination is not fatal to his case. He refers to para. 48 of Khelawon:

Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.

[26] Mr. Richer submits that the presence of inducements, if any are found to be present, does not necessarily affect the voluntariness of a statement. He refers to para. 141 of Hamilton: “…we do not read K.G.B. as laying down a hard and fast rule that all witness statements taken in contravention of the traditional confessions rule must necessarily be rejected as evidence of the truth of their contents.”

[27] Mr. Richer cites R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720 as the approach to be taken in determining threshold reliability:

[21] In addition to the traditional exceptions, however, this Court developed a principled approach that permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of necessity and reliability. This is a flexible case-by-case examination...

[23] The trial judge, as the evidentiary gatekeeper, assesses the threshold reliability of the hearsay statement. The decision as to the ultimate reliability of the statement is left to the trier of fact: Khelawon, at para. 2…

[30] However, the K.G.B. indicia are not the only means of establishing threshold reliability. The prior inconsistent statement’s threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and (2) sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability): Khelawon, at paras. 61-63. These two principal ways of showing threshold reliability are not mutually exclusive: R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22.

[28] With respect to the procedural reliability of the Larizza Statement, the Crown relies on the following facts:

− Mr. Larizza contacted the police to give his statement

− prior to doing so, he was advised to contact to contact counsel, which he did.

− The statement was made under oath, given in front of a Commissioner.

− He was given a warning as to the significance of an oath and the giving of false evidence.

− The entire statement was videotaped and I am able to see his demeanour throughtout.

[29] With respect to the substantive reliability, the Crown points to facts which confirm or support Mr. Larizza’s statement.

− He speaks of a box of drugs and drugs are found.

− He states the Lincoln is in his name but operated by Muzzi, which is substantiated by police witnesses.

− Evidence of the tracking device that tracks the Lincoln to Larizza’s residence that night.

− Contents of messages on the encrypted phones that the box has to be out by morning and Muzzi says it will be out by morning.

− The plea, and transcript of the plea, by Muzzi which the Crown says should be admitted on 3 bases:

− Exception to hearsay, s. 23 Canada Evidence Act.

− At common law, as a record of court proceeding.

− Non-hearsay to establish identity of Muzzi and his connection to Larizza, whether or not, Muzzi entered a plea to facts in the Larizza Statement.

[30] Mr. Richer submits that the test for admissibility is as stated by the Ontario Court of Appeal in R. v. Hamilton, 2011 ONCA 399 beginning at para. 155:

[155] Khelawon, in our view, requires trial judges to ask two questions in deciding whether a witness statement should be admitted for its truth:

1. On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?

2. If the answer to question one is “yes”, are there overriding policy considerations that would prevent the statement from being admitted for its truth?

[156] With respect to the first question, as Khelawon explains, in some instances, the answer will be apparent having regard to the circumstances under which the statement came about. In others, circumstances external to the making of a statement will be such that the trier of fact can sufficiently test the statement’s truth and accuracy. In still others, a combination of the two will satisfy the threshold reliability requirement.

[157] With respect to the second question – policy concerns – if the police were to engage in misconduct such as beating a witness to obtain a statement, or conduct that would otherwise bring the administration of justice into disrepute, such as posing as a priest in a confessional, the statement would almost certainly be rejected as evidence of the truth of its contents: see K.G.B., at p. 299 and R. v. Rothman (1981), 1981 SCC 23, 59 C.C.C. (2d) 30, at p. 74. Another example would be where the probative value of the statement is outweighed by its prejudicial effect: see Khelawon, at para. 49.

RESPONDENT’S POSITION AS TO STATEMENT

[31] Mr. Giourgas, for the defence, submits that Mr. Larizza’s statement is inadmissible in the trial proper. He submits that this court’s analysis must focus on the hearsay dangers presented by Mr. Larizza’s statement. He refers to para. 18 of R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720:

Hearsay evidence - an out-of-court statement tendered for the truth of its contents - is presumptively inadmissible. This is because the dangers associated with hearsay evidence may undermine the truth-seeking function of a trial or its fairness. These dangers typically include an inability to test and assess a declarant’s perception, memory, narration, or sincerity: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2.

[32] Mr. Giourgas refers to para. l06 of Khelawon where the Court discusses the reliability of videotaped statements:

This is not a Hawkins situation where the difficulties presented by the unavailability of the declarant were easily overcome by the availability of the preliminary hearing transcript where there had been an opportunity to cross-examine the complainant in a hearing that dealt with essentially the same issues. Nor is this a B. (K.G.) situation where the presence of an oath and a video were coupled with .the availability of the declarant at trial. There are no adequate substitutes here for testing the evidence. There is the police video -- nothing more. The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement.

[33] Mr. Giourgas argues that Mr. Larizza’s statement is unreliable because it contains inconsistencies and because Mr. Larizza downplays his responsibility.

[34] Mr. Giourgas further argues that having been found with drugs in his garage, Mr. Larizza had a motive to lie by placing responsibility on someone else which negates the inherent trustworthiness of the statement. Mr. Giourgas submits that a motive to lie is a relevant consideration in the reliability inquiry. He refers to para. 42 R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298:

There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission. It is important to keep in mind, however, that motive is but one factor to consider in the determining of [page 3l8] threshold reliability, albeit one which may be significant depending on the circumstances.

[35] Mr. Giourgas also submits that Mr. Larizza's statement is a form of double hearsay because Mr. Larizza repeats what others have told him. He refers to para. 75 of R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517: “It is also clear that the principled exception applies only to hearsay evidence that would othe1wise be admissible through the direct testimony of the declarant, had the declarant been available and competent to testify at trial: B. (K.G.), at p. 784; Hawkins, at para. 69.”

[36] Mr. Giourgas submits that cross-examination is necessary in these circumstances in order to have had an opportunity to challenge Mr. Larizza on the contents of his statement.

CROWN’S POSITION AS TO THE MUZZI PLEA

[37] Mr. Richer has candidly acknowledged that if I determine that the Larizza Statement is admissible on the basis of procedural reliability and necessity, that I need not consider the issue of the Muzzi Plea. If the Larizza Statement in itself does not meet the threshold, he then argues that the Muzzi Plea and the transcript of same are admissible in determining substantive reliability on three bases: i) as part of the overall circumstances to be considered; ii) as an exception to hearsay under s. 23 of the Canada Evidence Act; and iii) not for the truth of its contents, but to establish the identity of Mr. Muzzi as “7710” in the encrypted cell phone emails, and as the person who brought the drugs and spoke to Mr. Larizza on the evening of the day before the drugs were found.

[38] He acknowledges that the applicable standard of proof is on a balance of probabilities.

[39] He argues that necessity is met by referencing R. v. Shea, 2011 NSCA 107, at paras. 69-71 where the court adopts Wigmore’s aspect of necessity as expediency. At para. 72, the Court references R. v. Starr, 2000 SCC 40:

“[A] review of the traditional exceptions reveals that there are reasons beyond “pure” necessity why a court might wish to admit reliable hearsay evidence. This point was addressed by Lamer CJ. in B. (K.G.), at pp. 796-97, where he explained that the need to permit the admission of certain forms of hearsay can stem not only from the unavailability of the out-of-court declarant, but also from the quality of the evidence itself Lamer C.J. cited Professor Wigmore's explanation (Wigmore on Evidence, vol. 5 (Chadbourn rev. 1974), at p. 253) that some hearsay evidence “may be such that we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources” (emphasis in original). Such hearsay may be admitted, where appropriate, less on the basis of necessity and more on the basis of “expediency or convenience.” The traditional exceptions are useful, therefore, because they are instructive as to the types of situations that may produce hearsay that is the best evidence in the circumstances.”

[69] The appellants argue that the Hersey brothers were available for testimony with Luke Hersey being incarcerated at the time of trial. The suggestion being that hearsay was not necessary since the declarant from inside the house, Luke Hersey, was available to testify. However, necessity is not so narrowly defined. Lamer, C.J.C. in R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915 held:

... the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at §1421 the following categories:

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross‑examination]. This is the commoner and more palpable reason. . . .

(2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources . . . . The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.

Clearly the categories of necessity are not closed.

[40] Mr. Richer submits that because of the high circumstantial guarantee of reliability attached to the Muzzi Plea and transcripts they should be admitted. He further cites R. v. C. (W.B.), 2000 ONCA 397, [2000] O.J. No. 397, where Weiler J.A. states:

[30] Before us, the Crown maintained that the transcript was admissible at common law on two bases. The first is under the Khan exception to the hearsay rule which requires that the necessity and reliability of the proposed evidence be established. The second is that the transcript is a public document at common law. I prefer to call the transcript a record of a judicial proceeding. The criteria for admissibility at common law of a public document and a judicial proceeding are the same and legal writers, such as Wigmore, make no distinction between them. The principles of necessity and reliability also underlie the public document or judicial proceeding exception. As stated by Laskin J.A. in R. v. P.(A.) (1996), 1996 ONCA 871, 109 C.C.C. (3d) 385 at 389-390:

… This exception is ‘founded upon the belief that public officers will perform their tasks properly, carefully, and honestly.’ Sopinka et al, The Law of Evidence in Canada… (Toronto: Butterworths, 1992), p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them.

[31] The inconvenience of requiring a public official to attend in court to prove a public document or of requiring a court reporter to prove a prior judicial proceeding makes it necessary to admit the document or transcript. In addition the transcript is the best source to answer the question of what was said in court about the circumstances surrounding the commission of the sexual assault on K.B. Evidence of the same value from any other source does not exist. Even if the court reporter were physically present in court to testify as to what transpired in 1991, her recollection would not be as good as the transcript. Necessity of this nature falls into the second category of evidence articulated by Wigmore at paragraph 1421 and approved by Lamer J. in R. v. Smith (1992), 1992 SCC 79, 75 C.C.C. (3d) 257 at 271:

(2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources. The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. The requirement of necessity has been met.

[32] In R. v. P.(A.), supra, at 390, Laskin J.A. articulated four criteria for the admissibility of a public document or, in this case, a judicial record. These criteria which all relate to the reliability of the record are:

(i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public;

(ii) the public official must have made the document in the discharge of a public duty or function;

(iii) the document must have been made with the intention that it serve as a permanent record, and

(iv) the document must be available for public inspection.

[41] The third basis upon which Mr. Richer submits the Muzzi Plea and transcript can be admitted is found in the decision in R. v. Evans, 1993 SCC 86, [1993] 3 S.C.R. 653, where at paras. 18-19 the court stated:

18 The ultimate value of these statements was to prove that the appellant and the purchaser of the getaway car were one and the same person. There was independent proof that the appellant worked as a fencer, and that he owned a large pregnant dog. If the purchaser could be proved to have a large pregnant dog and have worked as a fence installer, this would suggest that the appellant was the purchaser. However, there is no proof that the purchaser owned a dog or worked as a fencer unless the statements made to the Boutets are assumed to be true. The statements cannot be used for the truth of their contents unless they are admissible under an exception to the hearsay rule.

19 That being said, the statements still have some probative value as non-hearsay. Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize that the statements are not being used as truth of their contents at this stage.

[42] Mr. Richer argues that Mr. Muzzi entered a plea with certain facts, and whether they are true or not, those facts are similar to what was said by Mr. Larizza, and that tells something about their connection; by helping to identify who it was that brought the drugs to Mr. Larizza’s residence, particularly when combined with the other evidence of the tracking device and visual observations. Mr. Richer argues that the fact that Muzzi was in a position to enter the plea and admit the same facts as were stated by Larizza has some probative value.

[43] Mr. Richer submits that this same issue as to both the Larizza Statement and the Muzzi Plea was decided by Wright, J. in his Reasons on a voir dire in the matter of R. v. John Tsekouras, 2014 ONSC 7155, where he allowed the admissibility of both. Mr. Richer submits the only difference is that he asks that the Muzzi Plea be admitted in the analysis of reliability for the Larizza Statement, and not on the trial proper, as was the case in Tsekouras.

DEFENCE POSITION AS TO THE MUZZI PLEA

[44] Mr. Giourgas submits that Mr. Muzzi's guilty plea is inadmissible both on this application and in the trial proper.

[45] Mr. Giourgas submits that the Crown has not established that the Muzzi Plea is necessary under the principled exception to the hearsay rule. He argues that the Crown has offered no explanation as to why Mr. Muzzi cannot testify. He refers to para. 55 of R. v. Magno, 2012 ONSC 4001 where the Court discusses R. v. Simpson, 2007 ONCA 793:

[W]hile Simpson makes clear that the availability of a co-operative declarant is not necessarily determinative of the necessity issue, it does not clarify when this might be enough to find that the necessity requirement is not met. Despite this, the court in Simpson stated that the failure of the Crown in that case to demonstrate that the declarant was unavailable, was itself a sufficient basis to exclude the hearsay evidence.

[46] Mr. Giourgas further submits that the Muzzi Plea is not reliable. He relies on R. v. Caesar, 2016 ONCA 599 at para. 77:

While the transcript of the guilty plea is reliable for purposes of establishing what was said at the guilty plea proceedings, the reliability of what was said is a different matter. Courts have warned against the dangers of relying on such evidence when it is to be used against a co-accused because of the self-interest of the person making the plea in accepting as substantially correct a version of the facts most favourable to his or her plea bargain: see R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at para. 43; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 62.

[47] Mr. Giourgas submits that even if the co-conspirator’s exception applies, which he does not concede, the Muzzi Plea does not meet the necessity criteria. He argues that the facts are similar to those in Simpson. He refers to para. 93 of R. v. N.Y., 2012 ONCA 745:

Each case falls to be decided on its facts. If we consider cases on a spectrum, at one end would be cases, similar to N.Y., in which the Crown alleges a multi-party conspiracy over an extended period of time. At the other end of the spectrum would be a case such as Simpson, in which there was really one question for the declarant if called to give evidence: “Were you Mr. Simpson's drug supplier on the offence date.” There would be no reason to think that the declarant would not have a clear memory on that straightforward point. Thus, in Simpson the quality of the evidence of the declarant would be at least equal to that of the police officer assuming, as the Court did, that the declarant would be co-operative.

[48] Mr. Giourgas points out that Mr. Muzzi is a compellable witness and that the Crown has made no efforts to call Mr. Muzzi as a witness. Mr. Giourgas argues that it cannot be presumed that Mr. Muzzi would be an uncooperative witness or that he would not provide evidence of the same quality as that contained in his guilty plea.

DISCUSSION / LEGAL PRINCIPLES CONSIDERED

[49] In Khelawon the Court sets out certain basic principles in relation to hearsay:

2. ... When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

3. … In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact.

4. As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.

[50] At para. 42 of Khelawon the Court sets out the framework:

… The governing framework, based on Starr, was recently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire. …

[51] At para. 46 the Court states:

However, as I will explain, necessity and reliability should not be considered in isolation. One criterion may impact on the other. …

[52] At para. 47 the Court states:

… The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

[53] The issue of cross-examination is commented on in para. 48:

As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes cross‑examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.

[54] At para. 50 the Court states:

If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury — in a criminal trial, it is constitutionally imperative. If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire. …

[55] At para. 51 the Court states:

The distinction between threshold and ultimate reliability has been made in a number of cases (see, for example, B. (K.G.) and R. v. Hawkins, 1996 SCC 154, [1996] 3 S.C.R. 1043), but we are mainly concerned here with the elaboration of this principle in Starr. In particular, the following excerpt from the Court’s analysis has been the subject of much of the discussion and commentary (at paras. 215 and 217):

In this connection, it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability. Only the former is relevant to admissibility: see Hawkins, supra, at p. 1084. Again, it is not appropriate in the circumstances of this appeal to provide an exhaustive catalogue of the factors that may influence threshold reliability. However, our jurisprudence does provide some guidance on this subject. Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra; Smith, supra), or because there were safeguards in place such that a lie could be discovered (see Hawkins, supra; U. (F.J.), supra; B. (K.G.), supra).

At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal’s decision in R. v. C. (B.) (1993), 1993 ONCA 8564, 12 O.R. (3d) 608; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability. [Underlining added.]

[56] At para. 61 the Court states:

Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. As some courts and commentators have expressly noted, the reliability requirement is usually met in two different ways: …

[57] At para. 62 the Court states:

One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form.

[58] At para. 63 the Court states:

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. … 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.

[59] In Blackman, the Court stated at para. 35:

The trial judge’s role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of the case to justify receiving the evidence. This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about, or by showing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive.

[60] In dealing with motive, the Court stated at para. 42:

There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission. It is important to keep in mind, however, that motive is but one factor to consider in the determining of threshold reliability, albeit one which may be significant depending on the circumstances. The focus of the admissibility inquiry in all cases must be, not on the presence or absence of motive, but on the particular dangers arising from the hearsay nature of the evidence. …

[61] At para. 54, the Court noted that:

It is important to emphasize that Khelawon did not broaden the scope of the admissibility inquiry; it merely refocused it. This Court held that the relevant factors to be considered on the admissibility inquiry should no longer be categorized as going either to threshold or ultimate reliability. Rather, the Court stated that a functional approach should be adopted. I repeat the words here:

As I trust it has become apparent from the preceding discussion, whether certain factors will go only to ultimate reliability will depend on the context. Hence, some of the comments at paras. 215 and 217 in Starr should no longer be followed. Relevant factors should not be categorized in terms of threshold and ultimate reliability. Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. [para. 93]

[62] At para. 55, the Court noted that:

Hence, the Court clarified that in appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement. Consider, on the one hand, the hearsay statement of a complainant who asserts that she was repeatedly stabbed but has no injury to show in support. The lack of corroborative evidence would seriously undermine the trustworthiness of the statement and, indeed, would likely be fatal to its admissibility. On the other hand, an item of corroborative evidence can also substantiate the trustworthiness of a statement. Recall the semen stain in R. v. Khan, 1990 SCC 77, [1990] 2 S.C.R. 531. Where an item of evidence goes to the trustworthiness of the statement, Khelawon tells us that it should no longer be excluded simply on the basis that it is corroborative in nature.

CONCLUSION

[63] In determining threshold reliability, the trial judge functions as a gatekeeper to first determine whether the particular hearsay statement contains sufficient indicator of reliability so as to afford the trier of fact a satisfactory basis for evaluation the truth of the statement

[64] Mr. Giourgas has argued that the Larizza statement should be excluded because of the inability to cross-examine, that the statement when viewed in the light of the June interview with Sgt. Davis contains inconsistencies, that Mr. Larizza had motive to fabricate and attempted to direct the acts toward Mr. Muzzi, and that Mr. Larizza was induced to make the statement in the discussion with the police to amend his conditions of release. As noted in Blackman at para. 42, the presence or absence of a motive to lie is a relevant consideration in determining admission.

[65] In this case, I am not satisfied that the discussion with respect to changing the release conditions can be considered as an inducement. It was Larizza who initiated the request to speak to police. He was clearly told that the charges against him would remain and he gave the statement after consultation with counsel.

[66] With respect to any inconsistences which may be present from the June interview, or other inconsistencies, that is more a matter of ultimate reliability.

[67] I do not find a motive to lie as a factor affecting threshold reliability. Mr. Larizza acknowledged his role as from time-to-time operating a “stash house,” and acknowledged that he had permitted what he knew to be drugs to be stored in his garage the night of the police operation and his arrest.

[68] While cross-examination can almost always be said to be of benefit, in considering all of the circumstances presented here, I am satisfied that the absence of cross-examination is not a significant enough factor as to warrant the statement to be excluded as hearsay.

[69] In considering the reliability, I have taken into account the circumstances of the statement itself and relevant evidence which I consider to be corroborative:

• the statement was made after Larizza spoke to counsel;

• it was taken under oath;

• he was warned as to the significance of the oath, and the giving of false evidence;

• the statement was videotaped and I have had the opportunity to see his demeanour;

• he speaks of a box of drugs in his garage and drugs are found;

• he states Muzzi was operating a Lincoln which was registered in Larizza’s name. Muzzi was seen operating the Lincoln and a tracking device placed the Lincoln at Larizza’s residence the day before the death; and

• the guilty plea of Muzzi, but not the facts underlying the plea.

[70] Considering these factors, I am satisfied that the Crown has met the onus of establishing the statement is reliable. Its truth and veracity are the still subject of consideration in the trial itself. The statement is sufficiently reliable so as to afford the trier of fact a satisfactory basis for evaluation of the truth of the statement.

[71] The Crown has argued that the Muzzi Plea and the transcript of the facts in support of that plea can be admitted on the basis of necessity, in the context of expediency. There is no presumption of necessity. In R. v. F. (W.J.) at para. 44, McLachlin J., as she then was, stated that “fear or disinclination, without more, do not constitute necessity.”

[72] An explanation as to why the witness cannot testify is not always necessary. However,

… the trial judge must have a foundation for ruling that necessity is established. But that foundation may arise either from the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown (R. v. F. (W.J.) at para. 41).

[73] No explanation has been offered by the crown as to why Mr. Muzzi cannot testify. In my view, the Crown cannot simply rely on the transcript of what was said at the time of plea without providing the court with an evidentiary basis for a finding of necessity. In that regard, I have considered the decision of Magno, at para. 54, where T. Ducharme, J. states:

[54] In Simpson the Court of Appeal also makes it clear that the availability of the declarant encompasses more than merely the fact that he or she is available to testify:

Importantly, whether or not [the hearsay declarant] would be a cooperative witness, or whether there was any meaningful prospect of obtaining evidence from him, was never established in this case.

[74] Following counsels’ submissions with respect to this application, Mr. Giourgas, on consent of Mr. Richer, provided me with the recent Court of Appeal decision in R. v. Caesar, 2016 ONCA 599 (not available to Wright J.) where the court admitted evidence of a guilty plea of a joint accused on the trial of the other accused, but not the facts supporting that plea. The trial judge had concluded that the requirements of necessity and reliability had not been met because the potential witness was available to testify. At para. 30, Blair, J.A. stated:

[30] I would therefore allow the appeal and order a new trial on the basis that the appellant should have been permitted to lead the evidence of Mr. Anderson’s guilty plea alone, through proof of the indictment on which it is recorded (redacted as necessary to eliminate information, such as the sentence imposed, that the jury should not have before it). The evidence of the underlying facts upon which the plea was based is not admissible, however, because proof of the truth of the contents of the transcript of the plea does not fall within any of the exceptions to the hearsay rule on which the appellant now relies, nor does it meet the necessity and reliability criteria required for application of the principled exception to the hearsay rule in these circumstances.

[75] Further at paras. 63 and 64:

[63] The evidence of the guilty plea was admissible on the public documents/judicial records analysis and trial fairness considerations on the part of the appellant favour its admissibility as well.

Proof of the Facts Underlying the Guilty Plea: The Transcript

[64] But the same analysis does not flow in respect of the facts underlying the guilty plea as recorded in the transcript of the plea proceedings. Similar to the indictment, the transcript itself could be proved, for purposes of authenticity, either as a public document or record of judicial proceedings or through the common law mechanism of exemplification. However, the transcript is only admissible to prove what was said, because that is what it was the court reporter’s duty to record; it is not admissible to prove the truth of what was said, because the scope of the duty did not extend to validating the truth of what was said in the circumstances: C. (W.B.), at para. 34; Byrnes, at para. 15.

[76] In considering these cases, while the guilty plea alone may be admitted, I see no basis upon which the facts in support of that plea may be admitted.

[77] The application to admit the transcript and video recorded statement of Salvatore Larizza is allowed. That part of the application with respect to the introduction of the guilty plea of Frank Muzzi is allowed. The introduction of the transcript of Frank Muzzi’s guilty plea is dismissed.

__________ ”original signed by”_ ___

The Hon. Mr. Justice T.A. Platana

Released: September 6, 2016

COURT FILE NO.: CR-13-0081 DATE: 2016-09-06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen, Respondent - and - Keith Ritchie, Applicant RULINGS ON APPLICATION TO ADMIT EVIDENCE Platana J. Released: September 6, 2016 /mls