R. v. Corbière, 2016 ONSC 6817
CITATION: R. v. Corbière, 2016 ONSC 6817
COURT FILE NO.: CR-16-0004
DATE: 20161101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Kimel Corbière
Respondent
COUNSEL:
S. Haner, for the Crown
M. Haraschuk and M. Venturi, for the Respondent
HEARD: September 20, 2016
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 517(1) and subsection 539(1) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial.
DECISION ON CROWN’S APPLICATION TO ADMIT STATEMENTS OF JOHN PANAMICK
wilcox, J.
[1] Kimel Corbière stands charged that he, between May 11, 2014 and June 13, 2014 committed the second degree murder of John Cecil Panamick. The deceased, about age 72, allegedly suffered a beating on May 11, 2014, was hospitalized, and died on June 13, 2014 after 32 days in the intensive care unit. In between, he allegedly told medical staff, his siblings and police what he knew about what had happened to him. Those utterances were preserved in statements provided to police by medical staff and by the siblings, and in an audio recorded statement to police. The crown takes the position that the circumstances surrounding the making of three of those statements, being those made to Detective Constable Dave Mack, Hazel Recollet and Henry Panamick, are such that the court can be satisfied that they are sufficiently reliable to be admitted into evidence for the consideration of the jury under the principle exception to the hearsay rule.
[2] The defence sought an order to exclude the utterances of John Panamick as insufficiently reliable to be admitted pursuant to the principle exception to the hearsay rule.
LAW
[3] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the Supreme Court of Canada dealt with “the admissibility of hearsay statements under the principle exception to the hearsay rule based on necessity and reliability”, providing guidance as to “what factors should be considered in determining whether a hearsay statement is sufficiently reliable to the admissible” (par. 1). The court in its overview stated:
As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Hence, over time a number of exceptions to the rule were created by the courts. Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. 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.
The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. 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. In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.
[4] Hearsay was defined as an out of court statement advanced to prove the truth of its contents when there is no opportunity for a contemporaneous cross-examination of the declared to test its reliability (par. 2 and 56). It is presumptively inadmissible (par. 3). Under the principled approach, “the onus is on the party that seeks to adduce the evidence to establish (necessity and reliability) on a balance of probabilities” (par. 47).
[5] “When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statements truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trust worthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not - - recall U. (F.J.)” (par. 92).
[6] The reliability requirement can be met in two different ways:
By showing “that there is no real concern about whether the statement is true or not because of the circumstances in which it became about,” or
By showing “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 none the less be sufficiently tested.” (par. 61-63).
[7] Considerations in number 1 included:
- matters that would likely have been inquired into if the declarant had been available to testify such as:
a. Motive
b. Perception
c. Memory
d. Credibility
- corroboration by other evidence (par. 67-72).
[8] Considerations in number 2 included:
- The B (K.J.) criteria of:
a. A warning to the witness as to the existence of sanctions in the significance of the oath or affirmation.
b. The use of an oath or affirmation.
c. The videotaping of the statement because of the value of seeing and hearing the witness and of having an accurate record of what was said,
although the lack of these would not necessarily be fatal.
[9] Other indicia of reliability include:
The availability of other evidence which reflects on the statement’s reliability.
Whether the maker of the statement was influenced by coercion, including leading questions.
The availability of the declarant for cross-examination would be significant. (par 73-91)
A striking similarity between the hearsay statement and other independent evidence making it likely that the statement is true. (par. 86)
[10] Necessity is not an issue here, as John Panamick is deceased and, obviously, not available to testify.
FACTS
[11] Allegedly, Luke Anwhatin attended the residence of John Panamick on May 11, 2014 and found him lying on the floor of his living room moaning in pain. Anwhatin asked some questions, to which Panamick responded. The only word Anwhatin could make out was “her”. A short time later, ambulance attendance arrived and began assessing and treating Panamick’s injuries. He was observed to be almost unresponsive to their questions and unintelligible. Seeing this, Cheryl Migwans, a neighbour who was present, spoke to Panamick in Ojibwe, to which he responded in Ojibwe with what Ms. Migwans said was “if I did – what happened to him I guess”.
[12] Panamick was transported to Mindemoya Hospital. Once there, he became progressively more responsive as he was being treated. The first really comprehensible thing that he said to Dr. Reade, the doctor treating him, was that he had been “hit with an old fashion broom”. Then, the doctor recalled, before Panamick left, he said “I want them charged” and answered “yes” when asked if he wanted the police called. A nurse caring for him recalled him saying “she did this to me”. Another recalled him responding to the question “why did someone do this to you” with “she wanted money”.
[13] At the Mindemoya Hospital, Panamick was given 3 subdissociative doses of Ketamine for pain relief. Dr. Reade indicated that it can be used in higher doses to make a person unconscious. General information provided from the internet indicated that Ketamine may cause drowsiness for up to 24 hours and this effect may be worse if it is taken with alcohol. Also, it may cause confusion or hallucinations, and the elderly may be more sensitive to its effects.
[14] A blood sample taken from Panamick revealed a blood alcohol concentration of 282 milligrams of alcohol in 100 milligrams of blood at the time the sample was taken, with the caveat that it may have been different (i.e. higher) at the time of incident.
[15] Panimick was air ambulanced to the Health Sciences North Hospital in Sudbury in the early morning of May 12, 2014.
[16] At 12:45 p.m. on May 12, 2014, D/Cst. Dave Mack attended at the ICU department at the hospital and audio recorded an interview with Panamick, of which there is a transcript.
[17] Later that afternoon, Panamick’s sister Hazel Recollet visited and spoke with Panamick who divulged some information about the attack on him. Ms. Recollet then gave a statement to police on May 15, 2014.
[18] Subsequently, Panamick’s brother Henry Panamick visited and also received some information from John Panamick about the attack, which Henry Panamick related in a statement to police.
[19] The following is a summary of the statement Panamick gave to D/Cst. Mack:
• I was sitting there in the house at night- I was sitting on the couch
• Someone knocked on the door
• She was sitting on a chair at the table
• She asked for something to drink, and she didn't have any
• I was drinking wine that night- one bottle -I took it easy on that bottle
• I seen him
• Someone tried to borrow money off of me
• It was a woman
• She was native
• I have never seen her before, from Wiky I think
• It was just the two of us
• She was all by herself
• She was at my house a good half hour
• She asked me if I got any money, I told her yeah, I got a little bit of money saved by my sister, she's got my money
• She came back and asked me about the money
• I said I haven't got it here
• My sister's got it
• I guess she didn't believe me, she kept asking me for it
• I already told you, I don't have the money right now
• I had that bank card
• She hit me with the broom, I got an old broom
• It has a wooden handle
• She was not a very old lady- around 35
• She had almost black hair
• I have never seen her before
• She was wearing black jeans, but not really jeans, and a black coat, but not really a coat, with no markings, and possibly a zipper
• After she left, Luke was the next one to come
• She was the only other person that came to my house
• Luke called the ambulance for me
• Luke saw the light on at the house
• I told Luke to call the ambulance, I couldn't get up
• There was a bank card over at the door, by the front door- she left with the card to go to the General Store
• She said her mom took her to the store that sells alcohol- the General
[20] D/Cst. Mack testified regarding taking that statement. He was in plain clothes, but introduced himself to John Panamick as a police officer trying to learn what had happened. He had dealt with Panamick before and thought that Panamick knew he was a police officer. Panamick knew he was there, he said, as Panamick had nodded in response, taken off his oxygen mask and responded to questions. However, the degree of his responsiveness varied. He did not seem to the officer to be “in left field” or intoxicated. The officer was not aware of the blood acohol measurement, nor the medications that Panamick was on.
[21] The recording was played in court. The officer said that the transcript is as accurate as can be, but that it is difficult to hear at times, and some of what Panamick said was inaudible. Also, from listening to it previously, he thought that there might be a place where it reads “he” instead of “she”, but that he could not discern it this time. Panamick was not sworn or affirmed, and was not warned to tell the truth because, the officer said, of Panamick’s limited level of comprehension.
[22] D/Cst. Mack knew that Panamick’s first language was Ojibwe, but his own Ojibwe was too limited to take a statement in it, so the interview was in English, although he knew that Panamick’s English was poor.
[23] In Hazel Recollet’s statement of May 15, 2014 to police she recalled visiting Panamick in the hospital and asking what had happened. Panamick had indicated, in Ojibwe, and being hard to understand, that an unknown woman had entered his house and asked for money, and that a broom was involved in what had happened. He had mentioned a Michael Panamick, but she did not catch the context of that, such as whether that person was associated with the woman.
[24] In oral testimony on this motion, Ms. Recollet indicated that her communication with Panamick had been in Ojibwe and that his English was not very good. Her evidence was her translation from Ojibwe into English. It was more fulsome than her statement. She acknowledged that she had been at the preliminary inquiry and heard what others had said that Panamick had said which might have affected her memory, but then said that she had not heard what others said at the preliminary inquiry. However, her brother Henry had told her some time after what John Panamick had told him.
[25] When she had asked John Panamick who did it to him and what the person looked like, he had said it was a lady who hit him with a broom and indicated her hairstyle with his fingers on his head. He did not say a name.
[26] Henry Panamick testified at the preliminary inquiry about the statement that he had given to police. He had spoken with John Panamick in Ojibwe and said that they appeared to understand each other. In that conversation, John Panamick had indicated that a woman had wanted money, that she got mad when he told her he did not have any, and that she had hit him with a broom. John Panamick had identified her as “this lady that goes with Clemens”, said her name was “Caroline” and confirmed he meant “that Migwans girl, Caroline”.
CROWN’S POSITION
[27] The Crown submitted that the statements can be deemed to be sufficiently reliable as they were given in circumstances that make it unlikely that John Panamick was motivated to do anything but tell the truth about his observations. In particular, D/Cst.. Mack explained at the outset that he was a police officer and why he was there. Also, the statements were made in circumstances that can sufficiently satisfy the court that Panamick was aware of the seriousness of the situation that he was in. For example, he had arrived at the Sudbury hospital by air ambulance, was in ICU there, and was on oxygen.
[28] After he was injured and once he was in the care of the medical team at the Mindemoya Hospital, he began receiving treatment that progressively revived him. He was able to give the nurses some information as to what had led to his injured state. The information he provided was minimal but consistent with the more detailed accounts that he later gave to the police and his siblings, all within a short time after he was injured. The details that he incrementally disclosed are consistent with other information that the police gathered in the investigation, including the details provided by the accused himself.
[29] Although Panamick described the assailant as female, and identified her as a specific person, the Crown submitted, that did not detract from the reliability. Panamick’s account was said to be arguably consistent with the evidence that led to the prosecution of the accused for this offence:
a. John Panamick, in response to questions from his brother Henry, indicated that the perpetrator was Carole Migwans. Photographs taken of her and of the accused depicting how they both looked on the date of the offence bear a striking resemblance.
b. John Panamick described clothing of his assailant and the description matched the clothing worn by the accused.
c. The accused is seen going in and out of the house prior to Luke Anwhatin finding Panamick injured.
d. The accused admits being at the residence.
e. The accused’s DNA is on the broom.
f. Panamick’s DNA is on the accused’s sweater, shoes and jeans.
g. Paint chips similar to the paint on the broom handle are on the accused pants.
h. The accused admits to having possession of Panamick’s bank card.
i. The accused is in possession of a bank card.
j. The accused had asked another witness to drive him back to Panamick’s to get the PIN number for the card.
k. That witness saw the accused standing over the prone Panamick asking for the PIN number.
l. The accused’s mother was in town that day.
m. Panamick kept a bank card at his residence.
n. Panamick’s sister kept care of his money.
[30] Overall, the Crown submitted that there are sufficient indicators of reliability to satisfy the court on a balance of probabilities that the statements of Panamick can be admitted into evidence. The Crown also submitted with respect to trial fairness that it would be unfair to withhold from the jury reliable evidence that could be useful to both sides.
ANALYSIS
[31] I turn first to the second way of fulfilling the reliability requirement that is set out in R. v. Khelawon, being the substitutes for the “attributes of in-court testimony that provide the usual safeguards of reliability”, (par. 73, 79). None were made under oath or affirmation. There were no warnings as to the significance of such, or the existence of sanctions for not telling the truth. The statements were not videotaped although the one to the police was audio recorded. Obviously, there is no opportunity to cross-examine the deceased. So, although there is a record of what was said to the police, the truth and accuracy of that statement and even more so the ones to Hazel Recollet and Henry Panamick cannot be sufficiently tested.
[32] I turn next to the circumstances in which the statements came about.
[33] As for John Panamick having a motive to falsify his story, there is no evidence either way.
[34] I have a concern about Panamick’s perception. Although there is evidence that Luke Anwhatin found Panamick injured after checking on him in response to seeing lights on in the house, an ambulance attendant, Jeanine Debassige, testified at the preliminary inquiry that the residence was dimly lit.
[35] In addition, there is evidence that Panamick had consumed a substantial amount of alcohol. Whether from that, or from his injuries, or both, he was initially almost unresponsive, although that improved following the initiation of treatment. Medications that he was administered had the potential to impact his perception, but as to whether they did or not, given the dosages, his age and condition, and any interactions, including with alcohol, there is little evidence. D/Cst.. Mack said that Panamick’s responsiveness fluctuated during the interview. Indeed, Mack testified that he had not had Panamick swear or affirm to tell the truth, and had not warned him to tell the truth, because of Panamick’s limited level of comprehension.
[36] Furthermore, there is a question around language. The statement to police, being the longest, the most detailed and the only one that was recorded, was in English, which was not Panamick’s first language, but one he was said to be poor in. Whether from that or other cause, there appears to be some confusion at points in the interview.
[37] The various statements to others tool place soon after the subject events. Therefore, Panamick’s memory of those events that he perceived could be expected not to be affected by time. The answer here is more to do, again, with perception.
[38] Beyond that, there are the usual concerns about witnesses’ testimony. While there is a recording of the statement to police, what is known of what Panamick said to Hazel Recollet and Henry Panamick is what they recall. In Recollet’s case, it is apparent that her version became more fulsome over time. It is at least possible that her memory has been affected by what she heard from others after her conversation with John Panamick.
[39] I next turn to the Crown’s submissions that the similarities between Panamick’s statements and other evidence support the reliability of what he said. Indeed, there are a number of points in Panamick’s statements which do agree with evidence from other sources, or at least are not inconsistent with them.
[40] However, there are also points which differ. For example, Panamick said his injuries were caused by a broom, whereas the autopsy report says possible mechanisms were kicking and stomping, although “the broom handle recovered from the scene (could not) be excluded as the weapon used to inflict some of the injuries”.
[41] Significantly, I think, the accused was seen going in and out of Panamick’s residence that day and admits to having been there, although for some innocent purposes, and to having been there on previous occasions. However, Panamick’s statement that says he had never seen “her”, the assailant, before. His description of the clothing of the assailant is imprecise and general. However, specifically, he said that there were no markings on the “coat”. This contrasts with the description of the item of clothing that the accused described wearing and that the police recovered which had three wolves on it. Also, as noted, Panamick described his assailant as a woman, specifically Carole Migwans. Even taking into account the possibility that the accused and Carole Migwans had a similar appearance in the head, face and hair, as the Crown submits, I find that Panamick’s identification of a strange woman as the assaillant points to the inherent unreliability of the statement if, as the Crown contends, the assaillant was in fact the accused. Therefore, I do not find that the statements are so similar to the evidence from other sources that they can be accepted as reliable.
[42] Ultimately, then, I find that the Crown has not met the onus of establishing that this presumptively inadmissible evidence, the hearsay statements of John Panamick, is sufficiently reliable to be admitted under the principled approach to the hearsay rule.
Justice J. A. S. Wilcox
Released: November 1st, 2016
CITATION: R. v. Corbière, 2016 ONSC 6817
COURT FILE NO.: CR-16-0004
DATE: 20161101
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kimel Corbière
Respondent
DECISION ON CROWN’S APPLICATION TO ADMIT STATEMENTS OF JOHN PANAMICK
Justice J. Wilcox
Released: November 1st, 2016