Court File and Parties
COURT FILE NO.: 8535-13 DATE: 20170308 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KENNETH JOHNSON Defendant
Counsel: Peter Westgate and Michael Ventola for the Crown Mary Cremer and Colin Sheppard for the Defendant
HEARD: March 8, 2017
Ruling on KGB Application
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Boswell J.
Introduction
[1] Richard Skupien died on August 24, 2013. This is a trial about whether his roommate, Kenneth Johnson, caused his death by beating him up. And if he did, whether he intended to kill him.
[2] Mr. Skupien had a girlfriend for about a year prior to his death. Her name is Michelle Paul. To be entirely accurate, they were no longer dating at the time of Mr. Skupien’s death; they had broken up about a week or two prior to then.
[3] Ms. Paul gave a video-taped statement to the police on August 30, 2013. In the fall of 2015 she testified at the preliminary hearing in this case. The Crown has transcripts of her evidence from both occasions.
[4] Ms. Paul was called as a Crown witness at trial. She has been examined in chief over a period of about a day and a half. She has testified, at numerous points, that she is unable to recall details about matters she spoke of in her earlier statements. The Crown has attempted, with varying degrees of success, to refresh her memory by providing her with an opportunity to review her prior statements.
[5] This is a blended application. The Crown seeks leave, under s. 9(2) of the Canada Evidence Act (CEA), to cross-examination Ms. Paul on several discrete, prior statements she made that are purportedly inconsistent with her trial evidence. The Crown is not looking to impeach Ms. Paul on any of her testimony. The hope is that she will adopt her prior statements as her trial evidence.
[6] In the event that the cross-examination fails to result in adoption, the Crown seeks to tender those discrete parts of her transcripts as substantive evidence. In the result, a KGB voir dire was triggered.
[7] Typically, s. 9(2) and KGB applications are dealt with distinctly. They were blended in this case for two main reasons. The first has to do with efficiency. The second is that the issues engaged in the two applications tend to overlap in this instance.
The Evidence in Issue
[8] There are essentially three areas of evidence in contention.
[9] To appreciate the dispute about the evidence, it is necessary to understand a little about the Crown’s case in general.
[10] Mr. Johnson is charged with second degree murder. It is alleged that he assaulted Mr. Skupien on the night of August 23, 2013. The Crown posits that the cause of death was cardiac arrest brought on by an internal bleed associated with a ruptured spleen. I expect that evidence will be tendered from a forensic pathologist that Mr. Skupien had several broken ribs and that one of the fractured ribs perforated the spleen. I further expect the pathologist to opine that injuries apparent on autopsy are consistent with a severe beating.
[11] Cause of death is a live issue in this case. So are the issues of identity and intent.
[12] The Crown brought a pre-trial application seeking a ruling about the admissibility of evidence of Mr. Johnson’s prior disreputable conduct. All of the identified conduct had to do with the nature of the relationship between Mr. Johnson and Mr. Skupien. I released a ruling on February 7, 2017 that dealt with that application and it is reported as 2017 ONSC 905. In the ruling I held that specific, identified evidence of prior disreputable conduct involving Mr. Johnson was admissible in evidence to provide context to the relationship between Mr. Johnson and Mr. Skupien and to demonstrate possible animus between them; more particularly animus by Mr. Johnson towards Mr. Skupien. The presence of such animus may be circumstantial evidence of identity and intent.
[13] Against this general background, the following items of evidence are in issue.
The Birthday Incident
[14] One of the identified incidents of prior disreputable conduct allegedly occurred on Mr. Skupien’s birthday - August 15, 2013. Evidence about what happened that night was expected to be tendered primarily through Ms. Paul.
[15] In her statement to the police on August 30, 2013, Ms. Paul indicated that she went to visit Mr. Skupien at his apartment on August 15, 2013 because she wanted to see him on his birthday. She said she went into the bathroom and all of a sudden heard a commotion and Mr. Johnson was screaming. She said she heard banging, like “he” was up against the wall. She came out of the bathroom and saw Mr. Skupien up against the sink in the kitchen. She said she went to sit down and all of a sudden Mr. Johnson “flipped out” and told her to “get the fuck out of here”. In the meantime, Mr. Skupien had a terrified look on his face. Mr. Johnson then grabbed her arm and tried to throw her down the stairs out of the apartment, but she grabbed a rail to brace herself. Then she left.
[16] At trial, Ms. Paul testified that she was at Mr. Skupien’s apartment on August 15, 2013. She got up to go to the bathroom. When she was in the bathroom she heard Mr. Johnson screaming. She thought he might have been yelling at her; accusing her of doing drugs in the bathroom. At another point she testified that she thought Mr. Johnson was yelling at Mr. Skupien. She said that when she came out of the bathroom, Mr. Skupien was in the kitchen up against the sink. He had a scared look on his face; he looked terrified.
[17] Ms. Paul went on to testify that Mr. Johnson wanted her to leave. It was, coincidentally, his birthday too and he apparently wanted to celebrate alone with Mr. Skupien. After refreshing her memory with her August 30, 2013 transcript, she recalled that Mr. Johnson was yelling at her and she thinks he told her to get out. Mr. Skupien mouthed the words, “just go”. She said Mr. Johnson grabbed her arm, but doesn’t think he meant it. She was by the front door at the time. He tried to nudge her down the stairs, but she grabbed hold of the railing.
[18] She could not recall hearing a banging noise, even after her memory was refreshed.
The Phone Call
[19] In her August 30, 2013 statement Ms. Paul also stated that “it was weird” how Mr. Skupien acted whenever Mr. Johnson called him. She said he would “sound like a little kid”. It made her think that Mr. Skupien was afraid of Mr. Johnson.
[20] At trial she said that when she was with Mr. Johnson and Mr. Skupien they appeared to get along very well. She added that she thought Mr. Skupien was a little afraid of Mr. Johnson, but she can’t be 100% sure. She said that one time, Mr. Skupien had been at her place for a few days. Mr. Johnson called for him to come home. Mr. Skupien left. It seemed odd to her because he wasn’t normally the type of person to jump on command. But he did when Mr. Johnson called him.
The Misinterpretation
[21] Finally, Ms. Paul was asked at trial if Mr. Skupien said stupid things and took things the wrong way sometimes when he had been drinking. She said she could not recall. At the preliminary hearing she answered those questions in the affirmative.
The Legal Framework
The s. 9(2) Application
[22] It is generally not permissible for counsel to subject their own witnesses to cross-examination. There are, however, exceptions to this general rule.
[23] Section 9(2) of the CEA grants the court jurisdiction to permit cross-examination of a party’s own witness on a prior statement in a form inconsistent with the witness’ trial testimony. There are a number of express requirements. First, the statement must be inconsistent with the witness’ trial testimony. Second, it must be in writing, reduced to writing, recorded on audio or video tape, or otherwise recorded.
[24] Even if the express requirements of the section are satisfied, cross-examination is not automatic. It remains in the court’s discretion. According to the governing appellate authority, leave should be granted in cases where cross-examination would serve the ends of justice: R. v. Boyce, 2014 ONCA 150.
[25] If leave is granted, counsel will not be permitted to cross-examine at large, but must be focused on the statement, or those parts of the statement, that formed the basis of the application.
[26] Absent adoption of the prior statement, the jury may generally only utilize it for the purpose of assessing the credibility and/or reliability of the witness’ testimony.
The KGB Application
[27] Historically, out-of-court, prior inconsistent statements of a non-accused witness could only be utilized for impeachment purposes, unless the witness adopted the content of the prior statement as his or her trial testimony.
[28] The use of prior inconsistent statements as substantive evidence was the subject of the Supreme Court’s decision in KGB. KGB was one case in series of Supreme Court decisions that developed and refined a principled approach to the admission of hearsay evidence.
[29] According to KGB, a prior inconsistent statement of a non-accused witness may be entered into evidence as proof of its contents where the threshold requirements of necessity and reliability are established. The party seeking to tender the statement(s) as substantive evidence must establish necessity and reliability on a balance of probabilities.
[30] The KGB process typically involves three stages:
(a) First, the prior statement is put to the witness in an attempt to refresh her memory;
(b) Next, if the witness’s memory is not refreshed and if the witness fails to adopt the prior statement, the party tendering the witness applies to cross-examine the witness pursuant to s. 9(2) of the Canada Evidence Act;
(c) Finally, after having utilized the tool of cross-examination pursuant to s. 9(2), if the witness still fails to adopt the prior statement, counsel will be left with two choices. If counsel is content to utilize the prior inconsistent statement to merely impeach the witness, then the matter is at an end. If, however, counsel seeks to tender the prior statement as substantive evidence, then the trial judge must continue with a voir dire to determine if the threshold requirements of necessity and reliability are met.
[31] The Crown has, thus far, completed the first step of the KGB process. Leave is sought to cross-examine the witness under s. 9(2) and to introduce any non-adopted statements as substantive evidence.
The Threshold Requirements
Necessity
[32] Hearsay utterances are frequently sought to be admitted pursuant to the principled exception because a witness is unavailable. In the case of KGB applications, the witness is not only available but has in fact provided in-trial testimony. Necessity in these circumstances arises not because the witness is unavailable, but because testimony is unavailable.
[33] In the classic KGB case, testimony becomes unavailable because a witness recants his or her prior statements. Recantation, however, is not a requirement. In fact, necessity is made out whenever relevant and otherwise admissible evidence is not available. As Justice Watt observes in his Manual of Criminal Evidence, 2016, at para. 28.02, there is no closed list of what constitutes necessity; necessity arises in circumstances wherever evidence of equivalent value is not available from the witness.
[34] In R. v. Khelawon, 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.), at para. 49, Justice Charron described the criterion of necessity as being “founded on society’s interest in getting at the truth”. Circumstances may occur where hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impeded accurate fact finding.” (Khelawon, para. 2).
Reliability
[35] In KGB applications, regard is traditionally had to the following factors or indicia of reliability:
(a) Whether the prior statement was made under oath or solemn affirmation, following an indication by the taker of the statement about the consequences of giving a false statement;
(b) Whether the entirety of the statement has been video recorded; and,
(c) Whether the maker of the statement is available for full cross-examination by opposing counsel in the course of the trial.
[36] The law does not require slavish adherence to the indicia of reliability that I have just outlined. There may be substitutes for the traditional indicia – other circumstantial guarantees of reliability and trustworthiness. At the same time, there may be other factors present that undermine reliability despite the presence of what I have identified as the traditional indicia.
[37] In this instance, the traditional indicia are present with respect to both the August 30, 2013 police statement and the preliminary hearing testimony. In both instances, Ms. Paul’s evidence was given under oath. Prior the police statement, Officer Fiore explained to Ms. Paul the consequences of giving a false statement. Those consequences were not repeated at the preliminary hearing, but I am satisfied that Ms. Paul was aware, when testifying at the preliminary hearing, that it was important that she tell the truth.
[38] She also testified here that she did her best to be truthful on both prior occasions.
[39] The police statement was video-recorded in its entirety. The preliminary hearing was not videotaped, but an official transcript has been prepared of Ms. Paul’s evidence.
[40] Finally, Ms. Paul is available for full cross-examination in the course of the trial.
[41] It is important to recognize that the court’s function at this stage is to assess threshold reliability only. The issue of ultimate reliability – what, if any, reliance is to be placed on the evidence – is a matter for the jury: R. v. Khelawon, as above, at para. 2.
The Parties’ Positions
[42] The Crown’s position is relatively straightforward. They assert that there are inconsistencies in important areas of Ms. Paul’s testimony when compared to evidence she gave in her police statement on August 30, 2013 and in her preliminary hearing testimony.
[43] The prior statements have been recorded. They were made under oath. Ms. Paul has testified here that she was doing her best to tell the truth on both occasions.
[44] There are no circumstances here, in the Crown’s submission, that would undermine the reliability of her earlier statements. In any event, she is present and available for full cross-examination at trial. Moreover, she was cross-examined contemporaneously with the evidence given at the preliminary hearing.
[45] The defence position is that there are serious reliability concerns with respect to Ms. Paul’s August 30, 2013 statement. These concerns are so profound that they undermine both the s. 9(2) application and the KGB application.
[46] Defence counsel argue that Ms. Paul presented during her police interview as clearly under the influence of alcohol or drugs. She had large eyes with dilated pupils. She had difficulty focusing and required a number of questions to be repeated. She had tussled hair. She appeared drowsy at times. She slurred some of her words. She expressly identified that she has memory problems and in fact could not remember significant events that had occurred only a week earlier.
[47] It would, in the defence submission, be dangerous and unfair to Mr. Johnson to permit the Crown to put these statements to Ms. Paul when they are so inherently unreliable. Any reference to these statements tends to distort, rather than enhance, the truth-finding function of the trial process.
[48] Finally, the defence argues that, for the most part, the statements in issue involve prior disreputable conduct evidence whose prejudicial impact on Mr. Johnson will exceed its probative value to the jury.
Discussion
[49] I will assess the admissibility of each tendered statement individually.
The Birthday Incident
[50] In any application concerning the admissibility of evidence, it is critical to not lose sight of the following basic premise: evidence is admitted in a criminal trial where it is relevant, material and not subject to a specific rule of exclusion: R. v. Candir, 2009 ONCA 915, at para. 46.
[51] In this application, the Crown’s ultimate goal is to tender, as substantive evidence in this trial, statements made by Ms. Paul to the police, on August 30, 2013, and to the court, on November 19, 2015.
[52] The applications before the court were framed in a manner intended to address the hearsay nature of the statements. Hearsay evidence is presumptively inadmissible.
[53] There is another rule in play, however, that in my view is dispositive of most of the statement evidence on offer with respect to the birthday incident.
[54] Propensity evidence – evidence which does nothing more than blacken the character of the accused person – is, like hearsay evidence, presumptively inadmissible.
[55] Evidence of prior disreputable conduct is a classic form of propensity evidence. It is not admissible as part of the Crown’s case unless the Crown is able to demonstrate that it is probative of a live issue in the case and that its probative value will outweigh the significant prejudice likely to accrue against the accused should the evidence be introduced: see R. v. Handy, 2002 SCC 56.
[56] As I noted above, the Crown brought a pre-trial application seeking a ruling permitting it to introduce prior disreputable conduct evidence against Mr. Johnson. I ruled in the Crown’s favour on that application, which related to evidence specifically relating to the relationship between Mr. Johnson and Mr. Skupien.
[57] Although the Crown’s pre-trial application included evidence about events that transpired on August 15, 2013, it did not specifically deal with Mr. Johnson’s conduct towards Ms. Paul.
[58] The Crown has adduced evidence through Ms. Paul’s trial testimony that she went to visit Mr. Skupien at his apartment on his birthday. She got up to use the bathroom. While in the bathroom she heard Mr. Johnson screaming. She came out and saw Mr. Skupien up against the sink with a terrified look on his face. All of this evidence was admissible pursuant to my earlier ruling.
[59] The Crown went on to adduce evidence that Mr. Johnson yelled at Ms. Paul, told her to leave, grabbed her arm and “nudged” her down the stairs in such a way that she needed to grab on tightly to a railing. She then appeared, in tears, at a neighbour’s apartment. Reasonable people may differ about the admissibility of any of this further evidence arising from events as they unfolded on August 15, 2013. It went in without objection, likely because it essentially completes the narrative of events on that evening.
[60] The Crown now wants to introduce additional details of the events of August 15, 2013 through Ms. Paul’s police statement. Those details include evidence that Mr. Johnson yelled at Ms. Paul to “get the fuck out”; that he forcefully grabbed her arm; and that he tried to push her down the stairs.
[61] None of the foregoing details relate to Mr. Johnson’s relationship with Mr. Skupien. None was subject to the pre-trial ruling regarding prior disreputable conduct. It is evidence that is presumptively inadmissible. It has a tendency to portray Mr. Johnson as a person with a short temper and/or with a general propensity for violence. I have not been persuaded that its probative value to a live issue in these proceedings exceeds the obvious prejudice that would inure to Mr. Johnson from its introduction. In my view, it is inadmissible.
[62] One detail found in the August 30, 2013 statement and not recalled by Ms. Paul at trial arguably does relate to the purported altercation between Mr. Johnson and Mr. Skupien. Specifically, evidence that Ms. Paul “heard a bang” while she was in the bathroom. That said, the evidence about the bang is quite vague. In my view, this evidence amounts to a minor detail and not a significant enough inconsistency between her trial testimony and her prior statement to warrant cross-examination under s. 9(2), much less introduction of the statement as substantive, KGB evidence.
The Phone Call
[63] Ms. Paul’s trial testimony regarding Mr. Skupien’s response to a call he received from Mr. Johnson asking him to come home does not, in my view, differ materially from the evidence she gave in her police statement.
[64] There are some details in the police statement – the speaking like a child, for instance – that are absent from the trial testimony. But in pith and substance, the evidence amounts to the same thing: Mr. Skupien was afraid of Mr. Johnson and he jumped when called. In my view it is substantially the same thing. The trial evidence is not qualitatively different from the police statement.
[65] In light of the minor discrepancy between the trial evidence and the police statement, I am not satisfied that the ends of justice favour cross-examination by the Crown of its own witness on this issue. For the same reasons, the application to introduce this part of the statement as KGB evidence fails.
The Misinterpretation
[66] I accept, and defence counsel conceded, that there is an inconsistency between Ms. Paul’s trial testimony and the evidence she gave at the preliminary hearing regarding Mr. Skupien’s demeanour when intoxicated. Specifically, she testified at the preliminary hearing that he would say stupid things and would often misconstrue things that other people said when he was inebriated. At trial she could not recall whether these things were true.
[67] To be candid, from my current vantage point, I do not see how this evidence is relevant to any of the live issues in this proceeding. Though Ms. Paul could not remember these specific aspects of Mr. Skupien’s demeanour when drunk, she did testify that he could essentially be a belligerent jerk when he was drunk. Indeed, it appears to have been a significant factor in the breakdown of their relationship. In my view, the point – to the extent it is relevant at all – is already made by evidence in the record. As such, even if this evidence is logically relevant – and I am not satisfied that it is – it is not legally relevant.
Conclusion
[68] In the result, I am not satisfied that this is a proper case to grant leave to the Crown to cross-examine Ms. Paul on prior statements under s. 9(2) of the CEA. Nor am I satisfied that any of her prior statements ought to be admitted as substantive evidence pursuant to the ruling in KGB.