Court File and Parties
COURT FILE NO.: 8535-13 DATE: 20170323 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 22, 2017
KGB Ruling No. 2
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.
Overview
[1] Mr. Johnson is on trial for murder. The Crown posits that he beat his roommate, Richard Skupien, to death on August 23, 2013.
[2] There is a genuine live issue regarding the cause of Mr. Skupien’s death. A pathologist is expected to opine that he died as a result of a severe beating. Should the Crown succeed in satisfying the jury about causation, to the reasonable doubt standard, they must then satisfy the jury that Mr. Johnson at least participated in the beating in a culpable way.
[3] The Crown’s case is entirely circumstantial. Motive is one aspect of their circumstantial case. It is significantly implicated in the issue of identity, but arguably engaged in the matter of causation as well.
[4] The Crown’s position on motive, to the extent known to the court at this stage of the proceedings, is that Mr. Johnson bore an animus towards Mr. Skupien and that animus ultimately led him to beat Mr. Skupien to death.
[5] Earlier I ruled on a Crown application to adduce prior disreputable conduct evidence relevant to the relationship between Mr. Johnson and Mr. Skupien. The purpose of the evidence is to support the Crown’s assertion of a level of animus held by Mr. Johnson towards Mr. Skupien. I generally ruled in the Crown’s favour. My reasons are reported at 2017 ONSC 905.
[6] A small portion of the evidence relating to animus was intended to come through a witness named Ghayour Nassirnia. Mr. Nassirnia was the agent of the landlord of the apartment occupied by Mr. Johnson and Mr. Skupien. Mr. Nassirnia was expected to testify that he overheard Mr. Johnson scream at Mr. Skupien about paying the rent and cleaning the apartment. Unfortunately, when it came time for him to testify at trial, he could no longer remember these incidents.
[7] Crown counsel attempted to refresh his memory by referring him to evidence he gave at the preliminary hearing in November 2015. The attempt failed. The Crown now seeks to tender his preliminary hearing testimony, or at least small excerpts of it, as substantive evidence pursuant to the principled exception to the hearsay rule. Defence counsel object, arguing that the preliminary hearing evidence is not sufficiently reliable to be left with the jury for consideration.
The Preliminary Hearing Evidence
[8] The evidence engaged in this application is located over about four pages of the transcript of Mr. Nassirnia’s preliminary hearing evidence. It begins with the Crown’s question, “Do you recall if you ever saw them (Mr. Johnson and Mr. Skupien) arguing?” Mr. Nassirnia answered, “No, I haven’t witnessed that”. The Crown asked him to refresh his memory by re-reading a statement he gave to the police on an earlier occasion. Having refreshed his memory, he related an incident where he attended to collect the rent and overheard Mr. Johnson ordering Mr. Skupien, in a loud voice, to do the dishes.
[9] Immediately after that exchange between Crown and witness, the Crown asked, “Do you recall if there were any other occasions?” Mr. Nassirnia responded, “Um, I don’t remember any”. Again, the Crown sought to refresh his memory with his police statement. In fact, he was referred to the very same part of his police statement that he had read only moments before. After refreshing his memory a second time he related another incident where he heard Mr. Johnson scream at Mr. Skupien to get the rent money.
The Legal Framework
[10] This is the second KGB application in this trial. I will, in the circumstances, only briefly outline the legal test to be applied when a party seeks to introduce an out-of-court statement as substantive evidence under the principled exception to the hearsay rule.
[11] An application of this nature gets its name from the Supreme Court’s decision in R. v. B. (K.G.), [1993] 1 S.C.R. 740 (“KGB”). KGB was one of a series of cases released by the Supreme Court over a period of about 15 years that identified and developed a principled approach to the admission of hearsay evidence. Other cases included R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; and R. v. Khelawon, 2006 SCC 57.
[12] 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.
[13] Necessity may be established not only where a witness is no longer available to testify, but also where evidence is no longer available because a witness recants or cannot remember events he or she referred to on an earlier occasion. In this instance, Mr. Nassirnia can no longer remember the “dishes” incident or the “rent” incident and accordingly that evidence will be lost to the Crown if the witness’ prior statements are not admitted as substantive evidence.
[14] Defence counsel concedes that the necessity requirement is made out in this instance. The only issue in dispute is reliability.
The Reliability Issue
[15] At the admissibility stage, the court’s function involves the assessment of threshold reliability as opposed to ultimate reliability. The issue of ultimate reliability – what, if any, reliance is to ultimately be placed on the evidence – is a matter for the jury: R. v. Khelawon, as above, at para. 2. The present question is whether there are sufficient indicia of reliability present to enable the jury to sufficiently test the truth and accuracy of the evidence, notwithstanding the absence of contemporaneous cross-examination.
[16] 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.
KGB, paras. 85 – 104.
[17] The Crown asserts that the traditional indicia of reliability are all present. Moreover, they point to the Supreme Court’s ruling in R. v. Hawkings, [1996] 3 S.C.R. 1043 as supportive of the submission that recorded preliminary hearing testimony generally meets the requirements of KGB. In Hawkings, the majority held as follows, at para. 79:
…[A] witness's recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact's inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.
[18] Defence counsel concede that the traditional indicia of reliability are present here. Nevertheless, they point to peculiarities in Mr. Nassirnia’s preliminary hearing evidence that, in their submission, undermine the reliability of that evidence.
[19] In particular, Mr. Nassirnia was asked at the preliminary hearing to review his police statement. He was asked if he had reviewed it prior to testifying. He said that he had done so about a half hour ago. Yet he did not, thirty minutes later, remember its contents. He was then asked to look at a portion of it again. He did so. When asked if it refreshed his memory he said, “Yes, yeah, yeah.” But then when asked if he recalled any occasions when he saw Mr. Johnson and Mr. Skupien arguing, he said, “…what I said there was…”
[20] Only minutes later he was asked about whether there were any other incidents he recalled. He did not recall any. He was then referred to the same passage from his police statement to read yet again – now the third time in thirty minutes. He then related the “rent” incident that he purportedly overheard.
[21] Defence counsel argue that considered together, the preliminary hearing evidence of Mr. Nassirnia makes it apparent that he had no recall of the events he testified about and instead was simply regurgitating what he read in his police statement. If that was so, they argue his preliminary hearing evidence has no reliability because there was no genuine recollection.
Discussion
[22] There is much to be said for the defence argument. There are definitely reasons to be concerned about Mr. Nassirnia’s recollection.
[23] In my view, on the face of the preliminary hearing transcript, Mr. Nassirnia testified that his recollection was refreshed and he essentially adopted the statements he had previously made to the police. I do not consider it to be my function, on an assessment of threshold reliability, to look beyond his confirmation that his recollection was refreshed.
[24] My function, at this stage, is to determine whether there are sufficient indicia of reliability present to satisfy me that either (1) the contents of the statement are trustworthy; or (2) the prevailing circumstances permit the jury to sufficiently assess the worth of the statements: Khelawon, as above, at paras. 62-63. While concerns about the genuineness of Mr. Nassirnia’s refreshment at the preliminary hearing may arguably undermine the trustworthiness of the evidence, there remain, in my view, circumstances that will enable the jury to sufficiently assess the worth of the statements.
[25] This is a situation where evidence important to the Crown’s case – though clearly not profoundly so – may be lost due to the impact of the passage of time on a witness’ recollection. Accurate fact-finding is the ultimate goal of any trial. As Justice Charron observed in Khelawon, as above, at para. 2, the rule against hearsay is intended to enhance accurate fact-finding. At times, however, the exclusion of evidence may do more to impede than enhance the jury’s ability to accurately determine the facts of a case. In those circumstances, provided the twin criteria of necessity and reliability are made out, the principled approach to hearsay evidence favours admission.
[26] In the circumstances of this case, Mr. Nassirnia gave evidence at the preliminary hearing. That evidence was under solemn affirmation and in the presence of opposing counsel who had an opportunity to cross-examine him then. The transcript is clear that his memory had to be refreshed – twice – by a statement he previously gave to the police.
[27] Mr. Nassirnia is present to give evidence at trial. He is available for cross-examination. He has indicated that he cannot remember the statements referred to in his preliminary hearing evidence. He has not yet been asked to attempt to refresh his memory with his police statement. His ability to observe, recall and recount the incidents in question can be fully probed by defence counsel on cross-examination. The jury will be in a very good position to assess his recollection and the ultimate reliability of his evidence regarding both the “dishes” and “rent” issues.
[28] In my view, the statements meet the KGB criteria for admission. The circumstances present will enable to jury to sufficiently test their worth.
[29] Given the peculiar circumstances here – that Mr. Nassirnia had to be refreshed with his police statement at the preliminary hearing – I believe that it is appropriate that Crown counsel seek to refresh his memory with his police statement before entering excerpts from his preliminary hearing transcript as substantive evidence. Should those statements once again serve to refresh his memory, then there will be no need to resort to hearsay evidence. Moreover, the jury will then have a more fulsome picture of the narrative and be in a better position to assess the strength of his recollection, or the lack thereof.
[30] I believe counsel are agreed on the relevant portions of his preliminary hearing transcript to be read in, should the police statement fail to refresh Mr. Nassirnia’s memory. If I am mistaken, I may be spoken to on that issue.