R. v. Kaitlyn Deidra Trudeau, 2017 ONSC 3441

Court File and Parties

COURT FILE NO.: CR 16-006 DATE: 20170704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Kaitlyn Deidra Trudeau

BEFORE: The Hon. Mr. Justice R. Dan Cornell

COUNSEL: Mr. Beaton, Counsel for the Crown B.J. Allison, Counsel for the Accused

HEARD: April 24, 2017

Endorsement on Crown’s Khan Application

[1] On April 24, 2017, I granted the Crown’s Khan application to permit an audio/visual statement provided by Hailey Saikkonen to the police to be used by the jury as substantive evidence. I now take the opportunity to provide my reasons for granting the application.

[2] Ms. Saikkonen testified for the Crown and provided a detailed version of events. During the course of cross-examination, Ms. Saikkonen acknowledged that she did not really recall the incident itself, but rather her evidence was based upon the various statements that she had given. When she made this acknowledgement, she also acknowledged that her memory of events had been better shortly after the incident occurred including the time that statements were given to the police.

[3] As a result of this development, the Crown brought a Khan application to have the audio/visual statement that was taken by Sergeant Fox on the day of the incident be tendered as substantive evidence.

[4] It was conceded by the defence that the requirement for necessity had been established given Ms. Saikkonen’s lack of memory of the events in question. Thus, only the question of threshold reliability remained to be answered.

[5] R. v. Three Fingers, 2016 ABCA 225, 41 Alta. L.R. (6th) 218, provides a concise summary of threshold reliability, setting out that it can be established in two, non-mutually exclusive ways: para. 34. Procedural reliability can be established where the truth and accuracy of a statement can be sufficiently tested, for example where the declarant is available for cross-examination at trial. Substantive reliability can be established where there is no real concern about whether the statement is true or not because of the circumstances in which the statement came about. See also R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 62-63, and R. v. Bradshaw, 2017 SCC 35, at para. 27.

[6] In this case, the statement was given to a uniformed officer at the police station during the afternoon of the day upon which the incident occurred. It is an audio/visual statement. For all intents and purposes, there was no leading or prompting by the officer who conducted the interview.

[7] Defence counsel points out that no oath was administered nor was the witness’ attention drawn to the fact that there might well be consequences if a truthful statement was not provided. In addition, defence counsel took the position that the witness had a motive to lie.

[8] If the application was granted, the Crown undertook to recall the witness so that she would be available to be cross-examined. This would permit the defence to test the truth and accuracy of the statement and thereby provide a measure of procedural reliability.

[9] I am satisfied that the threshold reliability of the hearsay statement in question was established by the procedural and substantive reliability that I have referred to.

[10] I am satisfied that the jury could sufficiently test the truth and accuracy of the statement.

[11] I am also satisfied that there were no overriding policy concerns that would dictate that the statement should be excluded as I was satisfied that the probative value of the statement exceeded its prejudicial effect.

[12] Accordingly, I ruled that the audio/visual statement provided by Ms. Saikkonen to Sergeant Fox could be introduced by the Crown as substantive evidence to be considered by the jury.

The Honourable Mr. Justice R. Dan Cornell Date: July 4, 2017