CITATION: R. v. Merritt, 2017 ONSC 6203
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 2017-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
Counsel: Brian McGuire and Eric Taylor, for the Crown David Berg and Joel Hechter, for Melissa Merritt Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore
HEARD: October 12, 2017 at Brampton
RULING No. 16: Application to Admit Additional Ante-Mortem Statements
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.
F. DAWSON J.
[1] I dealt with the admissibility of ante-mortem statements made by two of the deceased in this case in Ruling No. 3 (R. v. Merritt, 2016 ONSC 7024) which was released November 11, 2016. That was the third of a series of pre-trial applications which occupied my time exclusively for a period of one year.
[2] Based on my ruling and the previous agreements between counsel about the admissibility of a number of such ante-mortem statements, Crown counsel edited the actual recordings and transcripts to comply with my ruling and the agreement of counsel. As a video recorded statement of the deceased Bridget Harrison was about to be played for the jury Ms. Myers, for the accused Christopher Fattore, advised me that she had just come to the decision that she wanted the jury to hear an additional portion of Bridget Harrison’s video recorded statement. The passage in question was not the subject of my prior ruling but it was included in the prior agreement of counsel as to what would go before the jury. Crown counsel takes the position that this additional passage does not meet the threshold for admissibility under the principled approach to the admission of hearsay.
[3] Needless to say, this last minute change of position is disruptive of an orderly trial. It is particularly concerning given the devotion of one year of court time to the resolution of pre-trial applications. In a post Jordan[^1] environment the court should be in a position to confidently dispose of such matters on the basis that they were not raised when they should have been. At the moment, however, there is reason to believe that doing so could imperil the result of a lengthy trial proceeding. Perhaps in future cases appellate authority will be developed to provide trial courts with more comfort in enforcing the rules of the court and the agreements counsel have reached during pre-trial proceedings.
[4] I also point out that what has occurred undermines counsel on both sides working together to reach agreements about how to proceed. Having reviewed the original unedited statement it is apparent counsel reached agreements about what to include and exclude from the video statement in question that were not the subject of my ruling. No doubt there was give and take during those negotiations. Now, well after those negotiations were concluded, one party asks me to make a ruling which impacts the original agreement. Counsel was not present in court when the admissibility of ante-mortem statements was dealt with previously but she was part of the legal defence team that was representing Mr. Fattore at that time. Senior counsel, then also on the team, handled the ante-mortem statement issue.
[5] Due to my overriding concern that any verdict ultimately reached in this case is sustainable I will deal with the application on the merits.
Factual Background
[6] On Thursday, April 16, 2009 Bridget Harrison came home at approximately 9:00 p.m. and found her husband of 40 years, Bill Harrison, dead on the floor of a main floor powder room. She called 911. A transcript of the statements made by Bridget Harrison during the 911 call was admitted on consent as evidence of the truth of the contents of those statements. The recording has been played for the jury. During that 911 call Bridget Harrison said she had last spoken to her husband at 9:00 a.m. that morning.
[7] At that time Bridget and Bill Harrison had legal status under a court order to stand in the place of their son Caleb Harrison in relation to custody and access to their two grandchildren, M.H.1 and M.H.2. Their son and the children’s father, Caleb Harrison, was in jail for a drinking and driving offence. Melissa Merritt had previously been married to Caleb Harrison and she is the mother of the two children in question.
[8] On April 16, 2013, the same day Bill Harrison died, Melissa Merritt abducted the children in contravention of the custody and access order. This is an agreed fact. Melissa Merritt and Christopher Fattore were found many months later living in Nova Scotia with the children. They were located as part of a police investigation. Cst. Michael Young of the Peel Regional Police was in charge of that investigation. In connection with that investigation he conducted a video recorded interview of Bridget Harrison on May 6, 2009. It is the edited version of that interview which is at issue here.
[9] Bill Harrison’s death was not viewed as a homicide by the authorities until after the subsequent deaths of both Bridget and Caleb Harrison. Bridget Harrison was found dead in the same home on April 21, 2010. Caleb Harrison was found dead in the same home on August 23, 2013. Throughout the entire time period a custody and access dispute involving the two children was continuing. After the death of Caleb Harrison all three deaths were investigated as homicides.
[10] More detailed information is required in order to assist in understanding the particular hearsay dangers which arise in relation to the passage of the statement which Christopher Fattore now seeks to have admitted pursuant to the principled exception to the hearsay rule. I will refer only to the degree of detail that is necessary to frame and understand the issue.
[11] Chad Ramm lived in the same townhouse complex as Melissa Merritt and Christopher Fattore at the time of Bill Harrison’s death. Melissa Merritt provided day care for one of his young children. One morning around the time of Bill’s death Mr. Ramm was dropping off his child at Merritt and Fattore’s residence and noticed that the contents of the residence had been packed up over the course of the previous 24 hours. He testified he was told that Merritt and Fattore were leaving and could no longer provide day care. He was upset by this and later mentioned it to Larisa Jeffery, the office manager at the school his older children attended.
[12] Mr. Ramm also happened to work at the same place Bill Harrison did, although they worked different shifts. Mr. Ramm said he was aware of the custody battle between the accused and the Harrison family and thought he should tell Bill Harrison that Merritt and Fattore were moving. Mr. Ramm testified that he saw Bill Harrison at a shift change and told him. Mr. Ramm is unclear as to the exact date and time that occurred. However, he believes that on his next shift at work he learned that Bill Harrison was dead. Mr. Ramm was upset because he thought that what he told Bill may have led to Bill having a heart attack.
[13] The focus then shifts to the school where Ms. Jeffery works. M.H.1 and M.H.2 also attended that school. Ms. Jeffery was well aware of the custody dispute between the accused and the Harrisons. She knew Bridget and Bill Harrison. She testified that the principal of the school, Jane Lek, had prepared a calendar based on the court custody and access order. It indicated on which days the children could be picked up and by whom. This was taped to Ms. Jeffery’s desk. Ms. Jeffery testified that she was under strict orders to release the children only to the party who was entitled to custody or access on any particular day.
[14] Ms. Jeffery was acquainted with all of the parties. She said Bill Harrison usually picked up the children on days when the Harrison’s were entitled to access.
[15] Ms. Jeffery testified that on Thursday, April 16, 2009 Christopher Fattore came to the school at approximately 1:00 p.m. and signed the children out. This was permissible based on the court order and the calendar she had. However, at approximately 3:30 p.m. Bill Harrison arrived at the school looking for the children. She told him Mr. Fattore had signed the children out. Bill Harrison said that he was confused about whose day it was. He then left the school. Ms. Jeffery testified that on Friday, Bridget Harrison came to the school and told her and the principal, Jane Lek, that she had found Bill Harrison dead Thursday evening. The principal told Bridget that the children were not in school. They were all very upset.
[16] Ms. Jeffery said that as Bridget Harrison was leaving she told her to, “look in the window”. She said she was referring to what Mr. Ramm had told her about Ms. Merritt and Mr. Fattore moving. Bridget Harrison nodded that she understood.
[17] Soon thereafter Bridget Harrison went to the police. During her May 6, 2009 video statement to the police she said she went to the Merritt and Fattore residence and found the townhouse vacated.
[18] Ms. Jeffery was cross-examined to suggest that she was mistaken that Bill Harrison came to the school on Thursday. It was suggested to her that it was on Wednesday. Ms. Jeffery firmly maintained that Bill Harrison came to the school on Thursday, the day before Bridget Harrison came to the school to tell Ms. Lek about Bill’s death and to check on the children.
[19] Portions of Ms. Harrison’s original video statement of May 6, 2009 indicate that there was a long standing court order that Melissa Merritt was not to withdraw the children from a school without the express written consent of Caleb Harrison. In her statement as edited Bridget Harrison also said that she had brought the children to school on Thursday. She did not expect to see them again until the following week as it was “Melissa’s weekend”. In other words, Thursday was the changeover day. This is consistent with Ms. Jeffery’s evidence that she allowed Christopher Fattore to sign out the children on Thursday April 16, 2009, the day of Bill Harrison’s death.
The Passage Mr. Fattore Now Wants Admitted
[20] At the end of the statement as edited pursuant to counsel’s earlier agreement and my previous ruling, Cst. Young was asking Bridget Harrison who she spoke to when she went to the school on Friday. Ms. Harrison said she spoke with Jane Lek, the principal. The edited statement then ends.
[21] The passage Mr. Fattore wants included follows immediately from that point. It reads as follows:
BRIDGET: And my husband was well known to them because he was picking Micaela (sic) up and picking the children up and she was really upset, because, I mean, he had just been there on Tuesday.
YOUNG: Right.
BRIDGET: And Wednesday. And, uh-, but then, you know, we said why we were there and she was really taken aback and then she said, but the children aren’t here.
YOUNG: Mm-hmm.
[22] On its face this passage says that the principal was very upset. It is ambiguous as to whether Ms. Lek told Bridget Harrison she was upset because she had just seen Bill Harrison on Tuesday and Wednesday (which would be double hearsay) or whether that was information that originated from Bridget Harrison. If it is the latter, the statement is ambiguous as to how Bridget knew that or why she said that. Both aspects of ambiguity have implications for the admissibility analysis and the identification of hearsay dangers.
[23] As to relevant surrounding circumstances which may be taken into account in assessing threshold reliability under the principled approach to hearsay, I observe that in the edited version of Ms. Harrison’s statement she said that once she took the children to the school on Thursday morning she did not expect to see them again until the following week. She also said she had last spoken to her husband Bill at 9:00 a.m. on Thursday. Consequently, it is difficult to discern the basis upon which she could have been aware that Bill attended the school at about 3:30 p.m. on Thursday as Ms. Jeffery testified.
Analysis
[24] In R. v. Foreman (2002), 62 O.R. (3d) 204, [2002] O.J. No. 4332 (C.A.), at para. 34, Doherty J.A. referred to “the important point that the admissibility of hearsay is tied to the purpose for which the evidence is tendered”. In support he cited R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.), per Iacobucci J. at pp. 516, 519. This is an important step in the analysis because, as the subsequent cases teach us, a court considering admissibility of hearsay under the principled approach must identify the specific hearsay dangers that arise in the particular circumstances of the case and, assuming necessity is established, evaluate whether those case specific hearsay dangers are adequately overcome to establish threshold reliability. Threshold reliability will be established where (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Support for all of the foregoing is found in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 4, 49, 61-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 77-81; and R. v. Bradshaw, 2017 SCC 35, at paras. 26-30.
[25] In this case it appears that the purpose for which the applicant seeks admission of the hearsay is to prove that Bill Harrison was not at the school on Thursday as Ms. Jeffery said he was. Counsel also says the passage assists in proving that Bill was at the school on Tuesday and Wednesday, which does not mean that he was not there on Thursday as well. However, counsel does not deny that one purpose in leading the evidence is to suggest to the jury that Bill was not at the school on Thursday. This is an implied assertion from the fact that the passage in question makes no reference to Bill attending on Thursday in circumstances where that would be expected to be included if Bill had been at the school on Thursday. Implied assertions tendered for the truth of their content must be subjected to a hearsay admissibility analysis: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520.
[26] Due to the position taken by counsel for the applicant the specific hearsay dangers raised by the first purpose I have identified must be assessed. Ms. Myers advised me that she is opposed to my admitting the evidence for the purpose of proving that Bill was at the school on Tuesday and Wednesday while giving a limiting instruction to the jury that it cannot be used as evidence tending to show that Bill was not at the school on Thursday.
[27] I conclude that the evidence in question is inadmissible under the principled approach. I will first address the ambiguity in the statement and its impact on the admissibility analysis.
[28] If the suggestion is that Ms. Lek was the source of the information that Bill was at the school on Tuesday and Wednesday, leading to the implied assertion that he was not there Thursday, I observe that this is double hearsay. That does not, in itself, lead to a finding of inadmissibility as both “levels” of hearsay could pass the principled approach analysis, or the first level might fall within a recognized exception to the hearsay rule.
[29] There is no suggestion that any statement made by the principal to Bridget Harrison on the Friday falls within a traditional exception to the hearsay rule. Only the principled exception based on necessity and threshold reliability is available. Here there is no necessity as I am advised that Ms. Lek is available to give evidence if required. Consequently, there is no need to engage in a threshold reliability analysis. I do observe, however, that I have no evidence that Ms. Lek was at the school or in a position to have personal knowledge of whether Bill was in the school on Thursday. It seems to me that evidence capable of supporting such a conclusion would be essential to establish threshold reliability for the implied assertion suggested. The hearsay dangers related to perception cannot be overcome to the threshold admissibility level.
[30] If the passage is viewed as giving rise to the implied assertion that Bill was not at the school on Thursday on the basis of Bridget Harrison’s knowledge, the analysis is somewhat different. Ms. Harrison is deceased. I am not aware of any other evidence tending to establish that Bill Harrison was not at the school on Thursday. I have heard brief mention made of future evidence to show that he swiped his access card at the YMCA Thursday afternoon but I have not been pointed to evidence that this would be inconsistent with his arrival at the school at dismissal time. Necessity is established.
[31] I turn to threshold reliability. Here the hearsay dangers are in the areas of perception and narration. They relate to the source of any knowledge on the part of Bridget Harrison that would support the implied assertion Bill was not at the school Thursday. We do not know if that was supposition on her part based on the fact that Bill often picked the children up when it was the “Harrison’s days”, or if she had seen or heard something, and if so what that was, that led her to believe that Bill was not at the school on Thursday. As already mentioned, she told the 911 operator that she last spoke to him on Thursday morning at 9:00 a.m. These are circumstances that would undoubtedly be addressed in cross-examination if Bridget Harrison was available.
[32] In my view, these hearsay dangers cannot be overcome, nor can threshold reliability be established, by demonstrating either procedural or substantive reliability.
[33] The applicant did not really address procedural reliability during submissions. I take into account that the statement was video recorded. Consequently, the jury will be able to see the declarant and to assess her demeanour. I do note, however, that the video has been heavily edited, often at the request of the defence. I also take into account that Bridget Harrison appears in the video to be an articulate and intelligent woman who was well aware of the fact that she was speaking to a police officer about an important matter. These and similar circumstances would go some distance in addressing other hearsay dangers, such as veracity. However, these circumstances do not attenuate the specific hearsay dangers that are present in this case, which are related to an inability to cross-examine the declarant about what her basis was for saying what she did in the passage in question. The procedural safeguards that did exist are not an adequate substitute for the inability to test the evidence by cross-examination: Bradshaw, at para. 28.
[34] In terms of substantive reliability, I find that a consideration of all of the circumstances leads to the conclusion that the passage is not inherently trustworthy in terms of its implied assertion that Bill Harrison was not at the school on Thursday. The surrounding circumstances tend to show that Bridget Harrison had no perceptual basis for first-hand knowledge about that fact. Nor does it seem that there is any basis for her learning that by having spoken with Bill. The most likely situation, leaving aside any statements Ms. Lek may have made to her, is simply that she made a deduction from her knowledge of which days were “Harrison days” pursuant to the custody and access order, together with supposition based on what usually occurred. In these circumstances the hearsay dangers associated with the implied assertion remain strong. I cannot say that cross-examination would add little in terms of the jury being able to evaluate whether and to what extent to rely on the implied assertion: Khelawon, at para. 49; Bradshaw, at para. 31.
[35] This is not a borderline situation where it would be appropriate to relax the normal rules of evidence to admit defence evidence.
[36] This presumptively inadmissible hearsay remains inadmissible.
F. Dawson J.
Released: October 17, 2017
CITATION: R. v. Merritt, 2017 ONSC 6203
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 2017-10-17
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 16: Application to Admit Additional Ante-Mortem Statements
F. Dawson J.
Released: October 17, 2017