COURT FILE NO.: CR-17-79
DATE: 2018-03-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Andrew McLean and Brian Adsett, for the Applicant, Her Majesty the Queen
Applicant
- and -
Odain Gardner and Erick Reid
Jaime L. Stephenson, for the Respondent, Odain Gardner
Respondents
HEARD: March 5, 2018
REASONS FOR JUDGMENT ON PRE-TRIAL MOTION REGARDING ADMISSIBILITY OF HEARSAY EVIDENCE
Justice Skarica
OVERVIEW
[1] On February 18, 2016, the victim, Neil Harris (Harris), was shot inside his Hamilton barbershop at 4.20 p.m.
[2] It is alleged that the accused Odain Gardner (Gardner) shot Harris at short range as Harris was running from the barbershop. Harris died from this shooting attack. The other accused, Erick Reid, accompanied Gardner into the barbershop at the time of the shooting.
[3] During the 2016 murder investigation, Harris’ wife indicated to the police that in the spring or summer of 2013 (approximately 3 years before Harris’ murder) her husband told her that Gardner robbed him at Harris’ barbershop at a different Hamilton location.
[4] No complaints were ever made to the police about the 2013 robbery. A possible explanation for the absence of complaint could be due to the fact that Harris was also known to sell small amounts of marijuana from his barbershop.
ISSUES
[5] The major issues to be resolved by this pre-trial motion are as follows:
Is the 2013 hearsay evidence both necessary and reliable evidence to be introduced at the trial of the 2016 murder?
Does the 2013 hearsay evidence qualify as prior discreditable conduct whose probative value exceeds its prejudicial effect?
FACTS
[6] The Crown called Harris’ wife, Tanya Harris (Tanya), to give viva voce evidence at this pretrial motion.
[7] Tanya testified that Harris originally worked out of a barbershop in downtown Hamilton in the area of King and Hess Streets. Harris operated his barbershop at that location from 2010-2015. From 2015-2016, Harris worked out of his new barbershop location at Upper Wellington Street in the City of Hamilton.
[8] On February 18, 2016, Harris was shot and killed at his barbershop at the Upper Wellington location.
[9] On July 16, 2016, the police provided Tanya with the names of 3 people that the police had arrested pursuant to their murder investigation. Odain Gardner and Erick Reid were charged with murder and another individual was charged with accessory after the fact to murder.
[10] Tanya recognized Gardner’s name. Tanya told the police that her husband told her that Gardner had robbed him in 2013. She was told about the robbery by Harris right after the robbery occurred and for a few days after.
[11] Harris told Tanya that he was at the barbershop at the downtown location. Two individuals walked in. Harris knew one of the individuals – his name was Tony or Antonio. Harris did not know the other individual. These two individuals demanded money from Harris and another attendee at the shop. The unknown man showed that he had a gun at his waist and when Harris asked why they were doing this, the unknown man told Harris to “shut the fuck up.” Money and a jewellery chain were taken from Harris. Both of the robbers were unmasked and their faces could be clearly seen.
[12] In the shop at the time of the robbery was another barber, Greg Richards (Richards), and a customer, Rickey Dunkley (Dunkley), and two other customers whose names were unknown to Tanya.
[13] Richards and Dunkley told Harris that the unknown robber was Odain Gardner. Harris did not know Gardner but knew of him.
[14] The robbery was never reported to the police as Harris was scared of the repercussions of doing so.
[15] After the robbery, Harris showed Tanya an article that appeared in the paper regarding Odain Gardner. The article contains a picture of Odain Gardner and is entitled, “Hamilton police hunt for ‘dangerous’ suspect in shooting.” The article indicates that Gardner is wanted for a shooting of a 32 year old man in Hamilton. The article is dated May 24, 2014. This article and the picture of Gardner were saved on Harris’ phone. They were entered as Exhibit 1 on the motion.
[16] Harris told Tanya that the other 2013 robbery suspect, Tony, subsequently apologized to Harris. This was done a while after the 2013 robbery.
[17] No other evidence was called by the Crown on this pretrial motion.
ISSUE #1 – IS THE HEARSAY EVIDENCE REGARDING THE 2013 ROBBERY BOTH NECESSARY AND RELIABLE?
LAW
[18] It is trite law now that hearsay evidence is admissible on a principled basis as an exception to the exclusionary rule where its admission can be justified on the twin criteria of necessity and reliability. See R. v. Khelawon, [2006] 2 S.C.R. at paras. 34, 42 and R. v. Blackman 2006 CanLII 42356 (ON CA), [2006] O.J. No. 5041 (C.A.) at para. 43.
[19] “Necessity” is not an issue in this case because the declarant, Harris, is dead. Accordingly, the issue here is whether the criterion of “reliability” is satisfied.
[20] Regarding admissibility, the judicial inquiry is concerned with “threshold reliability” and not “ultimate reliability.” See Blackman at para. 44.
[21] In Blackman, the Court of Appeal outlined the functional approach to be considered regarding threshold reliability at paras. 44-49:
44 As the Supreme Court of Canada has emphasized repeatedly, there is an important distinction between threshold and ultimate reliability. Only the former is relevant to admissibility.
45 Historically, the Supreme Court also stressed the distinction between factors relevant to threshold reliability and those that concern ultimate reliability alone. Thus, in Starr at paras. 215-17, the Supreme Court indicated that, at the threshold reliability stage, the judicial inquiry is concerned only with the circumstances surrounding the making of the statement at issue and whether these afford "sufficient elements of reliability" that the statement should be considered by the trier of fact. See also R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 232; R. v. Hawkins (1996), 1996 CanLII 154 (SCC), 111 C.C.C. (3d) 129 (S.C.C.).
46 In Khelawon, however, this principle was abrogated. At para. 93, Charron J. held that the factors to be considered on the admissibility inquiry "should not be categorized in terms of threshold and ultimate reliability". Instead, "the court should adopt a more functional approach ... and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers". Under this approach, the trial judge plays a limited, albeit critical, role in determining admissibility. Justice Charron cautioned at para. 93, "[I]t is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire."
47 Thus, Khelawon confirms that while the factors relevant to the admissibility of a hearsay statement should not be characterized according to the divide between ultimate and threshold reliability, the distinction between these measures of reliability remains of vital importance on the admissibility inquiry. Only threshold reliability is to be inquired into on the admissibility voir dire. In addition, the relevance of any particular factor to the admissibility inquiry depends on the particular dangers "arising from the hearsay nature of the statement and the available means, if any, of overcoming them": see Khelawon, at paras. 50 and 55.
48 The legal test for the assessment of threshold reliability mandated by Starr and related cases places an onus on the party seeking the admission of a hearsay statement to show that the circumstances surrounding the making of the statement are sufficiently supportive of its reliability to permit its admission, despite the absence of an opportunity to cross-examine the declarant: see Smith, supra, at p. 270; Humaid at para. 50; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.) at para. 64. Under this test, there is no evidential onus on the party resisting the admission of a hearsay statement to establish that the statement was made in unreliable circumstances.
49 I do not read the Supreme Court's decision in Khelawon as displacing these principles. Khelawon affirms that there are two principal ways of satisfying the reliability requirement, neither of which excludes consideration of the other. One is to show that the traditional dangers associated with hearsay are either not present or are overcome because the truth and accuracy of the hearsay statement in issue can be sufficiently tested by means other than contemporaneous cross-examination: see for example, R. v. B.(K.G.) (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.); Hawkins, supra. Another is to show that the circumstances in which the statement was made provide sufficient comfort in its truth and accuracy: see the Khan, Smith, Starr and Humaid line of cases. In either situation, the proponent of the hearsay evidence bears the onus of satisfying the reliability requirement.
[22] Even where the hearsay evidence satisfies the requirements of a common law exception to the hearsay rule or qualifies for reception as necessary and reliable, a trial judge retains a discretion to exclude it where its prejudicial effect exceeds its probative value. See R. v. Skeete, 2017 ONCA 926 at para. 93
APPLICATION OF FACTS TO LAW
[23] Necessity is established by the death of Neil Harris. Accordingly, the focus of this inquiry shifts to reliability. See Skeete at para. 73.
[24] Harris did not know Gardner and did not know who he was on the day of the 2013 robbery. The robbery was never reported to the police. Accordingly, no photo line-up was ever done. No description of Gardner was provided by Tanya in the evidence she gave at this hearing. I have reviewed her July 27, 2016 police statement and do not see any descriptions provided by Harris to her regarding Gardner other than a reference to his race at page 10. Harris’ identification, if Harris was still alive, would be based on (1) information obtained from others regarding the identity of Gardner; (2) a photo based on a newspaper report over a year after the robbery and (3) possibly, in dock identification but possibly not. If Harris were alive and available to testify regarding the 2013 robbery, his identification evidence in these circumstances would be of virtually no probative value. See, for example, R. v. Hibbert 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 47-53 and R. v. Singh, 2014 ONSC 897 (Ont. S.C.J.) at para. 73. Accordingly, Tanya’s evidence based on this weak foundation would have even less probative value.
[25] Tanya testified that Harris learned of Gardner’s name from Rickey Dunkley (Dunkley) and the other barber, Greg Richards (Richards), who were present at the 2013 robbery. The Crown attempted to call Greg Richards at this hearing but Richards did not appear. Richards’ police statement, dated May 24, 2016, reveals that Richards in fact indicated that he was not in the barbershop at the time of the 2013 robbery.
[26] Further, the other witness who provided Gardner’s name - Rickey Dunkley – is deceased and the materials before me contain no statement from him. There were two other witnesses in the shop according to Tanya’s evidence, but she does not know who they are.
[27] The only other identification evidence comes from the newspaper article which was published over a year after the robbery and provides Gardner’s name and picture. At the time Harris saw the article, he appears not to have provided any identification details of the robbery assailants to anyone and was relying on names provided to him by (1) Dunkley, who is dead and (2) Richards, who contradicts Harris’ statement that Richards was present during the robbery. Further, Richards did not appear at this motion which calls into question whether he will be available at the trial.
[28] Putting it all together, are the circumstances such that the statement made by Harris was provided in circumstances to provide sufficient comfort in its truth and accuracy? See Blackman at para. 49 and Khelawon at para. 49. I agree that Tanya has no motive to lie and that Harris had no motive to lie about the fact he was robbed. See Blackman at para. 53. Accordingly, Tanya’s evidence might meet the threshold test regarding the fact of a robbery. However, pursuant to the analysis of the identification evidence as outlined above, I cannot take comfort in the accuracy of the identification of Gardner as being one of the participants in that 2013 robbery.
[29] Further, given the frailties of the identification evidence relating to the 2013 robbery, I am not satisfied that the traditional dangers associated with hearsay are not present or can be overcome by means other than cross-examination. See Blackman at para. 49 and Khelawon at para. 49.
[30] Accordingly, the Crown has failed to meet the onus that is on it to show that Tanya’s hearsay evidence regarding the 2013 robbery meets the requirements of “threshold reliability.” See Blackman at para. 48.
[31] Further, regarding my discretion to exclude otherwise admissible evidence, I agree with the Crown that the hearsay evidence regarding the 2013 robbery would have probative value as animus and motive if there had been satisfactory evidence of identification of Gardner in the 2013 robbery. See Skeete at paras. 68-93. However, given the frailties of the identification evidence, the moral prejudice created by the reference to the accused’s involvement in a 2013 robbery and a 2014 shooting in a newspaper article, it is my opinion that the prejudicial effect of Tanya’s evidence outweighs the probative value of her evidence. See Skeete at para. 93.
ISSUE #1 – CONCLUSION
[32] Accordingly, the hearsay evidence of Tanya Harris is to be excluded as it does not satisfy the threshold criteria required by the cases on the issue of reliability. Further, the prejudicial effect of this evidence outweighs its probative value.
ISSUE #2 – PRIOR DISCREDITABLE CONDUCT
LAW
[33] Gardner is charged with the murder of Harris in 2016. The Crown wishes to introduce evidence of Gardner robbing Harris in 2013.
[34] Evidence of prior discreditable conduct is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that, in the context of a particular case, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. See R. v. Handy, 2002 SCC 56 at para. 55.
[35] The issues that the Crown wishes to tender regarding the 2013 robbery involve the issues of animus, motive, state of mind and identity.
[36] Handy outlines at para. 82 some of the relevant factors to be taken into account. The events under scrutiny are approximately three years apart; both involve a gun but as the Crown itself indicates, the murder event appears not to be a robbery at all but a planned and deliberate shooting of Harris; and there is one occurrence of prior discreditable conduct. Most importantly, for the reasons outlined under the hearsay discussion, the evidence relating to the identity of Gardner in the 2013 robbery is extremely frail. The strength of the evidence relating to the discreditable conduct is a factor that the judge, in his gatekeeper function, can take into account. See Handy at paras. 133-136.
[37] Regarding prejudice, there exists in these circumstances both reasoning prejudice (confusion and distraction from the actual charge) and moral prejudice (the accused is a bad person). See Handy at para. 100.
[38] Regarding reasoning prejudice, one of the factors to be taken into account is the ability of the accused to respond and defend himself against the 2013 robbery. See Handy at para. 146. Two of the eyewitnesses are unknown. Harris, the victim, never reported the robbery to the police and is now dead. One of the two identified main eyewitnesses, Rickey Dunkley, is also dead. The other alleged eyewitness, Greg Richards, denies being there but was not available to testify at this motion. Further, the 2013 robbery allegation is unproven and will require a trial within the murder trial to prove the probity of the 2013 allegation, which as I have indicated relies on very frail identification evidence. See R. v. Hall, 2018 ONCA 185 at paras. 61-63.
[39] Regarding moral prejudice, the Crown’s evidence relates to a 2013 robbery with a gun and a 2014 newspaper article replete with references to Gardner shooting another man. This is highly prejudicial evidence which could lead the jury to reasonably conclude that the accused is a bad man.
[40] Accordingly, it is my opinion that the probative value of the 2013 robbery, given the defects in the identification evidence, is not very strong. However the prejudicial effect both on a reasoning prejudice basis and a moral prejudice basis is very powerful.
[41] I conclude that the prejudicial effect of the evidence of the 2013 robbery outweighs the probative value of that evidence. Accordingly, on the basis of the applicable principles involving discreditable conduct, the Crown has not met its onus and, in the result, the evidence of the 2013 robbery is not admissible at this trial.
CONCLUSION
[42] The Crown’s motion to introduce into evidence at this trial the circumstances of the 2013 robbery of Neil Harris is denied. This evidence cannot be introduced at this trial.
Justice Antonio Skarica
Released: March 7, 2018
COURT FILE NO.: CR-17-79
DATE: 2018-03-07
Her Majesty the Queen
Applicant
- and -
Odain Gardner and Erick Reid
Respondents
REASONS FOR JUDGMENT ON PRE-TRIAL MOTION REGARDING ADMISSIBILITY OF HEARSAY EVIDENCE
Justice Antonio Skarica
Released: March 7, 2018