Court File No. 12-2163
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
RUI BRANCO
REASONS FOR DECISION
ON HEARSAY APPLICATION
BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS
on December 7, 2018, at BRAMPTON, Ontario.
APPEARANCES:
M. Thomaidis Counsel for the Crown
E. Brown Counsel for Rui Branco
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR DECISION 1
Transcript Ordered: January 22, 2019
Transcript Completed: March 5, 2019
Ordering Party Notified: March 5, 2019
FRIDAY, DECEMBER 7, 2018
REASONS FOR DECISION
STRIBOPOULOS, J. (Orally):
Introduction
These are my reasons on the Crown’s application to have evidence admitted under the principled exception to the hearsay rule.
The Crown seeks the admission into evidence of the notes, diagrams and Exhibit List prepared by Constable Jon Sutman, who is now deceased.
The Evidence in Context
On October 26, 2010, members of the Internet Child Exploitation (ICE) Unit of the Peel Regional Police executed a search warrant at 4 Sharon Court in the City of Brampton.
There were a number of police officers involved in executing the search warrant. Constable Jon Sutman, a police officer with over 35 years of experience, was one of these officers. On that day, Constable Sutman served as the "Exhibit Officer" for the search.
As the Exhibit Officer, Constable Sutman had many responsibilities, both at the scene of the search warrant's execution, and then later at the ICE unit's offices.
At the location of the search, he was required to keep detailed notes regarding the circumstances surrounding the execution of the warrant. He prepared a diagram of the premises searched and assigned a letter to any room where seizures of property took place.
Any police officer who seized an item was required to bring it to Constable Sutman. At which point, he was responsible for securing the article either in a sealed and numbered evidence bag or under a numbered evidence seal.
Further, he recorded all pertinent details regarding the items seized on a document entitled "Property Seized / Exhibit List." (For ease of reference, I will refer to this document as the "Exhibit List.") That document included an exhibit number coded to the location where it was found, a detailed description of each item, the location where it was found, the badge number of the officer who seized it, the time it was found, and the time when Constable Sutman received it from that officer. If Constable Sutman did not retain an item, he recorded the details of the officer who kept it.
At the completion of the search warrant's execution, as the Exhibit Officer, Constable Sutman was responsible for taking all the seized items back to the ICE Unit, located at 180 Derry Road East. At which point, he would contact the Property Bureau by telephone and go through each item with them, logging it into the Peel Regional Police force's property tracking system. Through that system, each seized item receives a distinct number for tracking purposes. That number is also recorded on the Exhibit List.
This work was then reviewed and checked by the Officer in Charge, in this case, Detective Ullock.
The Exhibit Officer is then responsible for transferring the seized evidence to the secure property room in the basement of 180 Derry Road East.
Constable Sutman was routinely tasked as the Exhibit Officer when the ICE unit executed a search warrant. Two of his colleagues at the time explained that this was because he was considered to be a diligent and conscientious officer who was extremely detail oriented. In short, he was thought to be a good choice for the role of Exhibit Officer because he was well suited for it.
Accuracy in the Exhibit Officer's work is essential. For example, the Officer in Charge of the case will use the Exhibit List to prepare the Return to a Justice on the search warrant. Also, the various police officers involved in executing a search warrant will make minimal notes regarding their role in the search. Instead, they will rely on the Exhibit List to refresh their memories when it comes time to testify.
The Positions of the Parties
Given Constable Sutman's death, there is understandably no issue between the parties that necessity is made out.
The only issue on this application is whether or not the Crown has established threshold reliability on a balance of probabilities.
For the Crown, Mr. Thomaidis submits that, in all the circumstances, substantive reliability is made out. In that regard, he points to various aspects of the evidence that support such a finding.
First, Mr. Thomaidis emphasizes the nature of Constable Sutman's limited role. Second, the objective information recorded, in the sense that it was not open to interpretation or the usual testimonial frailties. Third, the importance of accuracy in that work. And, finally, Constable Sutman's recognized proclivity for diligence and precision in his work habits.
On behalf of Mr. Branco, Mr. Brown acknowledges that, in all the circumstances, he is hard-pressed to oppose the admission of Constable Sutman's notes, diagrams and the Exhibit List. Nevertheless, he does not concede admissibility. Instead, he takes no position on the application.
Law and Analysis
The Supreme Court of Canada's jurisprudence provides detailed guidance on assessing the admissibility of hearsay evidence under the principled exception, including the considerations that govern when it comes to evaluating the reliability requirement. See R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
“Hearsay” is an out of court statement tendered for the truth of its contents. In this case, Constable Sutman's notes, diagrams and the Exhibits List are all hearsay given that the Crown wishes to rely on the truth of what they assert. As such, this evidence is presumptively inadmissible.
Hearsay evidence is admissible where the proffering party, in this case, the Crown, establishes, on a balance of probabilities, that it meets the criterion for admission under the principled exception, namely necessity and threshold reliability.
Again, given Constable Sutman's death, necessity is established. The only issue here is threshold reliability.
Threshold reliability is made out where the hearsay is "sufficiently reliable to overcome the dangers arising from the difficulty of testing it." Khelawon, at para. 49.
In this case, the Crown asserts that there are adequate circumstantial guarantees that the statement is inherently trustworthy. In other words, that the evidence is substantively reliable. Bradshaw, at paras. 26-30.
In Bradshaw, Justice Karakatsanis collected the relevant excerpts from the Supreme Court's jurisprudence explaining this requirement. She writes, at para. 31:
While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40)." From Bradshaw.
When assessing threshold reliability, I am required to consider the circumstances in which the statement was made and evidence (if any) that corroborates or contradicts the statement. Bradshaw, at paras. 26-30; Khelawaon, at paras. 4, 62, 94-100. In Bradshaw, Justice Karakatsanis summed up the potential role of corroborative evidence this way, at para. 57:
In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
With these principles firmly in mind, I turn to the evidence that is the subject matter of this application, Constable Sutman's notes, diagrams and the Exhibit List that he prepared.
I begin by identifying the potential hearsay dangers concerning this evidence. See Bradshaw, at para. 26. First, there is the danger that Constable Sutman was less than forthright in the information he included in his notes, the diagrams or in the Exhibit List. Second, there is also the danger that Constable Sutman made a mistake in the information he recorded in these various documents.
I turn to the first potential danger; the risk that Constable Sutman was less than honest in preparing his notes, diagrams or completing the Exhibit List.
In the circumstances, there was no apparent motive on the part of Constable Sutman to be less than forthright in the information he recorded. It would appear that this was a routine child pornography investigation, the very sort carried out by the ICE unit on a regular basis. There is no hint that Constable Sutman had any prior dealings with Mr. Branco or any reason not to record the relevant information truthfully. Mr. Thomaidis bluntly but accurately described the officer's role in his submissions; he was little more than a "scribe." It is hard to imagine why a police officer, discharging such a function, which depends on accuracy, would deliberately mis-record information.
The real danger, in this case, is that Constable Sutman may have made an inadvertent error in his notes, the diagrams or the Exhibit List. Without the benefit of cross-examination, there is the risk that such an innocent mistake could go undetected. In my view, in all of the circumstances, this danger is more speculative than real in this case. I say this for a number of reasons.
First, the very nature of the task that Constable Sutman was involved in as the Exhibit Officer was relatively straightforward and administrative. He recorded who was present for the search, the time of entry, prepared a diagram of the residence, and then entered information onto the Exhibit List, as items seized during the search were brought to him by other officers. There was no room for interpretation or perceptual frailties.
Second, errors by an Exhibit Officer could have a cascading effect. They could lead to errors in the completion of the Return to the Justice, and problems down the road if the case ultimately went to trial. Police officers involved in the search depend on the accuracy of the Exhibit List to refresh their memories when testifying about the search and the items seized. As a result, the potential consequences of an error create an incentive to approach the task carefully and as accurately as possible.
Third, it was the need for care and accuracy that caused Detective Ullock to select Constable Sutman for this somewhat thankless task. Concerning his work habits, the evidence established that Constable Sutman was a conscientious and detail-oriented police officer. He took his responsibilities seriously and was not someone who was prone to error.
Fourth, after performing his various functions as Exhibit Officer, including filling out much of the Exhibit List form, Constable Sutman contacted the Property Bureau and logged each of the items of evidence seized with them. This logging of the items seized with the Property Bureau took place on the day of the search warrant's execution, at a time when the relevant events would still have been fresh in Constable Sutman’s memory. This review would have afforded Constable Sutman an opportunity to detect and correct any potential errors.
Fifth, Detective Ullock, the Officer in Charge, checked Constable Sutman's work product the very same day. Detective Ullock testified that he did not detect any errors and was satisfied with the work performed by Constable Sutman.
And, finally, there are no apparent errors in the notes, diagrams or Exhibit List. In fact, a number of the material details correspond both with the testimony and the notes of Detective Ullock and Constable Kinna. Although, given the role of the Exhibit Officer as the primary note keeper during the search, the Exhibit List appears to be the most comprehensive source of information regarding who found what and where during the search.
Given all of this, I am ultimately satisfied that Constable Sutman's notes, diagrams and the Exhibit List are sufficiently reliable that contemporaneous cross-examination would add little if anything to the process. In the circumstances, if Constable Sutman were alive, it is likely that his evidence would essentially mirror what is in these documents. In all of the circumstances, it is improbable that this evidence would change under cross-examination.
Conclusion
Therefore, necessity and threshold reliability are established. In the result, Constable Sutman's notes, diagrams and the Exhibit List are all ruled admissible.
... WHEREUPON THESE REASONS CONCLUDED
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Margaret Graham, certify that this document is a true and accurate transcription of the recording of R. v. Branco in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3199_402_20181207_081002__30_STRIBOJ.dcr which has been certified in Form 1.
March 5, 2019 ________________________________
(Date) (Signature of authorized person)
*This certification does not apply to the Reasons for Decision which was judicially edited.