Court File and Parties

COURT FILE NO.: 17-R1877 DATE: 2019/05/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Justin Russell-Connolly, Marcus Innocencio Gil, Brightner Brad Casseus

BEFORE: Justice R. Laliberté

COUNSEL: Robert Thompson, Counsel for the Crown Rebecca Rosenstock, Counsel for Accused Russell-Connolly Natasha Calvinho, Counsel for Accused Gil Michael Smith, Counsel for Accused Casseus

RULING AS TO THE ADMISSIBILITY OF JILL GIL’S BAIL HEARING TESTIMONY OF APRIL 12, 2017 ON THE PRINCIPLED APPROACH TO HEARSAY EXCEPTION

LALIBERTE, J.

[1] The Crown is seeking to adduce portions of Jill Gil’s Bail Hearing testimony of April 12th, 2017. Ms. Gil is the accused Marcus Gil’s grand-mother and was called by defence as a proposed surety for him.

[2] The Court was advised early on in the trial that a subpoena had been obtained for Jill Gil but that she could not be located and, by all account, was likely evading service. Based on the evidence heard on this issue, the Court found that she was likely to give material evidence and was evading service. Therefore, a s. 698(2) Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) warrant was issued for her arrest. However, as there were no reasonable grounds to believe that she was inside her known residence located at 270 Somerset Street West, apartment 203 in Ottawa, entry was not allowed by the Court.

[3] More recent evidence reveals that further attempts to find Ms. Gil have remained fruitless to this date. The reasonable inference is that she is deliberately avoiding having to testify at the Crown’s behest and will not be found in the next foreseeable future.

[4] Based on a principled approach to hearsay, the Crown is asking the Court to admit Jill Gil’s Bail Hearing testimony. Counsel argues that it is reasonably necessary to do so and that the said testimony is reliable. Crown has filed a Memorandum of Law and Casebook.

[5] Defence Counsel Ms. Calvinho opposes the admission of such evidence and has also provided a Factum and Book of Authorities in support of her position.

Facts

[6] The accused Marcus Gil is charged jointly and separately under a 15-count indictment. All the charges stem from the events of January 10th, 2017 and revolve around the entry while armed with guns in the residence of Alfred Foerester. It is alleged that violence and threats were directed at Alfred Foerester, Danielle Soulière and Carole Bondeau. Foerester would have been forced to attend the bank and give money to the accused and co-accuseds.

[7] It should be clearly understood that nothing said in this ruling should be seen or construed as an indication that the Court has made any findings on the issues in this trial.

[8] It is noted that we are nearing the end of the prosecution’s case and have heard from most of the witnesses to be called by the Crown. It is apparent from the evidence and the cross-examination that the identity of the three (3) individuals alleged to have entered the residence of Alfred Foerester as noted above remains one of the live issues to be decided by the Court in this trial.

[9] On April 12th, 2017, the accused Marcus Gil proceeded with his Bail Hearing before Justice of the Peace St. Jean. His grand-mother was proposed as a surety for him. The Court was provided with a transcript of her testimony at the said Bail Hearing. The following are the excerpts that the Crown is seeking to admit as part of the evidence:

• “People have a tendency to keep saying to me it’s a very serious crime, where we are very aware of how serious the crime is, and we are – more than that, Marcus is very aware, and even he himself, knows that things got out of hand, went too far”.
  • Transcript p. 12, lines 22 – 25, examination in-chief
• Mr. Casseus has attended at Ms. Gil’s residence, and that Mr. Gil and Mr. Casseus have a previous relationship that dates back to when they were kids.
  • Transcript p. 15, lines 27 – 31, examination in-chief
• In response to Crown’s suggestion that “Marcus has told you about these events”, Ms. Gil stated: “Yes, he’s told me about them, and he regrets every second of it. He has repeatedly told me he wishes he could turn back the clock, and that he could rethink it. He said that: I don’t know what I was thinking. I don’t know how it got that out of control”.
  • Transcript p. 32, lines 9 – 15, cross-examination
• “Marcus – Marcus is one hundred percent – how do you say that – willing to take the responsibility his part in it… We’ve discussed it many times, by the way. You were asking how many times we discussed it. Well, we discussed it many times”.
  • Transcript p. 33, lines 17 – 22, cross-examination.

[10] The lead investigating officer, Sergeant Sean Lowell, provided the Court with the following evidence in regards to the efforts made to locate and serve Jill Gil with a subpoena:

• he knew she resided at 270 Somerset Street West, unit 203 in Ottawa as he attended there on January 12th, 2017 to arrest the accused but he wasn’t present; he spoke to his grand-parents, Jill and Albert Gil who he understood were the superintendents of the building;
• he was present in the Courtroom when Jill Gil testified at the Bail Hearing on April 12th, 2017; the accused was released and was to reside with his grand-parents;
• in February 2019, he was contacted by the Crown and advised that Jill Gill couldn’t be found for service of a subpoena;
• Exhibit “B” is a report prepared by the Sheriff setting out the efforts to serve Jill Gil;
• he then became involved in trying to locate her:
  • he called her residence and left a message on February 26th, 2019;
  • on March 5th, 2019, he attended her home and spoke to her husband who reported that he hadn’t seen or heard from his wife for the last three weeks; the officer told him they were looking for his wife to serve a subpoena; Albert told the officer he had no idea where she was;
• the officer testified having again called her residence and had called local hospitals.

[11] The Court also heard evidence from Constable Michael Cudresov who was tasked with trying to locate Jill Gil. He stated the following:

• he attended 270 Somerset West on March 13th, 2019 and spoke with Albert Gil who was outside shoveling snow; he told Albert that his wife was needed for Court and police were looking for her; Albert was agitated and asked if he had a warrant; he told the officer that he didn’t know where his wife was and didn’t appear concerned with her whereabouts; the officer left;
• he returned the following day on March 14th and knocked at unit 204 which faced unit 203; a male occupant told him he had not seen Jill Gil for the last couple of weeks; he was about to knock on another unit when Victoria Gil, the daughter of Jill Gil, came out of unit 203; she was irritated but invited him inside unit 203 to prove Jill wasn’t there; he didn’t see Jill inside; it was 10:30 p.m.

Position of the Parties

Crown

[12] The Crown submits that Jill Gil has material and relevant evidence to provide in this matter, namely that accused Marcus Gil admitted to her that he was present and that things got out of hand. She can also attest to his previous friendship with co-accused Brad Casseus.

[13] The principled approach to hearsay allows for the admission of this evidence. It is reasonably necessary to do so because Jill Gil cannot be located and as such is unavailable as a witness.

[14] The second criteria of reliability is also met on a balance of probabilities. Counsel notes the following:

• substantive reliability:
  • there is no real possibility that Jill Gil was untruthful or mistaken about the accused’s confession to her;
  • she has no motive to lie;
  • she can’t be wrong about the nature of the conversation because she spoke to him about this many times;
  • she has an interest in preserving her grandson’s penal interests.
• procedural reliability:
  • she testified under oath, in a courtroom, before a judicial officer;
  • she was cross-examined by Crown counsel.
• corroboration:
  • the admission made to her is corroborated by the evidence heard in the trial, including the fact that he was identified from photo line-ups by three (3) witnesses.

[15] Counsel argues that Justice Harris’ recent Addendum to Bail Review Endorsement in R. v. K.K., [2019] O.J. No. 1231 should have no bearing in the Court’s analysis. The following points are raised:

• the reasoning in R. v. K.K. does not make Jill Gil’s evidence inadmissible; she could have been called as a witness;
• this case stands for the proposition that a judicial officer in a Bail Hearing has the authority to control the process and questions;
• if the case stands for the proposition that the Crown can never question a proposed surety about what the accused said, then it is wrong in law:
  • it is not binding and has no precedent;
  • it is Parliament who writes the law and has set out the rules in s. 518 of the Criminal Code;
  • it is proper for the Crown to question a proposed surety on direct knowledge of the case; the door was opened by Jill Gil in chief.

Defence Counsel: Ms. Calvinho

[16] Defence counsel, Ms. Calvinho’s analytical framework in response to the Crown’s argument can be summarized as follows:

• the testimony of Jill Gil is not material
  • it amounts to secondary information of vague and cryptic hearsay;
  • the quality is such that it is not material as it cannot assist the Court on the issues raised by the Crown;
• the hearsay evidence of Jill Gil is not relevant to any issues to be decided by the Court
  • her testimony at the Bail Hearing is equivocal, speculative, illusive and opened to interpretation; as such, it cannot be seen as relevant;
  • it does not make any proposition in this trial more likely
• since the proposed hearsay evidence is not material nor relevant, the Court should use its residual discretion to rule that it is not admissible;
• if the Court finds that it is material and relevant, the circumstances are such that it is not admissible under the principled approach to hearsay exception:
  • it is not reasonable necessary; counsel questions the Crown’s reasonable efforts to preserve and secure this evidence;
  • it is not reliable because of the vague nature of the communication and the fact that the recipient is the accused’s grandmother;
  • the Court should be concerned with the fact that this evidence cannot be tested through cross-examination;
• given the concerns with necessity and reliability, the Court should use its residual discretion to exclude the evidence;
• the Court should be guided by the pronouncements of Justice Harris in R. v. K.K., op. cit.; public policy and prejudice concerns raised by the cross-examination of a proposed surety in a Bail Hearing are such that it should not be admissible as hearsay or viva voce;
• if the Court rules that the evidence is admissible, the intent is to bring a Charter Application, based on s. 7, 11(c), 11(d), 11(e), 15 and 24(2) in response.

The Law

[17] In deciding this issue, the Court is guide by the following principles:

1. Relevance and materiality

   • relevance and materiality is a basic threshold that all evidence must meet before it will be admitted to trial;
   • evidence is relevant where it has some tendency as a matter of logic and human experience to make that proposition for which it is advanced more likely than that proposition would appear to be in the absence of the evidence; relevancy can be tested by asking what inference is sought to be made from the proposed evidence;
   • evidence is material if it is directed at a matter in issue in the case; materiality can be tested by asking whether the evidence has some tendency to advance the inquiry before the Court;
   • R. v. Handy, [2000] O.J. no 1373
   • R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433
   • R. v. Candir, 2009 ONCA 915, [2009] O.J. no 5485

2. Probative value/prejudicial effort

   • The Court can exclude evidence where the prejudicial effect of the evidence outweighs its probative value;
   • R. v. Mohan, [1994] 2 S.C.R. 9
   • R. v. Corbett, [1998] 1 S.C.R. 670
   • In assessing the probative value of evidence, the question is not whether the prosecution needs the evidence but the degree to which the evidence would prove the fact in issue for which it is tendered;
   • R. v. Pascoe, [1997] O.J. no 88
   • Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial; it may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process;
   • R. v. Frimpong, [2013] O.J. No. 1765

3. Principled approach to hearsay

   • the general rule is that all hearsay evidence is presumptively inadmissible; the party seeking to tender hearsay evidence bears the onus to establish its admissibility on a balance of probabilities, namely that it is necessary and reliable;

   • R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787

   • the concerns with hearsay evidence are reliability, being able to text reliability, the absence of contemporaneous cross-examination, the absence of solemn oath or affirmation and the fact that the trier of fact is unable to observe the declarant and consider his or her demeanour in making the statement;

   • R. v. F.C., [2015] O.J. No. 5373

   • the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations; what these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available;

   • R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915

   • in R. v. F.C., [2015] O.J. No. 5383, Justice Campbell provided a comprehensive and useful summary of the law on the issue of reliability: “14. On the issue of reliability, the relevant question is not whether the tendered hearsay evidence is actually true, or even probably true, but whether the evidence is sufficiently reliable to justify its admission for consideration by the trier of fact. In R. v. Khelawon, the Supreme Court of Canada confirmed the importance of the distinction between threshold and ultimate reliability, and clarified how the threshold requirement of reliability should be analytically viewed and practically applied. Delivering the unanimous judgment of the court, Charron J. held, at paras. 1-4, 49-55, 61-66, that this reliability requirement will generally be met in two situations: (1) where the circumstances in which the hearsay statement came about are such that there is no real concern about the reliability of the statement, and contemporaneous cross-examination of the declarant would add little if anything to the process; and/or (2) where the is no real concern about the hearsay form of the statement because its truth and accuracy can be sufficiently tested by means other than contemporaneous cross-examination. See R. v. Couture, at para. 80; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 29-57;

     15. Moreover, Charron J. held that on the admissibility inquiry, a functional approach should be adopted and all relevant factors should be considered, including the presence of supporting or contradictory evidence in appropriate cases. In reaching this conclusion, Charron J. thoroughly reviewed the jurisprudence on this subject and expressly stated, at paras. 4, 93-100, that comments to the contrary in previous decisions, including R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, should no longer be followed. See R. v. Couture, at para. 83; R. v. Badgerow, [2010] O.J. No. 1027, at paras. 155-176;

     16. In Khelawon, Charron J. confirmed, at para. 92, that when the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. That issue is properly left to be determined entirely by the trier of fact. However, when reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show whether the statement is true or not. In any event, as Charron J. noted, at paras. 2-3, it is the function and responsibility of the trial judge as “gatekeeper” to guard against the admission of hearsay evidence which is contextually unnecessary, or “the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact”;

     17. As noted in R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 138-139, the Khelawon decision “advocates a holistic approach to the question of threshold reliability”, and makes it clear that the threshold reliability is not limited to the circumstances surrounding the making of the statement, but rather includes consideration of “the broader picture, including the existence of corroborative evidence” in deciding whether “the statement is inherently trustworthy and thus sufficiently reliable to warrant its reception”. See R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, at para. 52; R. v. Post, 2007 BCCA 123, 66 B.C.L.R. (4th) 148, at paras. 46-52; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 48-55;

     18. Subsequently, in R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30, the Supreme Court of Canada re-affirmed that threshold reliability may be established by: (1) the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and/or (2) sufficient circumstantial guarantees of reliability, or an inherent trustworthiness (substantive reliability), and noted that these two principal ways of demonstrating threshold reliability are “not mutually exclusive”. See R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22; R. v. Singh, 2010 ONCA 808, 266 C.C.C. (3d) 466, at para. 34; R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328, at paras. 32-40; R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 99-105; R. v. M.C., 2014 ONCA 614, 314 C.C.C. (3d) 336, at paras. 52-57; R. v. Kanagalingam, 2014 ONCA 727, 315 C.C.C. (3d) 199 at para. 31; R. v. Napope, 2015 ABCA 27, at paras. 26-34; R. v. Nataucappo, 2015 SKCA 28, [2015] S.J. No. 155, at paras. 30-40;

     19. In R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54, Watt J.A., delivering the judgment of the Court of Appeal for Ontario, observed that, where a party seeks to satisfy the requirement of reliability on the basis of the circumstances in which the hearsay statement was made, some of the relevant factors to be considered include: (1) the timing of the statement in relation to the event reported; (2) the absence of a motive to lie on the part of the declarant; (3) the presence or absence of leading questions or other forms of prompting; (4) the nature of the event reported; (5) the likelihood of the declarant’s knowledge of the event, apart from its occurrence; and (6) confirmation of the event reported by physical evidence. Watt J.A. also noted that this inquiry involves a “functional” consideration of whether the circumstances in which the statement was made “have sufficiently allayed concerns about perception, memory, sincerity and narration, the traditional and inherent hearsay dangers”. See R. v. D. (G.N.), 81 C.C.C. (3d) 65 (Ont.C.A.), at pp. 78-79, R. v. P.C.C., 2007 ONCA 236, [2007] O.J. No. 1171, at para. 6.”

4. Residual discretion to exclude evidence

   • the Court has a residual discretion to exclude otherwise admissible evidence that would undermine a fair trial if admitted; if the admission of certain evidence would adversely affect the fairness of an accused’s trial, the evidence ought to be excluded; judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter’s guarantee of a fair trial and there is no need to resort to s. 24(2) or s. 24(1) for that matter; in such circumstances, the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset;
   • R. v. Corbett, [1998] 1 S.C.R. 670
   • R. v. Harrer, 1995 SCC 70, [1995] 3 S.C.R. 562

Discussion

[18] Having considered the circumstances and the relevant principles, the Court will not allow the admission of Jill Gil’s Bail Hearing testimony of April 12, 2017 as sought by the Crown.

[19] Dealing first with her testimony in regards to Brad Casseus at p. 15 of the transcript, it is tenable that this evidence may be relevant and material.

[20] The unfolding of the trial shows that identification is a significant issue in this trial. It is arguable that prior association between the accuseds Bard Casseus and Marcus Gil who are identified as two of the individuals having entered the unit together, may reasonably serve to support identification by the witnesses. It is unlikely that strangers would act in such a concerted way. So that a prior association between these 2 individuals tends, as a matter of logic and human experience, to make their presence in the unit more likely when looked at in the whole of the evidence, which includes their identification through photographic line-ups and in the courtroom.

[21] Such evidence, in turn, is directed at a matter in issue in this trial and therefore material. It may serve to advance the inquiry before the Court, namely identification.

[22] However, the Court finds that the prejudicial effect of this evidence outweighs its probative value. Her testimony provides very little in terms of the nature of their prior association and more importantly, an historical perspective.

[23] Jill Gil does not describe a friendship and/or relationship between these co-accuseds. She states that the accused, Mr. Casseus attended her home on one occasion and that she only saw him once, she adds, “…that was the end of it…” There is no indication when this took place.

[24] Furthermore, she refers to an incident when they were kids and Mr. Casseus would have stolen an electronic game from Marcus Gil. There is again no indication of when this occurred other than “they were kids”.

[25] So that the significance of the prior association between these 2 individuals referred to by Jill Gil cannot be properly assessed in relation to the alleged events of January 10th, 2017.

[26] The prejudicial effect and unfairness lies in the inability to adequately test and challenge the proposed Bail Hearing evidence through cross-examination by defence.

[27] The proposed Bail Hearing evidence of Jill Gil relating to the accused Marcus Gil’s statements to her that “he was sorry for his actions”, “not knowing what he was thinking” or “how it got that out of hand” and “being willing to take responsibility for his part in it”, are found to meet the basic relevancy and materiality threshold.

[28] As already discussed, identity is a live issue in this trial. There have also been suggestions by defence in cross-examination that the presence of these individuals in the unit was part of a typical drug transaction with Alfred Foerester attending the bank to get money to pay for crack-cocaine as usual. People simply left once the deal was done.

[29] The above noted statements attributed to the accused Marcus Gil by his grandmother can reasonably be interpreted as an admission that he was present and participated in an incident which went beyond a typical drug transaction.

[30] Such an admission has a tendency, as a matter of logic and human experience to make his involvement in the commission of the alleged offences more likely. It is also material since it is directed at issues in this trial and tends to advance the inquiry before the Court.

[31] The next question is whether this evidence meets the reasonable necessity and threshold reliability criteria under the principled approach to hearsay exception.

[32] The evidence establishes that Jill Gil cannot be found notwithstanding reasonable efforts by the police and that this is likely deliberate on her part to avoid having to testify. There is no basis to believe the she will be located in the foreseeable future. The end result is that Jill Gil’s direct evidence on this subject matter is not available for this trial.

[33] The Court rejects the submission that the Crown’s failure to take steps to preserve her evidence should impact on the reasonable necessity criterion. The circumstances are such that the prosecution could not have reasonably foreseen that Ms. Gil would have become unavailable to testify. The following circumstances are noted:

• she has a fixed address in Ottawa where she resided with her husband;
• they were both working as building superintendents where they reside;
• she was present and testified at the April 12, 2017 Bail Hearing;
• the Court was advised that she was present at the Courthouse for the preliminary inquiry in this matter in March 2018.

[34] The Crown has therefore established, on a balance of probabilities, that the admission of the impugned evidence is reasonably necessary.

[35] The question of threshold reliability is found to be more problematic. The Court is of the view that the circumstances do not, on a balance of probabilities, meet this second criterion. While some considerations tend to favour admissibility, on the whole, it cannot be said that the statements attributed to the accused Marcus Gil at the Bail Hearing by Jill Gil do not require further testing. It is not sufficiently reliable so as to overcome the risk arising from the inability to properly test same in the trial through cross-examination.

[36] The following factors support the threshold reliability of the statement made by Jill Gil at the Bail Hearing:

• the statement was given under oath before a Justice of the Peace in a judicial proceeding;
• the Court is provided with a transcript of her statement;
• the extrinsic trial evidence in regards to the accused Marcus Gil having been identified by Crown witnesses through photo line-ups.

[37] The following considerations are found not to support the threshold reliability prong:

• the Court’s fundamental concern is that it is being asked to admit reported hearsay admissions of guilt of an accused person without the benefit of the viva voce testimony of the recipient of such statements;
• the transcript of Jill Gil’s testimony at the Bail Hearing does not provide much, if anything, in terms of the setting and circumstances in which these statements were made by the accused; circumstances in which statements are made are a significant consideration in assessing reliability;
• this lack impacts on reliability and requires appropriate testing through cross-examination by defence counsel on a number of points including:
  • where did these conversations take place? Was the accused in jail?
  • what was the accused’s emotional state at the time? Did he appear to understand and speak rationally?
  • were they alone?
  • how many times did she speak to him?
  • was he responding to her questions?
  • what were his words?
  • did he say anything else?
  • did she promise him anything?
  • was she upset with him and convey this to him?
• the Court doesn’t agree with the suggestion that the relationship between the accused and his grandmother is such that statements made by him to her are inherently reliable; to the contrary, it may be that he told her what he figured she wanted to hear so that she would agree to act as his surety;
• the strength of an accused person’s statement against penal interests rests, in part, in the accused’s belief of the use which can be made of such admission; one reasonable inference in this matter is that the accused would not have believed that his grandmother would have disclosed his admissions to the authorities;
• R. v. Lucier, 1982 SCC 153, [1982] 1 S.C.R. 28
• Jill Gil’s testimony refers to the fact that the accused has mental health issues for which he takes medication, including Risperidone a known anti-psychotic medication; there is no indication whether he was taking his medication when he made the statements.

[38] The Court is of the view that the concerns raised on the issue of threshold reliability also go to the discretion to exclude such evidence on the basis that the probative value of the proposed evidence is outweighed by its potential prejudicial effect.

[39] Therefore, the Court finds that the proposed hearsay evidence of Jill Gil is not admissible under the principled approach to hearsay exception.

[40] The last point the Court wishes to address in this ruling revolves around the Court’s residual discretion to exclude otherwise admissible evidence on the basis of trial fairness for the accused.

[41] As already noted, defence counsel argues that the evidence should be excluded because Jill Gil, a proposed surety, was improperly cross-examined by Crown counsel in regards to what she was told by the accused. As such, the Bail Hearing was used by the Crown to bolster its case which is unfair. This view certainly finds support in Justice Harris’ recent Addendum to Bail Review Endorsement in R. v. K.K., [2019] O.J. No. 1231. He states the following at para. 31:

“...the discovery of the defence case is contrary to basic principle. To protect vital defence interests and the defendant’s right to silence, the impugned questions should not be permitted…discovery of the defence case at a bail hearing should be prohibited”.

[42] Justice Taylor took a different position in R. v. Badgerow, [2010] O.J. No. 1027 where the Crown was allowed to adduce trial evidence obtained by asking questions during a Bail Hearing of proposed sureties about vehicles owned by the accused’s grandparents. It was argued that Crown counsel acted improperly by asking questions of proposed sureties not relevant to the issue of bail. In turn, the admission of this evidence would have violated the accused’s right to a fair trial. The Court said the following at para. 9:

“9. I do not read either of these cases as standing for the proposition that the Crown violates the right of an accused to a fair trial if it learns of evidence during the course of the bail hearing that it subsequently wishes to introduce at the accused’s trial”.

[43] Justice Taylor then goes on to state the following at para. 11:

“11. If I am wrong in this conclusion, and Robert Badgerow’s right to a fair trial has been violated as a result of the questions put to sureties at the bail hearing, I think I would be obliged to exclude this evidence. It would not be proper for me to permit evidence to be presented which would result in an unfair trial”.

[44] It would seem to the Court that the proper limit of Crown counsel’s cross-examination of a proposal surety at a Bail Hearing should rest with the presiding judicial officer based on the rules of evidence set out in s. 518 of the Criminal Code and relevancy to the ultimate purpose of such hearings. The Court’s view is that it should not be governed by predefined rules of automatic inclusion and/or exclusion. As noted by Justice Hill in R. v. John, [2001] O.J. No. 3396:

“…the Court is tasked with control of its own process, prohibiting the abuse of meandering discovery, while maintaining the focus of the s. 515 test”.

[45] While Bail Hearings are “meant to be expeditious, with a degree of flexibility and procedural informality…” (see R. v. John, op. cit.), the focus remains whether the accused person should be detained in custody pending his trial based on one or more of the 3 grounds set out in para. 515(10) of the Criminal Code. As stated by Justice Harris in R. v. K.K. (op. cit.), a Bail Hearing cannot be used by the Crown to discover the defence position and elicit evidence from the surety of the accused’s admissions.

[46] The Court echoes the words of Justice Trotter at pp. 5 – 62 of his book The Law of Bail in Canada:

“First, there is a fine line between eliciting relevant information on the one hand and using the opportunity to question sureties as a discovery mechanism. To the extent that a prosecutor asks questions about admissions for this purpose, it is not a legitimate basis for pursuing this line of inquiry. It is irrelevant to the task at hand. Moreover, it contributes to unnecessary time spent on in-court examinations of sureties”.

[47] The distinct issue to be decided by the Court is whether it would be unfair to admit Jill Gil’s testimony as sought by the Crown. As a general proposition, the Court is of the view that it would be unfair to admit such evidence if Crown counsel crossed the “fine line” noted by Justice Trotter. So the question is whether the Crown was eliciting relevant information or using the opportunity to question the proposed surety as a discovery mechanism.

[48] The relevance of evidence is contextual and cannot be properly evaluated in a vacuum. As noted by the Supreme Court of Canada in R. v. Cloutier, 1979 SCC 25, [1979] 2 S.C.R. 709:

“…relevance is assessed in the context of the entire case and the positions of counsel…”

[49] The Court is mindful of the issues generally raised in Bail Hearings. However, it is difficult to appreciate the significance of the information sought by the Crown without context and an understanding of the specific issues raised in this hearing. On what ground or grounds was the Crown seeking detention? Was the accused challenging the strength of the Crown’s case? Did defence raise the question of Marcus Gil’s identification as one of the culprits prior to Jill Gil’s testimony? Was this issue raised with the Justice of the Peace during submissions?

[50] The Court finds that Crown counsel’s cross-examination of Jill Gil which led to the disclosure of statements made to her by the accused Marcus Gil was primarily as a discovery mechanism as opposed to the eliciting of relevant information. This finding is based on the following considerations:

• as noted above, the Court was not provided with a record allowing for a determination of the relevancy of the proposed evidence; this should have been provided by the Crown since the prosecution seeks to admit this evidence and therefore, bears the onus of establishing its admissibility;
• the testimony of Jill Gil is not seen as having set the path or opened the door to Crown counsel’s cross-examination; she had stated “…Marcus is very aware, and even he, himself, knows that things got out of hand, went too far…”; she also referred to him knowing that he had made mistakes in the past; these comments did not allow cross-examination to the extent pursued by the Crown;
• the subject matter of what the accused told her was pursued as follows by the Crown: Page 30 “Q. Okay. You said you are very close to Marcus? A. I am close with Marcus, yes. Q. And you have discussions with him? A. Yes”. Page 31 “Q. I’m talking about have you talked to Marcus since these allegations, about these allegations? A. About the - the crack? Q. No. I’m talking about the ones that were before the Court, about going into the house, the residence with – the handgun? A. Yes, I have talked to him”. Page 32 “Q. In your mind, there’s no doubt that he went to this house with a handgun”.
• when asked by the Justice of the Peace where he was going with his question, Crown counsel explained that he had a follow-up question about Jill Gil’s commentary that it was “a mistake that he’s – she’s called Mr. Gil’s previous behaviour mistakes and so on, ask her about that”; this is not seen as a justification for the question of whether the accused had told her that he went to the house with a handgun;
• the Crown’s stated position when challenged by Jill Gil was that “…It’s perfectly reasonable for me to ask you if Marcus had told you about these events”; this statement is supportive of the Court’s finding that Crown counsel was attempting to gather evidence against the accused through her cross-examination; it is also supported by Crown counsel’s suggestion to her that she was trying to protect him from criminal responsibility when she stated that she didn’t want to answer questions in regards to what the accused had told her and it was up to him to make any kind of confession; it wasn’t for her to do so.

[51] The unfairness in admitting this evidence is reinforced by the following:

• Jill Gil was not cross-examined by defence on this subject-matter;
• she cannot be located and therefore, not available for cross-examination in this trial;
• as noted earlier in this ruling, there is no evidence of the circumstances surrounding the making of these statements.

[52] The Court finds that even if the impugned evidence was otherwise admissible under the principled approach to hearsay exception, the evidence would be excluded pursuant to the Court’s residual discretion to exclude evidence based on trial fairness for the accused.

Conclusion

[53] Therefore, for the reasons discussed in this ruling, the Court will not allow the admission of the portions of Jill Gil’s Bail Hearing testimony of April 12th, 2017 as sought by the Crown.

The Honourable Justice R. Laliberte Released: 2019/05/07