citation: "R. v. Hoffman, 2019 ONSC 3435" parties: "Her Majesty the Queen – and – Gary Hoffman" party_moving: "Her Majesty the Queen" party_responding: "Gary Hoffman" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: trial date_judgement: "2019-06-11" date_heard: ["2019-05-27", "2019-05-28"] applicant:
- "Her Majesty the Queen" applicant_counsel:
- "Adam Bernstein"
- "Theo Sarantis" respondent:
- "Gary Hoffman" respondent_counsel:
- "Michael A. Moon"
- "Nadia Klein" judge: "J.M. Woollcombe" summary: > During a manslaughter trial, the Crown sought to admit a recanting witness's prior videotaped police statement for the truth of its contents. The witness, Peter Ohja, had previously implicated the accused, Gary Hoffman, but at trial claimed intoxication and memory loss, denying his prior statement's accuracy. The defence argued the statement lacked procedural and substantive reliability. The court found the statement procedurally reliable, noting it was videotaped, the witness understood the importance of truth, and meaningful cross-examination was possible despite his intoxication and claimed memory loss. The Crown's application was granted, and the statement was admitted for the jury to determine its ultimate reliability. interesting_citations_summary: > This decision applies the principled approach to hearsay admissibility, specifically addressing threshold reliability for prior inconsistent statements of recanting witnesses. It clarifies that procedural reliability can be established through videotaped statements and available cross-examination, even in the absence of an oath or explicit caution about lying, and despite witness intoxication or claimed memory loss. The court distinguishes previous cases like Conway and Diu by emphasizing the importance of a videotaped statement and the possibility of meaningful cross-examination, even if challenging. It reinforces that procedural and substantive reliability are alternative routes to threshold reliability, and only one needs to be met. final_judgement: The Crown's application to admit Peter Ohja's September 24, 2015 videotaped statement for the truth of its contents is granted, as it meets the threshold for procedural reliability. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3435 file_number: "CRIMJ(P) 359/17" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3435/2019onsc3435.html" keywords:
- Hearsay
- Admissibility
- Prior Inconsistent Statement
- Recanting Witness
- Procedural Reliability
- Substantive Reliability
- Canada Evidence Act
- Manslaughter
- Criminal Law
- Evidence areas_of_law:
- Criminal Law
- Evidence
cited_cases:
legislation:
- title: "Canada Evidence Act, R.S.C., 1985, c. C-5, s. 9(2)" url: "https://laws-lois.justice.gc.ca/eng/acts/C-5/page-2.html#docCont" case_law:
- title: "R. v. Bradshaw, 2017 SCC 35" url: "https://www.canlii.org/en/ca/scc/doc/2017/2017scc35/2017scc35.html"
- title: "R. v. B. (K.G.), [1993] 1 S.C.R. 740" url: "https://www.canlii.org/en/ca/scc/doc/1993/1993canlii116/1993canlii116.html"
- title: "R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520" url: "https://www.canlii.org/en/ca/scc/doc/2013/2013scc35/2013scc35.html"
- title: "R. v. Khelawon, 2006 SCC 57" url: "https://www.canlii.org/en/ca/scc/doc/2006/2006scc57/2006scc57.html"
- title: "R. v. Taylor, 2015 ONCA 448" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca448/2015onca448.html"
- title: "R. v. Youvarajah, 2013 SCC 41" url: "https://www.canlii.org/en/ca/scc/doc/2013/2013scc41/2013scc41.html"
- title: "R. v. Hawkins, [1996] 3 S.C.R. 1043" url: "https://www.canlii.org/en/ca/scc/doc/1996/1996canlii154/1996canlii154.html"
- title: "R. v. Mohamed, 2018 ONCA 966" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca966/2018onca966.html"
- title: "R. v. Charlton, 2019 ONCA 400" url: "https://www.canlii.org/en/on/onca/doc/2019/2019onca400/2019onca400.html"
- title: "R. v. Trieu, 2015 ONCA 1367, [2015] O.J. No. 1083 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca1367/2015onca1367.html"
- title: "R. v. Ivall, 2018 ONCA 1026" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca1026/2018onca1026.html"
- title: "R. v. Adjei, 2013 ONCA 512" url: "https://www.canlii.org/en/on/onca/doc/2013/2013onca512/2013onca512.html"
- title: "R. v. Blowes-Serrata and Nelson, 2018 ONSC 1268" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc1268/2018onsc1268.html"
- title: "R. v. Conway, [1997] O.J. No. 5224 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1997/1997canlii2726/1997canlii2726.html"
- title: "R. v. Monteith, [2008] O.J. No. 2275"
- title: "R. v. Zaba, 2016 ONCA 167" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca167/2016onca167.html"
Court File and Parties
COURT FILE NO.: CRIMJ(P) 359/17 DATE: 2019 06 11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – GARY HOFFMAN
Counsel: Adam Bernstein and Theo Sarantis, for the Crown Michael A. Moon and Nadia Klein, for accused
HEARD: May 27-28, 2019
Reasons for Ruling on Crown KGB Application
J.M. Woollcombe J.
Introduction
[1] Gary Hoffman, is charged with manslaughter in relation to the death of Madad Kenyi. His death followed an altercation in a park behind the Westwood Mall in Malton. The Crown alleges that in that altercation, Mr. Kenyi was attacked and hit with a branch and kicked. The Crown alleges that Mr. Hoffman was a participant in the attack.
[2] The trial is underway. The Crown called as a witness Peter Ohja, who was present in the park at the time of the altercation. He knows the accused, and testified that the accused was also present in the park. This much is not controversial.
[3] During Mr. Ohja’s evidence, he was asked about what he had seen the accused do towards Mr. Kenyi on September 24, 2015. He said he had not been able to see any of the altercation and that he had not seen the accused do anything.
[4] The Crown applied under s. 9(2) of the Canada Evidence Act to cross-examine him on what were alleged to be prior inconsistent statements contained in his police statement of September 25, 2015, the day after the incident that led to Mr. Kenyi’s death occurred. Following a voir dire, I permitted this cross-examination by the Crown of Mr. Ohja on his statement to Constable Dawe. I subsequently provided oral reasons for that decision.
[5] Mr. Ohja’s statement includes the following evidence about the accused (who he knows as G-Money):
a) DAWE: Okay, okay. Who picked up the s-… PETER: Fi-… DAWE: Who picked up the stick? PETER: G-Money DAWE: G-Money? PETER: Yeah
b) “G-Money is the one who grabbed the fucking wood and started beating him”;
c) DAWE: Who broke it off the branch? PETER: G-Money. DAWE: G-Money broke it off the branch. PETER: Yeah, ‘cause he come out of the bush… DAWE: Okay. PETER: …with a fucking piece of wood, you know what I mean? DAWE: Okay. And when he came out of the bush was he saying anything? PETER: Uh, no, he just started beat-… DAWE: And, and when, when, uh, the-, your, your African friend got hurt or hit, was he standing up or on the ground? PETER: He was on the ground. DAWE: He was on the ground. Who took… PETER: And they was still licking him, man. DAWE: Wh-, who, who took him to the ground? PETER: He-, G-Money…
d) DAWE: I do, I do, man, I do. Um, when you saw G-Money break that branch off, right? And, and when he hit the African guy, how many times did he hit him, do you know? Like just, just to your memory. PETER: Oh, fuck, b, they were lacing him, eh? DAWE: When you say, they were lacing him… PETER: All three of them were fucking-, they were hitting the man or what. Like ( demonstrates ). I couldn’t watch it man, I, I…
e) DAWE: Okay. Did you see G-Money do anything negative to the victim? PETER: Yes. DAWE: Okay. And did you see… PETER: Bugs. DAWE: …Bugs do anything… PETER: Yes DAWE: …negative to the victim? PETER: Yes. DAWE: So to your knowledge there’s two people that did something negative to the victim, right? PETER: Precisely. DAWE: Okay. All right, and from what you’ve told me so far and m-, I’m just gonna clarify, make sure I am correct, you told me that you saw Bugs-, or not Bugs, you saw G-Money walk into the bushes, break a br-, gr-, grab… PETER: Grab a piece of like… DAWE: …grab a branch. PETER: Yeah. DAWE: Now did he-, you said he broke it off a tree, right? PETER: Yeah, yeah. DAWE: And then, and then he- then what? PETER: He came up… DAWE: Yeah. PETER: …he started beating him… DAWE: How? PETER: ..,right there. DAWE: So pr-, pretend that the stick is like a baseball bat. PETER: Yo, he knock in the other one, Bugs rush him from behind… DAWE: Okay. PETER: …right? And G started lacing him. DAWE: Okay. PETER: See?
[6] Cross-examination by the Crown of Mr. Ohja on his statement did not lead to his adoption of that statement. Mr. Ohja’s evidence includes that:
- when he gave the statement he was intoxicated by alcohol and drugs. He described himself as having been “out of it” and that he was “high as a kite”;
- in the statement, he was just repeating what other people had told him the next day at the park, prior to him speaking with the police;
- he only said what he thought the police wanted to hear so he could leave the division;
- he did not see the beating because there were people blocking his view;
- he has no recollection of that night at all;
- when he told the officer that he could not watch what was happening, he only said this to try to get away.
[7] The Crown then brought an application to admit Mr. Ohja’s prior statement into evidence for the truth of its contents.
[8] On this application, I heard further evidence from Mr. Ohja, as well as from Constable Dawe, who took the statement, and Constable Wehby, who assisted in transporting Mr. Ohja to the police division for the taking of the statement, and who watched the taking of the statement on a television monitor in another room. Counsel both made submissions and filed numerous cases.
[9] In short, it is the Crown’s position that it has established that Mr. Ohja’s videotaped statement meets the reliability threshold because of both its procedural and substantive reliability.
[10] The defence position is that the Crown has failed to meet its burden of establishing that the hearsay statement is admissible for its truth because there is neither procedural nor substantive reliability.
[11] Following the evidence and arguments, I advised counsel that I had determined that Mr. Ohja’s statement was admissible, and that I would provide written reasons to follow. These are those reasons.
Legal Principles
[12] Out of court statements tendered for their truth are hearsay and are presumptively inadmissible. There are sound reasons for this to be the starting point. It is difficult to assess whether such statements are trustworthy. As Karakatsanis J. observed in R. v. Bradshaw, 2017 SCC 35 at para. 20:
20 …Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered ; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner ; and finally, the declarant may have knowingly made a false assertion . The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original; para. 32.]
[13] However, there are times when hearsay evidence “presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding”: R. v. Khelawon 2006 SCC 57 at para. 2; Bradshaw at para. 22. Thus, under the principled approach to the admissibility of hearsay evidence, it may be admitted for its truth when the party seeking to tender it establishes, on a balance of probabilities, that the criteria of necessity and threshold reliability are met.
[14] Necessity may be established when a witness recants: R. v. Taylor, 2015 ONCA 448 at para. 69; R. v. Youvarajah, 2013 SCC 41 at para. 22. There appears to be no issue in this case that Mr. Ohja has recanted his previous statements that implicate Mr. Hoffman in the attack on Mr. Kenyi. No argument was advanced that the Crown had failed to meet the necessity criteria.
[15] The only issue to be determined in this case is whether the Crown has met its burden of establishing threshold reliability. In Bradshaw, Karakatsanis J. said the following respecting how threshold reliability is to be assessed at paras. 26-27:
26 …Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous [page880] cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.
27 The hearsay dangers can be overcome and threshold reliability can be established by showing that (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) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).
[16] It is clear from Bradshaw, at para. 32, as well as from the Court of Appeal’s subsequent decisions in R. v. Mohamed, 2018 ONCA 966 at para. 92, and R. v. Charlton, 2019 ONCA 400 at para. 30, that threshold reliability may be established on the basis of either the statement’s substantive reliability or its procedural reliability, or a combination of both substantive and procedural reliability. As was set out by Watt J.A. in Mohamed at para. 115
115 …The alternatives are not mutually exclusive. Where the elements of one have been established on a balance of probabilities, it is no answer for an opponent to contend that the evidence does not satisfy the other. Procedural reliability and substantive reliability afford two routes to the same destination – threshold reliability. They are equivalents in the quest to establish threshold reliability.
[17] Procedural reliability and substantive reliability have specific meanings in this context.
[18] Procedural reliability is established when there are adequate substitutes for testing the statement’s truth and accuracy, given that the statement was not made in court where it would have been under oath and subject to cross-examination. These substitutes must provide a basis for the trier of fact to evaluate the truth and accuracy of the hearsay statement. They may be things in place when the statement is taken, and include video recording of the statement, the presence of an oath and a warning about the consequences of lying. Or, they may be safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact. What is critical is that the trier of fact have a satisfactory basis for testing the hearsay statements. The authorities make clear that some form of cross-examination, either at a preliminary inquiry or at trial, is usually required: Bradshaw, at para. 28; Mohamed at para. 100.
[19] Substantive reliability is established when a hearsay statement is inherently trustworthy. To determine whether this is the case, the trial judge may consider the circumstances in which it was made, and evidence that corroborates or conflicts with the statement: Bradshaw at paras. 30-31. The standard for substantive reliability is high. While there is no requirement for a finding of reliability to an absolute certainty, the statement must be sufficiently reliable that contemporaneous cross-examination would add little to the process. As was explained in Mohamed at paras, 103-104:
103 In evaluating substantive reliability, a trial judge can only rely on corroborative evidence if that evidence, considered as a whole and in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about or the accuracy of material aspects of the statement: Bradshaw, at para. 44.
104 Corroborative evidence must relate to the truthfulness or accuracy of material aspects of the declarant’s hearsay statement. And at the stage of threshold reliability, corroborative evidence must work in conjunction with the circumstances in which the statement was made to overcome the specific hearsay dangers raised by the tendered statement: Bradshaw, at paras. 45 and 47.
Analysis
1. The Hearsay Dangers in this Case
[20] The defence position is that the real concern with Mr. Ohja’s hearsay statement relates to his perception and his memory. I shall elaborate on each of these.
[21] The parties appear to agree that Mr. Ohja had consumed intoxicants both on the night of the attack in the park and the next day, prior to the time he provided the statement to Constable Dawe.
[22] The defence says that Mr. Ohja’s ability to perceive the events he describes in his hearsay statement was seriously impaired because of his intoxication. Further, Mr. Ohja has testified that at the time he made his statement, he was intoxicated by alcohol, had consumed marijuana and was abusing oxycontin. He has described himself as a binge drinker at the time. He claims to have been delusional and says that he does not even recognize the person on the video as being him. The defence position is that as a result of his intoxication, both at the time he made his observations in the park about which he spoke in his statement, and at the time that he made the statement, there are real concerns about the accuracy and reliability of what he was recounting. The defence says it is difficult to cross-examine a person about what they said when they were delusional and intoxicated and that it will be impossible for the trier of fact to assess whether what Mr. Ohja said to Cst. Dawe was true.
[23] In terms of memory, the hearsay concern is that Mr. Ohja now has an inability to recall either the events of September 24th, or the giving his statement on September 25th. His absence of memory is said by the defence to make it difficult to assess the truthfulness of what he said in his statement about the events. It is submitted that cross-examination will be effectively illusory.
2. Procedural Reliability
[24] In this case, Mr. Ohja’s statement to Cst. Dawe was videotaped. It was not given under oath. Nor was Mr. Ohja specifically told that he could be charged if he lied.
[25] As Watt J.A explained in Taylor, at paras. 74 and 81, the most important factor in assessing procedural reliability is the availability of the hearsay declarant as a witness in the proceedings so that the other party can cross-examine that person before the trier of fact.
[26] Indeed, in R. v. Trieu, 2015 ONCA 1367, [2015] O.J. No. 1083 (C.A.) at para. 76, Moldaver J.A. (as he then was) speaking on behalf of the court, went further and said, at para. 76:
Accepting that cross-examination "goes a substantial part of the way" towards ensuring that the triers of fact can adequately assess reliability, I believe that when the triers also have a videotape of the declarant making the statement, the two in combination go virtually "all of the way" to providing the triers with the tools they need to adequately assess reliability.
[27] The court went on to find, at para. 78 of Trieu, that if a hearsay declarant is available for cross-examination, and the hearsay statement was videotaped, then the role of the oath at the point when the hearsay statement was made, as a further indicator of reliability, is “a modest one”.
[28] I understand Mr. Moon’s position to be that, in light of Bradshaw, this is no longer an accurate statement of the law. He submits that the presence of an oath and a warning about the consequences of lying are critical parts of meeting threshold reliability.
[29] I disagree with the defence position that Bradshaw has overruled Trieu. This very passage from Trieu was cited with approval by the Court of Appeal in its decision in R. v. Ivall, 2018 ONCA 1026, a case in which the admissibility of the hearsay was specifically considered in light of the Supreme Court of Canada’s decision in Bradshaw. It does not appear to me that the Court of Appeal was of the view that Bradshaw “eclipsed” Trieu as Mr. Moon suggests. Assuming that meaningful cross-examination is possible, the law is clear that procedural reliability can be established in the absence of an oath: R. v. Adjei, 2013 ONCA 512 at para. 36; B (K.G.) at para. 95-96.
[30] I find the absence of an oath having been administered to Mr. Ohja prior to him making his statement to Cst. Dawe has, in the circumstances of this case, minimal impact on the procedural reliability of the statement.
[31] In this case, as Mr. Moon points out, there was no caution ever given to Mr. Ohja about the consequences of lying to Cst. Dawe in his statement. However, it seems to me, having watched the videotaped statement and listened to Mr. Ohja’s evidence, that the circumstances of the taking of the statement impressed upon Mr. Ohja the importance of telling the truth. He understood that he was speaking with a police officer about a serious matter. He knew that the officer wanted to speak to him about the incident in the park and to know what had happened. He knew that his statement was video and audio recorded. He testified, at least at one point, that he was not promised anything by the police, or threatened by them, or told by them that he had to speak to them. While I appreciate that his evidence about this changed when he was questioned by Mr. Moon, and that he asserted that he had not wanted to speak with the officers and felt that he had to, I found his initial evidence to be much more believable, particularly in view of Cst. Dawe’s evidence as to how Mr. Ohja came to be at the police Division to provide the statement.
[32] Furthermore, several of the things he said during the statement suggest that Mr. Ohja appreciated the importance of being truthful. For instance, when Mr. Ohja did not know the answer to questions about peoples’ eye colour, he was told to give an honest answer and say if he did not know. He did so. At one point, when asked about tattoos on one of the people in the park, and after being told that he could say if he was unsure, Mr. Ohja answered “I wouldn’t lie against someone”. Asked if he could remember what the accused had been wearing, Mr. Ohja responded, “Honestly, I can’t”. Repeatedly, Mr. Ohja acknowledged that there were details that he could not recall and so he declined to answer questions. At one point, when asked about a person’s clothing, Mr. Ohja responded, “If I say something now, it would be lying”. At a subsequent point, when the officer told Mr. Ohja he had done the “right thing”, Mr. Ohja said “it’s time I do the right thing, man…I hate to see bullshit. Right? Like that injustice man…”. At yet another point, when asked how close someone had been, he answered, “Um, honest to God, I can’t say…If I say something, then I would be lying”.
[33] In my view, the videotaped statement reveals that, while he had not been specifically told he could be charged for lying, Mr. Ohja certainly appreciated the importance of the occasion and of telling the truth. I do not see the absence of a caution about lying to the police to be of much significance to the procedural reliability of his statement in these circumstances.
[34] In my opinion, the biggest concerns about procedural reliability relate to the fact that Mr. Ohja was intoxicated both on September 24 and when he gave the statement on September 25th and, in addition, that he has testified to having no memory about the events that he speaks about in his September 25, 2015 statement. In combination, I accept that the factors will make it more difficult to cross-examine him in a manner that will assist the trier of fact in assessing truth of what he said in his videotaped statement.
i) The Significance of Mr. Ohja’s Intoxication
[35] In R. v. Blowes-Serrata and Nelson, 2018 ONSC 1268, Coroza J. considered the effect on Mr. Ohja’s intoxication and drug consumption on the admissibility of two statements he had made to police, one of which was the statement to Cst. Dawe on September 25, 2015. The argument made before Coroza J. appears to have been the same one as that advanced here: that it would be futile to cross-examine Mr. Ohja when he asserts that he was intoxicated and under the influence of drugs at the time he made the statements. In his ruling admitting the videotaped statement, Coroza J. found that while cross-examination would be more challenging, it would not be illusory, and that the jury would be able to see Mr. Ohja’s demeanour when he gave the statement and to assess his explanation for why he said what he said.
[36] I accept Mr. Moon’s submission that, in respect of the intoxication, Cst Dawe agreed that it would have been preferable for him to have inquired of Mr. Ohja both about how much alcohol and drugs he had consumed before he took the statement, and about the extent to which his consumption of intoxicants affected his ability to recount what he saw on September 24th. The defence position is, by way of summary, that Mr. Ohja was a drunken person, giving a statement about things he does not remember, and that the defence ability to cross-examine will, as a result, be illusory.
[37] I do not accept this.
[38] First, the entire statement was videotaped. This will enable the jury to carefully observe the manner in which Mr. Ohja conducted himself over the course of the statement. More specifically, the jury will be able to watch Mr. Ohja’s movements, posture and demeanour, as well as the manner in which he spoke and responded to questions. All of these factors will be relevant to their assessment as to how intoxicated he was, and what influence this had on the truthfulness of what he said.
[39] Second, Mr. Ohja has testified already and answered questions under cross-examination. He has been asked about his own level of intoxication and what effect he believes that had on what he said in the interview. In my view, he has shown that he is very willing to and capable of describing the degree of his intoxication, including providing some detail about precisely what he had consumed, and how he thinks it affected his ability to accurately recount the details of what he had seen on September 24, 2015. He seemed to me to have no difficulty in answering these questions. I think that cross-examination is likely to be a very effective tool, and of some real assistance to the jury in their assessment of the truthfulness of the contents of his statement.
[40] Finally, Mr. Hoffman has demonstrated that, despite the fact that he was intoxicated when he gave his statement, he has some significant memory about the events at issue, and therefore is able to say which parts of his statement of September 25, 2015 are inaccurate. He has also offered a number of explanations as to why his statement includes these inaccuracies, including the fact and level of his intoxication. Under cross-examination, he will, I expect, be able to articulate the various reasons why he said things that he now says were false. Again, this will be of great assistance to the jury in assessing whether his previous statement is true.
[41] Accordingly, in my view, the fact that Mr. Ohja was under the influence of alcohol will not render the cross-examination illusory. Cross-examination will enable the jury to understand why Mr. Ohja has changed his evidence and will, I believe, provide them with the information they need to determine whether or not Mr. Ohja was truthful in his statement.
ii) The Significance of Mr. Ohja’s Memory Loss
[42] In terms of memory, a number of authorities have been provided to me in which there has been consideration of the significance to threshold reliability of a hearsay declarant’s assertion that he or she has suffered from a memory loss.
[43] In R. v. Conway, [1997] O.J. No. 5224 (C.A.), the Court allowed an appeal in which the trial judge had concluded that the criteria set out in K.G.B. were met. The statement was not on oath and there was little done to impress upon the witness the importance of telling the truth. Critically, as well, the statement was not videotaped which, as the Court observed, meant that the trier of fact was deprived of being able to observe the witness’s demeanour when he gave the statement. The trial judge, in admitting the statement, placed considerable reliance on the fact that the declarant was available to be cross-examined. The difficulty was that the hearsay declarant testified at trial that he did not remember the events discussed in his statement. In these circumstances, the Court of Appeal concluded that cross-examination was largely fruitless and did little to ensure that the reliability criterion for admissibility was met.
[44] This issue was also considered by Brown J. (as he then was) in R. v. Monteith, [2008] O.J. No. 2275. In that case, the victim of a nightclub shooting provided a videotaped statement to police two weeks after the shooting. Leave was granted to cross-examine him, under s. 9(2) of the Canada Evidence Act, and the Crown then sought to tender his hearsay statement for its truth. The witness testified that he did not recall the events of the shooting. In ruling the statement admissible, Brown J. stated, at paras. 21-22:
21 When the circumstances of the Duong and Conway cases are examined closely, I do not see them as standing for an unequivocal proposition that testimony in chief by a declarant at trial that he cannot remember the events in issue will prevent the jury in all cases from assessing the reliability of an out-of-court statement and therefore stand as a bar to its admission under K.G.B. Both cases are much more nuanced and turned on the particular circumstances in which the prior statements were taken and, in the case of Duong , the severe limitations placed by the trial judge on the defence's ability to cross-examine the declarant.
22 In the present case the declarant has admitted to making the prior statement. That statement was made under oath, following a caution, and was videotaped. On the section 9(2) voir dire Mr. Ganesh was responsive to the defence's cross-examination: see, R.v. S.S., supra , paras. 34 to 38. When the trial continues the defence will have a full opportunity to cross-examine Mr. Ganesh on his videotaped statement.
[45] Most recently in R. v. Zaba 2016 ONCA 167 the Court of Appeal again considered a complaint that the accused had been deprived of an opportunity for meaningful cross-examination because the recanting complainant denied having any memory of the events outlined in her statement. In dismissing the ground of appeal, Huscroft J.A., for the Court, wrote at paras. 15-16:
15 Plainly, the appellant did not get everything he wanted from cross-examination. In particular, the complainant did not recant her allegations of abuse. Her memory was selective. But cross-examination was not rendered meaningless on this account. A considerable amount of information was elicited from the complainant, who agreed with many of defence counsel's suggestions. The trial judge carefully considered the impact of the complainant's professed memory lapses and concluded that they did not have the effect of rendering the right to cross-examination illusory so as to bar admission of her statement. This conclusion was open to the trial judge on the record.
16 Neither Conway nor Diu is authority for the proposition that difficulties in cross-examination render an out-of-court statement inadmissible in all circumstances. In Conway, unlike this case, the other K.G.B . criteria were not satisfied -- that is, the statement was not made under oath or affirmation and was not videotaped. In Diu , although the statement was videotaped it was not made under oath or affirmation. Not only were the other K.G.B. criteria satisfied in this case, but there were additional indicia of reliability including photographs of the complainant's injuries and the evidence of Mr. Valiquette.
[46] It seems to me that there is no hard and fast rule about whether a recanting witness’s claim of a loss of memory will render illusory cross-examination of that witness on his or her prior statement. And there is no hard and fast rule as to whether the threshold for procedural reliability is met when the recanting witness purports to have no memory. All of the circumstances of the particular case need to be considered for a fact-specific determination to be made.
[47] In this case, I do not accept that Mr. Ohja’s memory loss will render cross-examination of him about his videotaped statement illusory. I say this for two reasons.
[48] First, it is clear to me that Mr. Ohja does have many memories of the evening of September 24th. He recalls arriving at the park. He recalls meeting Papito. He recalls seeing Mr. Kenyi. He recalls seeing G-Money. He recalls an altercation. He recalls seeing someone obtain a branch. He recalls that he had thought that this person was the accused, but that he now knows that it was not. Perhaps most importantly, he says that he recalls that he could not see the altercation because there were people blocking his view. He recalls there being ambulance attendants. He recalls how he left the park. It is simply not the case that Mr. Ohja has no memory of the events now. His claimed loss of memory about the events will not, in my opinion, preclude effective cross-examination that will assist the jury in assessing whether the version of events he has testified about, or the version of events contained in his earlier statement is true.
[49] Second, Mr. Ohja has many explanations as to why he said what he said in the statement, and why he now says that it was false. It is not the case that he does not know why he said what he said. His explanations include that others told him what had happened, the police told him he had to say certain things and that he was intoxicated. He can be cross-examined about these explanations. His answers will assist the jury in their assessment as to whether his videotaped statement is reliable.
[50] I conclude that Mr Ohja’s memory loss will not prevent meaningful cross-examination.
3. Substantive Reliability
[51] Given my conclusion that the Crown has met its burden of demonstrating procedural reliability in respect of the hearsay statement, I need not consider whether it has also established substantive reliability. Once the Crown meets its burden of establishing procedural reliability, threshold reliability is met and the statement is admissible for the trier of fact to assess and for a determination of ultimate reliability.
[52] I am aware that when he considered this issue in relation to statements made by Mr. Ohja respecting Mr. Blowes-Serrata and Mr. Nelson about this same incident, Coroza J. concluded that substantive reliability was met. It was his view that the statements were inherently trustworthy and that the circumstances tended to support an inference that Mr. Ohja had first-hand knowledge about the altercation: R. v. Blowes-Serrata and Nelson.
[53] While there are a number of factors that might point towards substantive reliability in this case, because it is not necessary to do so, I decline to engage in this analysis.
Conclusion
[54] I have concluded that Mr. Ohja’s September 24, 2015 videotaped statement is procedurally reliable. Threshold reliability is met here. While not under oath, it was made in circumstances in which I find Mr. Ohja understood the importance of telling the truth. Most importantly, he will be available for cross-examination. For the reasons I have explained, I reject the suggestion that his level of intoxication and his claimed memory loss will preclude meaningful cross-examination. The statement will be admitted, and it will be for the jury to determine the ultimate reliability of the statement.
Woollcombe J. Released: June 11, 2019