Court File and Parties
COURT FILE NO.: CR 18-233
DATE: 2019/11/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
- and -
DALE KING Accused
Counsel: G. Akilie and B. Adsett on behalf of the Crown J. Shime and O. Goddard for the accused
HEARD: November 12, 2019
A.J. Goodman J.:
RULING ON APPLICATION TO ADMIT EVIDENCE FOR SUBSTANTIVE USE BY JURY- KGB APPLICATION
[1] During the course of trial ,the Crown attorney sought to introduce the transcript of a proceeding that includes an Agreed Statements of Facts (“ASF”) that were tendered in support of James Matheson’s (“Matheson”) guilty plea. In relation to his involvement in the matter before this Court, on August 20, 2018, Matheson plead guilty to a charge of attempt to obstruct justice before Zivolak J. in the Ontario Court of Justice.
[2] After hearing submissions, I granted the Crown’s application, what is often referred to as a “KGB application”, R. v B. (K.G) 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740. I provided a brief oral ruling with reasons to follow. These are my Reasons.
Background:
[3] Originally, Matheson and the accused, Dale King, (“King”) were both arrested for second degree murder of Yosif Al-Hasnawi. After his arrest Matheson’s charge was reduced to accessory after the fact. Subsequently, he plead guilty to attempt to obstruct justice and was sentenced on October 30, 2018. He received a sentence of time served of 389 days with two years’ probation.
[4] During the course of that guilty plea proceeding, Matheson swore under oath to an ASF in support of the underlying facts to substantiate his plea.
[5] There was no qualification to any of the facts read in by the Crown and adopted by Matheson before Zivolak J.
[6] In this case, the Crown, pursuant to the procedure outlined in R. v. Coffin (1956), 1956 CanLII 94 (SCC), 114 C.C.C. 1 (S.C.C.) gave Matheson his guilty plea and preliminary inquiry transcripts to read in order to refresh his memory.
[7] After reading the relevant portion of the transcripts, Matheson continued to maintain that he didn’t know or recall the events in question. The Crown brought an application under s. 9(2) of the CEA. After employing the “Milgaard” procedure, as approved of in R v. McInroy, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588, being met, the Crown was permitted to cross-examine Matheson on both his guilty plea, the ASF and the preliminary inquiry transcripts.
[8] The Crown cross-examined Matheson, who continued to maintain that significant and large portions of the sworn ASF were incorrect or that he did not recall any of the relevant events. Matheson provided various excuses, in effect that he agreed to and swore the ASF and pled guilty in order to get the case over with. Matheson refused to adopt a significant segment of the sworn ASF as being accurate or more specifically, did not recall much of his prior agreement to the facts or other statements as they related to the majority of the information in the ASF.
Positions of the Parties:
[9] The Crown applies for the introduction of the witness’ ASF and guilty plea proceedings, subject to the appropriate redactions. The Crown does not seek to introduce Matheson’s statements to police or his evidence at the preliminary inquiry in this Application.
[10] The Crown says that Matheson provided input and later agreed to all of the facts that were read in at the time of his guilty pleas without reservation or qualification. Matheson, under oath, took no issue whatsoever with regards to any or all of the other background details at the time of their pleas.
[11] The Crown submits that procedural reliability has been made out by virtue of the circumstances described in the transcripts. As such, the Crown says that it does not need to rely on substantive reliability to support its position.
[12] Mr. Shime on behalf of King opposes the KGB application and the Crown’s ability to use the ASF for its substantive use at this trial. Mr. Shime does not concede necessity and substantive or procedural reliability and submits that the Crown has not established threshold reliability. Matheson had a motive to lie, and the timing of the ASF follows two statements to the police, one of which was induced.
[13] Mr. Shime submits that the witness’ inability to recall does not open the door to the Crown’s application. Further. Although there is no suggestion of a quid pro quo, per se, Mr. Shime submits that the statement does not meet substantial or procedural reliability for its admission.
Legal Principles:
[14] The leading authority for the admissibility of these type of statements for their substantive nature is found in the seminal cases from the Supreme Court of Canada in R. v. B. (K.G.) and R. v. Khelawon, [2006] 2 S.C.R. 865.
[15] The Crown must satisfy me as to the threshold reliability of the statements to be admitted on a balance of probabilities.
[16] In this case, I also considered the cases of R. v. Youvarajah, 2013 SCC 41, [2013] S.C.J. No. 41 and R. v. Kanagalingam, 2014 ONCA 727, [2014] O.J. No. 4946 (C.A.), for the principles and procedures in the introduction of a statement or ASF based on a guilty plea of another for its substantive use at a subsequent trial.
[17] Under the principled approach, admissibility is done on a more flexible basis than the old rigid traditional admissibility rules. The trial judge's role with this approach is as a gatekeeper. The rules must be applied with some flexibility and each case must be considered on its own merits: R. v. U (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764. The principled approach permits trial judges to admit hearsay evidence if it meets the twin threshold requirements of (a) necessity and (b) reliability.
[18] Where a witness recants from a prior statement, necessity is established: Youvarajah at para. 22 and Khelawon at para. 78.
[19] In this application, I must consider admission of the transcripts based on threshold reliability. I am cognizant that even if necessity and reliability of the hearsay evidence is proven, the trial judge maintains discretion to exclude the evidence where the "prejudicial effect is out of proportion to its "probative value": Youvarajah at para. 23, Khelawon, at para. 3;
[20] Once the statement is admitted, the decision as to ultimate reliability is with the jury: Youvarajah at para. 23, Khelawon at para. 2. Provided the threshold criteria of necessity and reliability are established, on an exceptional basis, a prior inconsistent statement is admissible for the truth of its contents: Youvarajah at para. 27. As gatekeeper, I am not to weigh the ultimate reliability, truthfulness or credibility of the statement or intrude upon the jury’s role as the trier of fact.
[21] As mentioned, there are two ways of satisfying threshold reliability. Procedural reliability asks whether there is a sufficient basis on which to assess the hearsay statements truth and accuracy, using substitutes for the typical adversarial process (the "KGB" procedure). Substantive reliability looks at circumstances in which the statement was made in order to provide guarantees that the statement is reliable or trustworthy: Kanalalingam, at para 31.
Discussion:
[22] I have adopted the principles flowing from Youvarajah and further explained in Kanagalingam at paras. 31-34, 43-47. In my view, procedural reliability is established.
[23] The fact pattern here is very similar to the situation in Kanagalingam where the witnesses pled guilty based on an ASF prepared by their lawyer in consultation with the Crown attorney.
[24] I also observe that the circumstances in this case are also similar to that found in the case of R. v. Bashamakh, [2015] ONSC 1631, where my colleague Skarica J., had occasion to thoroughly review and apply the relevant legal principles. I adopt and apply the principles in the case found at paras. 13, 14 and 15.
[25] On the evidence adduced at the voir dire, the following indicators of procedural reliability have been established: The ASF was sworn to by Matheson at his respective guilty plea proceedings and were given or acknowledged by him under oath. The ASF was signed, sworn to during courtroom proceedings which was recorded by the court reporter in its entirety and produced during the course of the plea. Matheson was ably represented by counsel at the guilty plea proceedings, who confirmed with Matheson that the ASF was correct. There was a full 606.1 inquiry and the judge also made inquiries of Matheson to ensure that he fully and voluntarily accepted the ASF in support of his plea.
[26] At a minimum, Matheson’s counsel, Ms. Goldlist - a well-regarded and experienced criminal lawyer - read or discussed the ASF to Matheson prior to his respective guilty plea, or at least, I am satisfied that Matheson spoke with counsel about what should go into the ASF before it was finalized. Matheson fully understood what was in the ASF and he knew he could change the content if he wished and finally he was aware he could choose to continue to plead not guilty.
[27] During the guilty plea proceedings, the complete ASF was read to Matheson and subsequently adopted by him while he was under oath. He admitted that the entire ASF was correct. Matheson signed the ASF and it was entered as an exhibit during his guilty plea proceedings.
[28] No witness has raised any claim with respect to solicitor-client privilege. I do not have any evidence that Matheson was coerced or otherwise induced to plead guilty or refute any segments of the ASF.
[29] Defence Counsel has a full opportunity to cross-examine Matheson on his testimony and the transcripts, including the ASF, at trial before the jury.
[30] While I do not have to go down this road, for the sake of completeness, I am satisfied that the threshold reliability requirement can be met by showing that there is no real concern about whether Matheson was telling the truth in his sworn ASF. The striking similarities between the sworn ASF, his evidence at the preliminary inquiry and the rest of the evidence in this trial are so compelling that the only likely explanation is that the sworn ASF represents the truth. Matheson has demonstrated that he is either lying or chooses not to recall the facts for personal or other expressed or implied motivations. In the interest of truth, the high reliability of the sworn ASF renders its substantive admission.
[31] I am also persuaded that the probative value of the guilty plea transcript is outweighed by any prejudicial effect. Thus, both necessity and threshold reliability have been established. The proceedings at Matheson’s guilty plea can be entered for the truth of its contents.
[32] The Crown agrees that the full multi-page ASF and the guilty plea proceedings not be entered in their entirety.
[33] Thus, while I have admitted the ASF into evidence for its substantive use by the jury, in accordance with the general principles of admissibility, the transcript is to be edited to reflect what the particular witness knew, saw or heard, or what he could reasonably know, see or hear at the relevant time. Matters beyond the witness’ personal knowledge, background information or Crown theory of the case will not be admitted. In my view, this balancing process permits proper cross-examination of the witness by all counsel and avoids inadmissible hearsay. The parties agreed that they would do so prior to entering the transcript of Matheson’s guilty plea as an exhibit.
Conclusion:
[34] For all of the brief aforementioned reasons, the Crown’s application is granted. The portions of the ASF contained within Matheson’s guilty plea transcripts are being tendered for its substantive nature; for the truth of its contents. It can be used not only to test the credibility of the particular witness, but can be used by the jury for the truth of its contents in weighing all of the evidence adduced at trial.
A.J. GOODMAN, J.
Released: November 14, 2019
COURT FILE NO.: CR 18-233
DATE: 2019-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DALE KING
RULING ON APPLICATION TO ADMIT EVIDENCE FOR SUBSTANTIVE USE BY JURY- KGB APPLICATION
A. J. GOODMAN, J.
Released: November 14, 2019