Court File and Parties

COURT FILE NO.: CR 11-3244 DATE: 2020/07/13 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown M. Dean and S. O’Brien on behalf of the Crown/Respondent

- and -

JEREMY HALL Accused D. Derstine and R. Gregor for the Accused/Applicant

HEARD: March 2 and 3, 2020

A.J. Goodman J.:

RULING ON DEFENCE APPLICATION TO ADMIT TRACEY FRIESZ’ STATEMENT FOR SUBSTANTIVE USE - KGB APPLICATION

[1] The accused, Jeremy Hall (“Hall”), is charged with the first degree murder of Billy Mason (“Mason”). During the trial, the defence sought to introduce the statements provided by Tracey Friesz (“Friesz”) to the police on March 30, 2006 and September 26, 2006 in relation to her knowledge in the matter before this Court.

[2] This application is often referred to as a “KGB application”, (R. v. B. (K.G.), [1993] 1 S.C.R. 740). [1]

Background:

[3] Friesz approached the police and provided two statements. For the purposes of this application, Friesz claimed that approximately two weeks prior to March 30, 2006, Mason had called her. No substantial details of the conversation were provided. Apparently, Mason knew her then-boyfriend, Jason McGeary (“McGeary”), also known as “Spaghetti”.

[4] In her second statement, Friesz went on to explain that she dislikes McGeary and that he was in jail at the time of Mason’s call. McGeary had nothing to do with the Mason incident. Friesz advised that she spoke with Mason along with Sean Gardiner (“Gardiner”). Friesz disagreed with the assertion that Gardiner claimed the phone call actually preceded Mason’s disappearance.

Positions of the Parties:

[5] The defence applies for the introduction of the witness’ two statements for the truth of their contents at trial.

[6] The defence says that Friesz’ statements were fully video and audio recorded and there are other hallmarks of reliability warranting its admission.

[7] While the statement was not taken under oath, some of the consequences of providing a false or misleading statement were spelled out to the witness by the interviewer at the conclusion of the first statement.

[8] The defence submits that procedural reliability has been made out by virtue of the procedures enlisted when the statements were made and the circumstances in which the statements came to be, as described by the various witnesses and in course of the giving of the statement itself. The statements are relevant because Friesz expressed certainty that she spoke to Mason after the date the Crown alleges he was killed. Friesz had no motive to lie or fabricate and had no relationship with the accused.

[9] Further, based on the entirety of the circumstances, the defence submits that substantive reliability has also been made out. Substantive indicia of reliability have been established to demonstrate that both statements are inherently trustworthy and admissible.

[10] The Crown opposes the introduction of the witness’ two statements for their substantive use at this trial. While necessity is conceded, the procedural reliability is wanting and the defence has not come anywhere near establishing threshold reliability.

[11] The Crown responds that the indicia for substantive reliability is nonexistent. Substantive reliability is not established as the witness’ statements and the surrounding circumstances of the statements are entirely devoid of merit. As McGeary was a potential suspect at the relevant time, the witness was motivated to protect the interests and potential culpability for her (then) boyfriend. The witness had vague details and fabricated her version to protect him. There is no absolutely no other corroborative evidence to support the witness’ assertions that Mason was alive after February 2006.

Legal Principles:

[12] Hearsay is presumptively inadmissible but can be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

[13] The jurisprudence addressing the routes to admissibility of witness’ statement on the legal basis of threshold reliability can be found in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, statements under oath, warning and video: R. v. K.G.B., and statements confirmed by other independent evidence: R. v. U.(F.J.), [1995] 3 S.C.R. 764. These routes have also been labeled as procedural reliability and substantive reliability. Another leading authority for the admissibility of these type of statements for their substantive nature is found in the Supreme Court of Canada’s decision in R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57.

[14] Under the principled approach to hearsay, reliability is about finding sufficient indicia of reliability to give the trier of fact a satisfactory basis for evaluating the out-of-court statement’s truth. Reliability for the purpose of an application to admit an out-of-court statement is focused on threshold reliability only. Ultimate reliability is for the trier-of-fact at the end of the trial. Nonetheless, all relevant factors should be considered when determining threshold reliability. As the court in Khelawon noted at para. 76:

The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination.

[15] Under this approach, admissibility is done on a more flexible basis than the rigid, traditional admissibility rules. The trial judge's role is that of gatekeeper. The rules must be applied with some flexibility, especially when the evidence is being proffered by the defence: R. v. Seaboyer, [1991] 2 S.C.R. 577. Each case must be considered on its own merits: R. v. U (F.J.), [1995] 3 S.C.R. 764.

[16] At this stage, I play a limited role on this voir dire. I am exercising only an evidentiary gatekeeping function. As Watt J.A. noted in R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 70:

It is for the trial judge to determine whether the proponent of the evidence has established threshold reliability. Where the evidence is admitted, it is for the jury to determine how much or little they will believe of it and rely upon it in reaching their conclusion about the adequacy of the case for the Crown.

[17] It has long been established that threshold reliability may be satisfied if there are adequate substitutes for testing the truth and accuracy of a statement (procedural reliability) or sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). The two approaches of procedural and substantive reliability may work in tandem and are not mutually exclusive.

[18] The Supreme Court of Canada in R. v. Bradshaw, [2017] 1 S.C.R. 865, 2017 SCC 35, provided the test for the admission of hearsay statements by means of establishing substantive reliability:

A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, [2008] 2 S.C.R. 298, 2008 SCC 37, at para. 55).

[19] 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. 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 skeptical caution would look upon it as trustworthy": Khelawon, at para. 62; 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.

[20] The reliability requirement is usually met in two different ways, neither of which excludes consideration of the other: Khelawon, at paras. 61-63. One way is for the party to demonstrate that no real concern arises from the fact that the statement is offered in hearsay form because its truth and accuracy can nevertheless be sufficiently tested. In other words, there is a presence of adequate substitutes for testing truth and accuracy. These substitutes have traditionally included; a video recording of the statement, the administration of an oath, and warnings about the consequences of lying.

[21] If the trial judge concludes that threshold reliability depends on the inherent trustworthiness of the statement, an inquiry must be made into those factors tending to show that the statement is true. In R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, Watt J.A. set a list of non-exhaustive factors that judges may look to in this "content based assessment", at para. 54:

The proponent of a hearsay statement who attempts to satisfy the reliability requirement on the basis of the circumstances in which the statement was made does not have the luxury of scrolling down a fixed and exhaustive list of factors. Relevant circumstances include, but are not limited to:

• the timing of the statement in relation to the event reported;
• the absence of a motive to lie on the part of the declarant;
• the presence or absence of leading questions or other forms of prompting;
• the nature of the event reported;
• the likelihood of the declarant's knowledge of the event, apart from its occurrence; and
• confirmation of the event reported by physical evidence.

[22] It has been well-established that where the declarant is available for cross-examination, the admissibility inquiry is less focused on the question of whether there is reason to believe the statement is true, than it is on the question of whether the trier of fact will be in a position to rationally evaluate the evidence. The trial judge looks for adequate substitutes for the process that would have been available if the evidence had been presented in the traditional form, in court in the presence of the trier of fact, under oath or affirmation, and subject to contemporaneous cross-examination.

[23] Bradshaw, at para. 40, draws the distinction between indicia going to procedural versus substantive reliability in the following way:

[W]here procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant's truthfulness or accuracy.

[24] Briefly, substantive reliability can be met if it is established that the statement is inherently trustworthy. Substantive indicia of reliability have traditionally included consideration of factors such as:

a. the spontaneity and timing of the statement; b. the presence or absence of a motive to lie; c. the striking similarity between the statements of two witnesses; d. awareness of the consequences of lying and the importance of telling the truth; e. mental capacity of the declarant; f. inducements made to the declarant; and g. the presence of any corroborating evidence.

[25] Importantly, in Bradshaw the Supreme Court recast the approach a jurist should take to his or her consideration of corroborative evidence when using it to support a finding of threshold reliability. The Court held that a trial judge should rely on corroborative evidence to establish threshold reliability only if it shows – in the context and circumstances of the case as a whole – “that the only likely explanation for the hearsay is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”.

[26] The court in Bradshaw, at para. 57 recommended a guideline a jurist should follow when tasked with assessing whether the corroborative evidence in question can meaningfully be considered to support a statement’s substantive reliability:

1. Identify the material aspects of the hearsay statement that are tendered for their truth.
2. Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.
3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.
4. 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.

[27] There is no bright-line rule delineating the type of corroborative evidence that will establish substantive reliability. Even if necessity and reliability of the hearsay evidence is proven, a trial judge maintains discretion to exclude the evidence where the "prejudicial effect is out of proportion to its "probative value": R. v. Youvarajah, [2013] 2 S.C.R. 720, 2013 SCC 41 at para. 23, Khelawon, at para. 3.

Analysis:

[28] In this application, I am cognizant that, as gatekeeper, I am not to weigh the ultimate reliability, truthfulness or credibility of the statement or intrude upon my role as the trier of fact.

[29] Necessity is conceded as Friesz is now deceased.

[30] 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.

[31] On the evidence adduced during the voir dire, in my view, procedural reliability has not been established. Both statements taken on the two dates in question were not sworn to by the witness and not acknowledged by her under oath or affirmation. While the statements were video recorded and the quality is good, the witness was not effectively warned about the consequences of providing false or misleading information. In my opinion, the comments made by the investigating officer towards the conclusion of the first statement are mere commentary and do not serve to drive the message home to the witness as to the consequences of providing a misleading or false statement.

[32] The Crown will not have any opportunity to meaningfully cross-examine the witness on her statements. Based on the appellate jurisprudence, and as mentioned in the companion ruling, (R. v. Hall, 2020 ONSC 2188), this goes a long way in satisfying threshold reliability.

[33] Some form of cross-examination of the declarant such as cross-examination of a recanting witness at trial or cross-examination from a preliminary inquiry will usually be considered in this segment of the analysis to meet threshold reliability. In Bradshaw, the court found that the specific hearsay danger raised in that case was the inability of the trier of fact to assess whether the witness lied about Bradshaw’s participation in the murders because he refused to be sworn. The court stated at para. 87, “Most importantly, he was not available to be cross-examined at trial. The trier of fact evidently did not possess a sufficient substitute for testing the evidence in the absence of cross-examination.” (emphasis added.) In other words, Bradshaw therefore was akin to Khan, not to KGB.

[34] The concern flagged in Bradshaw arises in the case at bar because the hearsay declarant is unavailable for cross-examination and her motive to fabricate cannot be fully explored by the Crown through cross-examination.

[35] I have already identified the material aspects of the hearsay statement that are tendered for their truth and the specific hearsay dangers raised in the particular circumstances of this case. Clearly the only real evidence to be provided is the assertion that having had a phone conversation with Mason, he was still alive in March 2006. Thus, he could not have been murdered on February 26, 2006 as alleged by the Crown.

[36] Based on the circumstances and these dangers, I must consider alternative, even speculative, explanations for the statement. While Friesz is a disinterested party to this murder litigation, she was motivated at the time to protect her then boyfriend who was under scrutiny by the police for the Mason investigation. [2] McGeary was in jail from February 22 to March 2006. Friesz claimed that she knew Mason but that she was concerned about McGeary and declared on more than one occasion that McGeary had nothing to do with the Mason disappearance. Based on my review, I am satisfied that the declarant had a motive to lie and to protect McGeary.

[37] The witness also has a history for deceit. Friesz had 32 criminal convictions between 1991 and 2007. Her criminal record is replete with crimes of dishonesty.

[38] Moreover, when Friesz was confronted by the interviewer with information about another witness’ differing version of the very same phone call Friesz alleged occurred with Mason. While not denying the assertion raised by the interviewer, Friesz was dismissive of that assertion, again with limited details. Overall, she was vague with any of the relevant details she provided to police.

[39] Finally, I need to 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.

[40] I have considered the specific hearsay dangers raised by the statements, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence is sufficient to substantively satisfy threshold reliability. In this case, I find that the hearsay dangers relate to the declarant's sincerity, motivation or honesty, and thus truthfulness is at issue.

[41] There is no corroborative evidence whatsoever either in the voir dire or trial to substantiate the truthfulness of the statement or the credibility of the statement maker. In fact, quite the contrary. The evidence is overwhelming positioned to advance the position that Mason disappeared and was killed in late February 2006 and could not have been alive to make any phone calls with the witness on or about March 15, 2006. I am satisfied that there is absolutely no other cogent or independent evidence for the suggestion that Mason was alive after February 26, 2006 and thus there is no real possibility that the statement can be true.

[42] I observe that the cases proffered by the defence in support of the threshold admissibility of Friesz’ statements are distinguishable. Unlike the case of R. v. Trotman, 2019 ONCJ 528, [2019] O.J. No. 3904, and R. v. Hankey, 2008 ONSC 6400, [2008] O.J. No. 4590 (S.C.), Friesz’ impugned hearsay statements were not provided at the scene of the crime or in a timely manner proximate to the event in question. The witness provided the statements to police weeks and months after Mason was reported missing in the media.

[43] While fully recognizing that the statements are sought to be introduced at trial by the defence, I also find that the probative value of the statements are substantially outweighed by any prejudicial effect. On a limited weighing of the evidence, the witness’ nebulous details and bald assertions in her statements are a distraction. Further, its effect as a vague, unsubstantiated outlier do not advance the issues in this trial.

Conclusion:

[44] The defence KGB application is denied. Friesz’ statements to the police are inadmissible at trial.

A.J. GOODMAN, J. Released: July 13, 2020

Footnotes:

[1] The rendering of this ruling to the parties was delayed due to the COVID-19 pandemic, which caused the temporary suspension of all court proceedings by order of the Chief Justice of the Superior Court.

[2] Subsequently, I am informed by the Crown that McGeary was in custody from February 22 to March 17, 2006.