Court File and Parties

COURT FILE NO.: CR-17-10000813-0000 DATE: 20200203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SANJAY FRANCIS

Counsel: David Mitchell and Mihael Cole, for the Crown/Applicant Paul Lewandowski, for the Defendant/Respondent

HEARD: November 12-14, 2019

Justice J. Copeland

REASONS FOR DECISION ON PRE-TRIAL APPLICATIONS

Introduction

[1] Sanjay Francis is charged with failing to comply with the terms of a long term supervision order, contrary to s. 753.3(1) of the Criminal Code, failing to comply with a probation order, contrary to s. 733.1(1) of the Criminal Code, and criminal harassment, contrary to s. 264(2)(b) of the Criminal Code.

[2] The backdrop to the charges is that Mr. Francis was designated a dangerous offender in 2017. At that time, he was given a determinate sentence, and a 10-year long term supervision order (“LTSO”), for abuse and harassment of domestic partners. At the time of the offences alleged in this case, he was subject to various conditions under the LTSO. He was also on probation at the time, due to another set of offences.

[3] When Mr. Francis was released from custody, he was required to live at a halfway house as a condition of the LTSO. Another term of the LTSO was that Mr. Francis was prohibited from having any communication, directly or indirectly, with a number of people, including Ms Nikki Landrio, a former domestic partner of Mr. Francis.

[4] All three counts relate to the same alleged conduct, which is an allegation that Mr. Francis asked Justin Struthers, who at the time was a co-resident of a halfway house with Mr. Francis, to send electronic communications (a Facebook message) to James Bekier, the employer of Ms Landrio, with the intention of indirectly communicating with Ms Landrio, both in breach of the LTSO and the probation order, and with the intention to harass her.

[5] As it has some relevance to all of the applications, I set out the content of the Facebook message sent by Mr. Struthers. The message indicated it was sent by “Justin Struthers”. The body of the message was as follows:

Sanjayfrancis77@hotmail.com 647-839-7345 I don’t know you, I just received a message to relay this information to you. Hopefully it’s useful.

[6] Mr. Francis has elected trial by jury. The Prosecution and Defence have agreed to sever the two breach charges, proceed with the criminal harassment trial by jury first, and then have the evidence from the trial apply to the two breach charges, to be adjudicated by the trial judge.

[7] The trial is scheduled to commence March 16, 2020. The Prosecution brings three pre-trial applications: (i) a similar fact/prior discreditable conduct application relating to two areas of conduct – Mr. Francis’ past conduct towards Ms Landrio, and Mr. Francis’ conduct towards a different woman, Felicia MacLean, also a former domestic partner of Mr. Francis (and the complainant in the index offences that led to Mr. Francis being designated a dangerous offender); (ii) an application to allow Ms Landrio and Mr. Bekier, who both live in the United States, to testify by video link, pursuant to s. 714.2 of the Criminal Code; and (iii) an application to admit hearsay evidence as necessary and reliable. The last application relates to the videotaped statement that Mr. Struthers gave to police on August 9, 2017. Some time after giving the statement, Mr. Struthers died.

[8] Mr. Francis does not contest the portion of the prior discreditable conduct application that involves his past conduct towards Ms Landrio, but opposes the portion that relates to conduct towards Ms MacLean. Mr. Francis also opposes the application under s. 714.2, and the hearsay application.

Prior discreditable conduct evidence application

[9] The Prosecution seeks to lead two bodies of evidence of Mr. Francis’ prior discreditable conduct. The first body of evidence concerns Mr. Francis’ prior conduct towards Ms Landrio, both during the time they were domestic partners, and afterwards (and during breaks in the relationship). The evidence, in summary form, relates to a history of acts of domestic abuse, threats, and harassment. I will not summarize the evidence in detail. It is essentially the same body of evidence that Ms Landrio gave in the prior dangerous offender proceedings, where she was called as a witness during the sentencing hearing (the index offences did not relate to Ms Landrio): Reasons for Judgment of Justice Blouin, R. v. Francis, 2017 ONCJ 313 at paras. 15, and 23-28 (because I refer to another court decision involving Mr. Francis in these reasons, I will refer to this proceeding as the “dangerous offender proceedings” in subsequent references in this judgment).

[10] The second body of evidence concerns Mr. Francis’ prior conduct towards Ms MacLean, both during the time they were domestic partners, and afterwards (and during breaks in the relationship). The evidence, in summary form, relates to a history of acts of domestic abuse, threats, and harassment. I will not summarize the evidence in detail. It is essentially the same body of evidence that was the subject of the previous dangerous offender proceedings (where the index offences related to Ms MacLean), and a related previous trial in this court also involving Ms MacLean and her children: Reasons for Judgment in the dangerous offender proceedings; Reasons for Judgment of Justice Akhtar, R. v. Francis, 2017 ONSC 1505.

[11] I note that the Prosecution seeks to tender evidence of Mr. Francis’ prior conduct towards Ms MacLean in two forms. The first form is via either admitted facts from the dangerous offender proceedings and findings of fact from the trial in this court in 2017 (in the hearing of this application, the Prosecution indicated that it did not intend to call evidence from Ms MacLean viva voce). The second form is through Ms Landrio, on the basis that Ms Landrio’s knowledge or belief about Mr. Francis’ abusive behaviour towards another domestic partner is relevant to Ms Landrio’s state of mind in relation to indirectly receiving the Facebook message.

[12] The Prosecution position is that the evidence of Mr. Francis’ prior conduct towards Ms Landrio is relevant to proving several elements of the offence of criminal harassment, in particular, “that [Mr. Francis] knew, was reckless or was willfully blind to whether his conduct would harass the complainant”, and “whether Ms Landrio reasonably feared for her safety as a result of the communication”. The Prosecution will argue at trial that that the Facebook message, taken in the context of the past pattern of domestic violence and threats, constitutes criminal harassment. The Prosecution submits that Ms Landrio’s evidence of the past history of Mr. Francis’ domestic abuse and harassment of her is necessary context to understand the harassing nature of the communication, and why Ms Landrio reasonably felt fear as a result of the communication. In the absence of this context, the Facebook message may appear innocuous.

[13] With respect to the evidence about Mr. Francis’ prior conduct towards Ms MacLean, the Prosecution submits that Mr. Francis’ conduct towards Ms MacLean was “strikingly similar” to his conduct towards Ms Landrio. The Prosecution argues that that Mr. Francis has a “history of obsessive and uninterrupted harassment of his domestic partners”, and as such there is an “improbability of coincidence” that someone other than Mr. Francis is the author of the Facebook message to Ms Landrio (i.e., it is improbable that Mr. Struthers sent the message without instigation from Mr. Francis).

[14] The Defence does not contest that the evidence of Mr. Francis’ prior conduct towards Ms Landrio is relevant to issues at trial, and is sufficiently probative that its probative value outweighs its prejudicial effect. Counsel for Mr. Francis stated during the hearing of this application that it is his intention at trial to cross-examine Ms Landrio about various issues in her past relationship with Mr. Francis, including times she reached out to engage in communication with him. Counsel also conceded that Ms. Landrio’s evidence about Mr. Francis’ past conduct is directly probative of some elements of charge of criminal harassment, including whether she (subjectively) feared for her safety as a result of the Facebook message, and whether her fear was reasonable in all of the circumstances.

[15] I want to make one point clear about the Defence position not to contest the admissibility of Ms Landrio’s evidence about Mr. Francis’ past conduct towards her and the nature of their relationship. The Defence takes this position on the basis that the evidence will be tendered through viva voce evidence of Ms Landrio (whether in person or by video, subject to my ruling on the s. 714.2 issue), and will be subject to cross-examination in the usual course during the trial (because the defence does not admit that Ms Landrio’s evidence is true). But the Defence does not agree to the past history of the relationship with Ms Landrio being admitted based on findings of fact made by Justice Blouin in the previous dangerous offender proceedings. The Prosecution indicated during the hearing of the application that they are content with this, and that the Prosecution does not seek to have this body of evidence admitted based on findings of fact made in the dangerous offender proceedings.

[16] However, the Defence opposes the admission of the evidence of Mr. Francis’ past conduct towards Ms MacLean (whether tendered through evidence of Ms MacLean, or whether tendered through evidence of Ms Landrio about her knowledge or belief about Mr. Francis’ conduct towards Ms MacLean). The Defence submits that evidence about Mr. Francis’ conduct towards Ms MacLean, whether tendered through Ms MacLean or though Ms Landrio, is thinly disguised bad character evidence. It has little or no probative value. Any probative value it does have is highly character-based. Further, in light of the Defence not contesting the admissibility of the evidence of the past relationship and conduct of Mr. Francis towards Ms Landrio, the Prosecution will be able to lead substantial evidence that Mr. Francis has a history of being abusive, threating, and harassing to Ms Landrio, as it relates to whether he is the author (instigator) of the Facebook message indirectly communicated to Ms Landrio. In sum, the position of the Defence is that evidence of Mr. Francis’ past conduct towards Ms MacLean has little or no probative value, and what little probative value it has is significantly outweighed by its highly prejudicial effect.

[17] For reasons I explain below, I grant the Prosecution’s application in relation to the evidence of Mr. Francis’ prior conduct towards Ms Landrio. I dismiss the Prosecution’s application in relation to Mr. Francis’ prior conduct towards Ms MacLean.

[18] The Prosecution characterizes the first body of evidence of prior conduct towards Ms Landrio as “contextual narrative” evidence, and the second body of evidence of conduct towards Ms MacLean as “similar fact” evidence. Although there is case law in the context of prosecutions for domestic violence which focuses the prior discreditable conduct analysis to that context, ultimately, both bodies of evidence involve evidence of prior discreditable conduct. The law applicable to both bodies of evidence is the law in relation to admission of prior discreditable conduct as set out in R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, and related decisions.

[19] In Handy, the Supreme Court set out the framework for analyzing when similar fact evidence should be admitted. The starting point is that similar fact evidence is presumptively inadmissible, because it is evidence of discreditable conduct of a defendant which relates to an event other than the particular count at issue. Similar fact evidence may be admitted if the prosecution demonstrates on a balance of probabilities that in the context of a particular case, the evidence is relevant and material, and that its probative value in relation to a particular issue outweighs its potential prejudicial effect.

[20] The probative value and potential prejudicial effect of similar fact evidence is assessed by reference to the following factors set out in Handy:

• (i) the strength of the evidence (is it capable of belief? Are there concerns about collusion?);
• (ii) the live issue at trial to which the evidence relates;
• (iii) the similarity of the evidence and the extent to which the evidence tends to prove the proposition being asserted;
• (iv) if the evidence is capable of supporting the inferences for which the prosecution seeks to tender it, potential prejudice to the defendant must be assessed.

[21] The prejudicial effect side of the balance considers the risk of propensity reasoning, in particular the risk that it may lead a trier of fact to convict based on reasoning that the defendant is of bad character (moral prejudice), the risk that the similar fact evidence will confuse issues or unduly lengthen the trial, or the risk that the defendant may for some reason be unable to respond to the similar fact evidence (particularly if it is off-Indictment similar fact, and thus widens the issues at trial).

Evidence of Mr. Francis’ prior conduct towards Ms Landrio

[22] I will address the evidence of Mr. Francis’ prior conduct towards Ms Landrio and the nature of their prior relationship briefly, since the Defence did not contest its admissibility.

[23] In my view the Defence decision not to contest the admissibility of this evidence is well-founded. This evidence has significant probative value on several elements of the criminal harassment charge. The significant probative value outweighs the prejudicial effect. Further, in my view the risk of prejudicial effect can be adequately addressed by a jury instruction on the permitted and prohibited uses of this evidence.

[24] As noted above, Ms Landrio’s evidence of Mr. Francis’ past conduct towards her involves a long history of abusive and harassing behaviour, both during their relationship, and after the relationship (and during breaks in the relationship).

[25] I find that this evidence is significantly probative of the three elements of the criminal harassment count that relate to Ms Landrio’s state of mind as a result of the communication: (i) whether Ms Landrio was harassed by the sending of the Facebook message; (ii) whether Ms Landrio feared for her safety as a result of the sending of the Facebook message; and (iii) whether Ms Landrio’s fear as a result of the sending of the Facebook message was reasonable in all of the circumstances: R. v. Orton, 2019 ONCA 334 at para. 126.

[26] I find that Ms Landrio’s evidence about the nature of the prior relationship with Mr. Francis is essential for the jury to assess, in the context of all of the evidence, both the credibility of Ms Landrio’s evidence as it relates to these elements of the offence, and whether or not, in the context of all of the evidence, they are satisfied beyond a reasonable doubt that these elements are proven at the end of the trial.

[27] In my view, given the content of the Facebook message at issue (a single message, containing only contact information for Mr. Francis), it would be very difficult, indeed maybe impossible, for a jury to understand why Ms Landrio would feel harassed and fear for her safety, and why her fear would be reasonable, without knowing about the past history (according to Ms Landrio) of domestic abuse: R. v. Krushel, 2000 ONCA 3780 at para. 26 (ONCA); R. v. S.B., [1996] O.J. No. 1187 (Gen. Div); R. v. D.S.F., 1999 ONCA 3704. I note as well, that given that this case is about the sending of one Facebook message, and the Defence has made clear that it intends to challenge Ms Landrio’s asserted fear, these are very live issues in this trial.

[28] Ms Landrio’s evidence of Mr. Francis’ prior conduct towards her is also relevant to the element of criminal harassment of whether, if the trier of fact finds that Mr. Francis’ instigated the sending of the message, he knew or was reckless or willfully blind to whether Ms Landrio would be harassed by it: Orton at para. 126. If the trier of fact believes Ms. Landrio’s evidence about the past conduct, it provides a basis to infer that Mr. Francis knew or was reckless or willfully blind to the effect the message would have on Ms Landrio.

[29] There is no suggestion of collusion, or anything else that would weaken the probative value of this evidence. It will, of course, be up to the trier of fact to assess the credibility of Ms Landrio’s evidence of past abuse. But in my view, the evidence has significant probative value in relation to these four elements of the criminal harassment charge.

[30] Given how closely linked the alleged past history of abuse is to the issues in the criminal harassment count about whether the single message would have caused Ms Landrio to feel harassed, cause her fear, and whether such fear was reasonable, I find that the probative value of the evidence outweighs its prejudicial effect. Ms Landrio’s evidence about the history of the relationship will not unduly lengthen the trial. Ms Landrio’s evidence will be somewhat longer than if she were not permitted to testify about the past history. But her evidence on these issues at the dangerous offender hearing was completed in less than one day (I cannot tell the exact time from the transcript, but other witnesses were heard on the same date). And this evidence does not necessitate calling additional witnesses.

[31] In my view, the risk of prejudicial effect from this evidence can be addressed by the trial judge’s instructions to the jury. The trial judge will need to consider an appropriate jury instruction on the permitted and prohibited uses the jury may make of the evidence of Mr. Francis’ prior conduct towards Ms. Landrio.

[32] I note that although I am ruling that the Prosecution may tender evidence from Ms Landrio about Mr. Francis’ prior conduct towards her, and their relationship, I want to be clear that the Prosecution may not lead evidence of Ms Landrio’s knowledge that Mr. Francis has been designated a dangerous offender. In my view, evidence of the fact of that designation would be too prejudicial. However, in order for the jury to understand the evidence, and how Mr. Francis and Mr. Struthers knew each other, the Prosecution may lead evidence that they were both residents of a halfway house at the time the message was sent (or whatever the appropriate term to designate the institution). The trial judge can consider what type of final instruction is necessary in relation to this contextual evidence.

Evidence of Mr. Francis’ prior conduct towards Ms MacLean

[33] I find that the evidence the Prosecution seeks to lead regarding Mr. Francis’ prior conduct towards Ms MacLean does not meet the threshold to be admissible. In my view, its probative value is much more limited than the body of evidence of his prior conduct towards Ms Landrio. Further, the probative value is primarily through a character-based reasoning lens that the defendant is the type of person who domestically abuses and harasses his current and former partners, therefore it is more likely he instigated the sending of the email to Ms Landrio. Finally, in my view the proposed evidence of past conduct towards Ms MacLean is significantly more prejudicial than probative. It is prejudicial both in terms of moral prejudice, and in terms of its tendency to unduly lengthen the trial, distract the jury from the main issues in the trial, and unfairly unbalance the trial.

[34] The Prosecution argues that the evidence of Mr. Francis’ prior abusive, threatening, and stalking conduct towards Ms MacLean is probative of two issues in this trial. First, the Prosecution argues it is relevant to and probative of identity – that is, whether Mr. Francis instigated the Facebook message (or whether Mr. Struthers acted on his own). Second, the Prosecution argues that Ms Landrio had knowledge of Mr. Francis’ abusive conduct towards Ms MacLean, and that knowledge on the part of Ms Landrio is relevant to and contributed to her fear when she received the indirect Facebook communication. The Prosecution submits that this is relevant to a number of the elements of criminal harassment.

[35] On the first issue, the Prosecution argues that considering the anticipated evidence of Ms. Landrio about Mr. Francis’ past abusive, threatening, and stalking conduct towards her, and his conduct towards Ms MacLean, the pattern of behaviour is “strikingly similar”, and is probative of Mr. Francis’ identity as the instigator of the indirect Facebook message to Ms Landrio.

[36] In making this argument, the Prosecution relies on a list of nine factors that are argued to be strikingly similar, and support the use of the evidence of the abuse of Ms MacLean as probative of identity: the domestic nature of the offences; physical abuse towards his victims; threats of violence towards the victim; threats of violence towards the victim’s children; stalking-type behaviour; the use of Facebook as a vehicle to perpetuate the stalking behaviour; contact with other family members; that both women changed their names and Mr. Francis was undeterred in his harassment; and criminal harassment before and after police intervention and criminal charges.

[37] I find that evidence of Mr. Francis’ history of abuse towards Ms MacLean has very little probative value in relation to identity (whether he instigated the sending of the Facebook message to Ms Landrio). I further find that what probative value it does have operates very prejudicially through a reasoning process that he is likely to have instigated the sending of the message to Ms Landrio because he is the type of person who stalks and abuses his current and former domestic partners.

[38] Although Mr. Francis’ behaviour can be characterized as at the most serious end of threatening and stalking behaviour of current or former domestic partners, the factors in his behaviour that the Prosecution alleges create striking similarity such that it is probative of identity are, unfortunately, commonplace in domestic violence offences. The only two factors on the Prosecution’s list of purportedly “strikingly similar” features between Mr. Francis’ treatment of Ms. Landrio and of Ms MacLean that could possibly rise above what is commonplace in domestic abuse cases are the use of Facebook as a vehicle to carry out stalking behaviour (which creates a link to the use of Facebook in this case), and the fact that both Ms Landrio and Ms MacLean in the past changed their names in order to try to stop Mr. Francis’ abusive conduct, and Mr. Francis continued his behaviour.

[39] But I find that neither of these factors, even in the context of the other factors, persuades me that there is a strikingly similar pattern of behaviour. Given the prevalence of use of various social media apps in today’s world (and in 2017, when this offence is alleged to have been committed), in my view, these factors do not add up to striking similarity. Regarding Ms Landrio and Ms MacLean changing their names, although it is an indication of their states of mind about the severity of Mr. Francis’ conduct and of his persistence, the fact of changing their names is conduct by Ms Landrio and Ms MacLean, not by Mr. Francis.

[40] I note that I use the term “striking similarity” in this analysis because it is the language the Prosecution used in its factum and oral argument. But I acknowledge that the Supreme Court has cautioned that courts should not get hung up on specific levels of or characterizations of similarity, and has rejected a categorial approach to admissibility of similar fact evidence. The level of similarity required can vary according to the nature of the proposed probative value of the evidence. What matters is assessing the probative value of the evidence to the particular issue in the trial. In my view, evidence of Mr. Francis’ prior conduct towards Ms MacLean has very little probative value in relation to whether he instigated the sending of the Facebook message to Ms Landrio.

[41] Further, what minimal probative value the evidence of Mr. Francis’ abuse of Ms MacLean does have in relation to identity, operates squarely through the reasoning process that “he is the kind of person who threatens, harasses, and stalks women, and this aspect of his character makes it more likely that he arranged for the Facebook message to be sent to Ms Landrio”.

[42] I will address the Prosecution’s second argument about probative value, and then consider prejudicial effect.

[43] The Prosecution’s second asserted relevance of the evidence of Mr. Francis’ past conduct towards Ms MacLean is in relation to Ms Landrio’s state of mind in relation to receiving the indirect Facebook message. As I understand it, the Prosecution anticipates that (if it is ruled admissible), Ms Landrio would give evidence that she had some knowledge of Mr. Francis’ abusive behaviour towards a past domestic partner (Ms MacLean) (this is set out at para. 14 of the Prosecution’s factum on the application).

[44] I accept that this use of the evidence, which is based on Ms Landrio’s knowledge/belief about Mr. Francis having abused Ms MacLean, has some probative value in relation to the issues of Ms Landrio’s fear and whether her fear was reasonable.

[45] But I want to be careful not to overstate its probative value in the context of the whole trial. In light of my ruling that the Prosecution may lead evidence of Mr. Francis’ past conduct towards Ms Landrio and their past relationship, the less connected evidence of Ms Landrio’s knowledge of his abuse of Ms MacLean is of less importance. The evidence of Mr. Francis’ past treatment of Ms Landrio is very probative evidence with respect to the context for Ms Landrio’s state of mind when she received the indirect Facebook message, and whether fear was a reasonable response in all the circumstances. The abuse that Mr. Francis (according to Ms Landrio’s evidence) perpetrated on Ms Landrio herself in the past is the most probative evidence in relation to the effect of the Facebook message on Ms Landrio. Evidence that Ms Landrio knew that Mr. Francis had also abused and threatened a different domestic partner (Ms MacLean) adds to this, but in a secondary way. Further, in my view the probative value is outweighed by the prejudicial effect of the evidence.

[46] I find that evidence of Mr. Francis’ prior conduct towards Ms MacLean, whether given by Ms MacLean as relevant to identity, or given by Ms Landrio as relevant to Ms Landrio’s state of mind, would have significant prejudicial effect if it were admitted in evidence in this trial. I find that the prejudice comes in the form of both moral prejudice, and in the form of unduly lengthening the trial and distracting from the central issues in the trial. And I find that the prejudicial effect of the evidence outweighs its probative value.

[47] In my view the risk of prejudice from propensity reasoning evidence about Mr. Francis’ abusive conduct towards Ms MacLean is very high. Even with a limiting instruction, in my view, the risk is very high that a jury will reason that Mr. Francis is “the type of person” who would commit the offences charged, because of his part history of abusing his domestic partners. Indeed, that risk also exists in relation to the evidence of his past abuse of Ms Landrio, but given the much higher probative value of the evidence of the past history of abuse of Ms Landrio, the probative value outweighs the prejudicial effect for the evidence of past abuse of Ms Landrio. I do not reach the same conclusion for the evidence about Mr. Francis’ past history of abuse of Ms MacLean. In my view, on balance given the limited probative value of the evidence of Mr. Francis’ past abuse of Ms MacLean, this is not a case where the analysis in Handy supports running the significant risk of propensity reasoning that this evidence entails.

[48] I find that there would also be prejudice from admitting evidence of Mr. Francis’ past abusive conduct towards Ms MacLean because it would unduly lengthen the trial, and confuse the issues in the trial. At base, what is at issue in this trial are two things: (i) whether Mr. Francis instigated Mr. Struthers to send the message indirectly to Ms Landrio (or whether there is a reasonable doubt that Mr. Struthers sent the message entirely on his own for some as yet unknown reason); and (ii) whether the various harassment and fear elements of criminal harassment can be proven beyond a reasonable doubt in the context of one Facebook message, given the nature of Mr. Francis’ prior conduct towards and relationship with Ms Landrio. Adding to this trial Ms MacLean, will take time by adding evidence about Mr. Francis’ relationship with Ms MacLean, which has nothing to do directly with the allegations at issue in this trial. This will lengthen the trial. And consideration of issues relating to the nature of Ms MacLean’s relationship with Mr. Francis will distract from the central issues, which relate to who instigated the Facebook message, and its effect on Ms Landrio (including whether that effect was reasonable, and Mr. Francis’ knowledge in relation to its likely effect).

[49] In addition to the slim probative value of this evidence, and its significant prejudicial effect, it is important to look at this issue in the context of the trial as a whole. In light of my ruling above that evidence of Mr. Francis’ past conduct towards and relationship with Ms Landrio is admissible, there is a substantial body of evidence of Mr. Francis’ past abusive, threatening, and harassing conduct that will be admissible in evidence – the evidence that is most probative, because it relates to Ms Landrio, the same person the Facebook message at issue in this case was indirectly sent to. There is some risk of prejudicial effect from the evidence about Mr. Francis’ past conduct towards Ms Landrio, but it is so probative that in my view it is admissible.

[50] The evidence of Mr. Francis’ past abusive conduct towards Ms Landrio, plus other circumstantial evidence from which it is open to the trier of fact to infer that Mr. Francis instigated the sending of the Facebook message, will be before the jury (i.e., evidence that Mr. Francis had a long past history with Ms Landrio; evidence that Mr. Struthers did not know either Mr. Bekier or Ms Landrio; evidence that the content of the Facebook message was Mr. Francis’ phone number and email address). To layer on top of that evidence highly prejudicial evidence about Mr. Francis’ history of abuse to another woman, Ms MacLean, who has nothing to do with the Facebook message at issue in this case, would be unbalanced and highly prejudicial – both in terms of moral prejudice, and in terms of adding length and distraction to the trial process.

[51] I want to be clear that the evidence that I rule is not admissible is the evidence of Ms. MacLean about Mr. Francis’ prior conduct towards her, and also, and evidence from Ms Landrio of what she knew or believed about Mr. Francis’ conduct towards Ms MacLean.

[52] In accordance with these reasons, the application to admit evidence from Ms Landrio about Mr. Francis’ prior conduct towards her and the history of their relationship is granted. The application to admit evidence of Mr. Francis’ prior conduct towards Ms MacLean is dismissed.

[53] Before moving on to the next application, I want to make clear an issue I am not deciding. In the pre-trial notes, there is an indication that if Mr. Francis testifies, he will bring a Corbett application in relation to his criminal record. It is not indicated whether the application would be in relation to all, or only some, of his criminal record. That application is not before me. I am not deciding it. The reason I make this clear is that some of Mr. Francis’ criminal record concerns offences committed in relation to Ms MacLean (including the index offences for the dangerous offender proceeding, and the convictions from the 2017 trial in this court).

[54] It will be for the trial judge to rule on the Corbett application, if one is brought. But I want to be clear that my ruling with respect to admissibility of Mr. Francis’ prior conduct towards Ms MacLean is not determinative of the result of a future Corbett application. It is premature to consider the possible Corbett application, not only because it has not yet been brought, but also because its outcome will likely depend, at least in part, on the nature and extent of the defence challenge to the credibility of the Prosecution witnesses at trial: R. v. Corbett, [1988] 1 S.C.R. 670, 1988 SCC 80, at p. 690 per Dickson C.J.

[55] I note as well that evidence about Mr. Francis’ criminal record which would be admissible under s. 12 of the Canada Evidence Act in relation to credibility in the event that a Corbett application is either not brought, or not granted (or only partially granted), would be much more limited in scope that what the Prosecution sought to have admitted in the similar fact application: Corbett at p. 696-97.

Application to have two witnesses testify by video link, pursuant to s. 714.2 of the Criminal Code

[56] The Prosecution applies to have Ms Landrio and Mr. Bekier testify by video link pursuant to s. 714.2 of the Criminal Code. The defence opposes the application.

[57] For reasons that I explain below, I grant the Prosecution’s application in relation to both Ms Landrio and Mr. Bekier.

[58] It is not in dispute that Ms Landrio and Mr. Bekier reside in the United States.

[59] Mr. Bekier is expected to testify that he is the employer of Ms Landrio, and that he received a Facebook message from a man he did not know (listed as Justin Struthers), with the content set out above at paragraph 5. Mr. Bekier was aware of Ms. Landrio’s prior history with Mr. Francis, so he communicated the message to Ms Landrio.

[60] Ms Landrio is expected to testify that she received information from Mr. Bekier that Mr. Francis was trying to contact her, and that as a result, she feared for her safety as a result of his past violence towards her. In addition, she is expected to testify about this history of her relationship with Mr. Francis and his conduct towards her that I have set out above in relation to the prior discreditable conduct application (i.e., the history of violence and harassment that gave rise to her asserted fear from the indirect communication, and the factual basis the Prosecution will rely on to argue that her fear was reasonable, both of which are elements of the criminal harassment charge).

[61] Turning to the specific application in relation to Ms Landrio and Mr. Bekier, the Prosecution argues that s. 714.2 makes it mandatory for a court to allow a witness who resides outside Canada to testify by video link, unless the opposing party satisfies the court that allowing video link testimony would be contrary to the principles of fundamental justice. The Prosecution argues that it would not be contrary to the principles of fundamental justice to allow Ms Landrio and Mr. Bekier to testify by video link in Mr. Francis’ trial. In particular, the Prosecution relies on the fact that in the dangerous offender proceedings in the Ontario Court of Justice before Justice Blouin, Ms Landrio testified by video link. This was a related matter. The substance of the evidence will be similar. And the evidence supports that Ms Landrio’s testimony by video link in the dangerous offender proceedings worked fine. The Prosecution also submits that the sole issues in dispute in this case are proving that Mr. Francis asked Mr. Struthers to send the Facebook message, and whether Ms Landrio reasonably feared for her safety when she learned of the message, as an element of criminal harassment. The Prosecution argues that the physical presence of these two witnesses is not necessary for the Defence to make full answer and defence in relation to these issues.

[62] The Prosecution also argues that Ms Landrio should be permitted, under s. 714.2, to testify by video link in order to spare her testifying in person “against a man who abused and terrorized her for more than a decade”. The Prosecution also argues that significant costs would be incurred if both witnesses were required to travel to Toronto to testify, for transportation, accommodation, meals, and incidentals.

[63] Counsel for Mr. Francis acknowledges that the law interpreting s. 714.2 generally favours the Prosecution’s position on this motion. He also acknowledges that Ms Landrio had testified by video link in the previous dangerous offender proceedings, and that he was not able to identify any problems with the video link evidence in the dangerous offender proceedings.

[64] However, the Defence argues that in the event one of the witnesses refuses to answer a question or questions, the trial judge would not be able to compel answers using the contempt power. He also argues that because Ms Landrio is an adult, it would not be mandatory, if she testified in Canada, that closed circuit TV would be used in any event (i.e., the applicable provision is s. 486.2(2) of the Criminal Code, which is discretionary, not s. 486.2(1) of the Criminal Code which is mandatory for witnesses under 18 years of age). The Defence contests the Prosecution’s submission that Ms Landrio is too afraid to testify in person. The Defence submits that Ms Landrio is an important witness in this proceeding. The Defence also submits that it is “offensive” that the Prosecution does not want to spend the limited amount of funds necessary to fly these witnesses to Canada to testify in the context of all of the resources going into keeping Mr. Francis in custody pending his trial. The Defence argues that the default position in Canadian courts is in-person viva voce evidence, and that s. 714.2 is for emergencies, or witnesses who are very far away from Canada (i.e., not in the United States).

[65] Section 714.2(1) of the Criminal Code provides as follows:

A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice. [emphasis added]

[66] It is clear from the wording of s. 714.2 that for witnesses who reside outside of Canada [1], the presumption created by Parliament is that these witnesses may testify by video link. Section 714.2 makes allowing witnesses who reside outside Canada to testify by video link mandatory, unless the party opposing the application satisfies the trial judge that allowing testimony by video link would be contrary to the principles of fundamental justice.

[67] That this is the effect of s. 714.2 can be clearly seen by comparing s. 714.2 (which applies to witnesses outside Canada) to s. 714.1 of the Criminal Code (which applies to witnesses in Canada). It is clear that Parliament has made a choice that there is a presumption – it is mandatory – that a trial judge will receive evidence by video link for a witness outside Canada, unless the trial judge is satisfied that allowing video link testimony of the witness would be contrary to the principles of fundamental justice. By contrast, for witnesses in Canada, a trial judge has a structured discretion whether or not to allow a witness to testify by video link (and the party seeking to lead the evidence by video link bears the burden to establish that it is “appropriate” for the witness to give evidence by video link, taking into account the enumerated considerations).

[68] Case law interpreting s. 714.2 [2] supports this interpretation: R. v. Schertzer, 2010 ONSC 6686 at paras. 4, 34-39, 56; R. v. Al-Enzi, 2017 ONSC 304 at paras. 8-11; R. v. Singh, 2015 ONSC 6823 at paras. 51-60; R. v. Zagnajori, 2019 ONSC 2518.

[69] Thus, the starting point under s. 714.2 for a witness outside Canada is that it is mandatory to allow the witness to testify by video link, unless the opposing party satisfies the court that to do so would be contrary to the principles of fundamental justice. I disagree with the submission made on behalf of Mr. Francis that s. 714.2 is limited to emergencies or witnesses who are very far away from Canada. Neither the text of s. 714.2, nor the case law interpreting it, supports this submission.

[70] I find that it would not be contrary to the principles of fundamental justice to allow either Ms Landrio or Mr. Bekier to testify by video link. Case law and judicial experience with the high quality video link technology available today supports the conclusion that nothing is lost in terms of ability to observe the demeanour, facial expressions, vocal intonation, and body language of a witness who testifies by video link as compared to a witness who is present in the courtroom: Al-Enzi at para. 10; Zagnajori at para. 14.

[71] Further, in this case, unlike many cases, in relation to Ms Landrio, we have evidence that video link evidence was used in a related proceeding, covering much of the same evidence, without any problems. Ms Landrio testified by video link in the dangerous offender proceedings in the Ontario Court of Justice in 2017: Reasons for Judgment in the dangerous offender proceedings, at paras. 15, 23-28. The defence in this trial has not filed any evidence that there were any difficulties caused by the use of video link evidence in the dangerous offender proceedings.

[72] Although Ms Landrio’s evidence is central to this trial on the issues of the elements of criminal harassment of her fear, and whether her fear was reasonable, I am not persuaded that the defence will experience any inability to challenge her evidence, cross-examine her, or make full answer and defence, if she testifies by video link.

[73] It is not necessary for me to consider the Prosecution’s argument that Ms Landrio should be permitted to testify under s. 714.2 in order to spare her having to testify in person “against a man who abused and terrorized her for more than a decade”. If one looks for guidance on the types of factors that could inform whether it is contrary to the principles of fundamental justice for a witness to testify by video link to the factors that a judge is to consider under s. 714.1 in determining appropriateness of video link testimony (for a witness in Canada), in my view it leads to the conclusion that ss. 714.1 and 714.2 were not designed as testimonial aids to witnesses. In my view, the Prosecution’s argument about sparing Ms Landrio having to testify in person “against a man who abused and terrorized her for more than a decade” would be better considered under s. 486.2(2) of the Criminal Code.

[74] That said, the fact that this is a case where in all likelihood, if Ms Landrio were in Canada, she would be permitted to testify by closed circuit TV within the courthouse under s. 486.2(2), is a factor which further supports the conclusion that allowing Ms Landrio to testify by video link from the United States would not be contrary to the principles of fundamental justice.

[75] Put simply, if Ms Landrio would be permitted in any event to testify by video link under s. 486.2(2), for purposes of the defendant, it makes no practical difference whether the other end of the video link is in the courthouse, or in the United States.

[76] Although an order for Ms Landrio to testify by closed circuit TV under s. 486.2(2) would be discretionary because she is an adult, it could be ordered by the trial judge if Ms Landrio was testifying in the courthouse, if the judge is of the opinion that the use of closed circuit TV evidence “would facilitate the giving of a full and candid account by the witness of the acts complained of, or would otherwise be in the interests of the proper administration of justice”.

[77] Given the past history between Ms Landrio and Mr. Francis as set out in the previous dangerous offender proceedings before Justice Blouin in the Ontario Court of Justice, and the nature of the current charges, in my view it is difficult to imagine any trial judge not making an order under s. 486.2(2) allowing Ms Landrio to testify by closed circuit TV in the event she were testifying in Canada. Certainly, the clear finding of fear on the part of Ms Landrio in the Reasons for Judgment in the dangerous offender proceedings would appear to support this conclusion (Reasons for Judgment in the dangerous offender proceedings, paras. 15, 23-28).

[78] In substance, much of the defence argument opposing the use of video link evidence amounts to an argument that a defendant has a right to in-person confrontation with a Prosecution witness.

[79] However, it is well-established in our law that a fair trial does not require that a defendant physically confront a witness in person: Schertzer at paras. 37-39; R. v. Levogiannis, [1993] 4 S.C.R. 475, 1993 SCC 47. Indeed, as I have outlined above, in relation to Ms Landrio, it is very likely that if she attended in Canada to testify, she would be permitted to testify by closed circuit TV pursuant to s. 486.2(2).

[80] I am also not persuaded that the Defence will experience any inability to challenge Mr. Bekier’s evidence, cross-examine him, or make full answer and defence, if he testifies by video link. This conclusion is even stronger in relation to Mr. Bekier, as his evidence is less central than Ms Landrio’s, and it appears to me that his evidence is unlikely to be significantly contested by the Defence at trial.

[81] In relation to Mr. Bekier, although counsel for Mr. Francis took the position that Mr. Bekier should testify in person, he agreed during oral argument that Mr. Bekier’s anticipated evidence is shorter and simpler than Ms Landrio’s. I agree with that conclusion. In essence, Mr. Bekier’s evidence is being led to prove that he received the Facebook message at issue, and to prove that he passed the information on to Ms Landrio. Based on the submissions as a whole on the three applications, it does not appear that challenging either of these assertions is a key plank of Mr. Francis’ defence. Rather, it appears that the Defence is likely to focus on whether Mr. Francis asked Mr. Struthers to send the message, whether Ms Landrio actually feared for her safety, and whether that fear was reasonable in all the circumstances.

[82] Regarding the Defence argument that if these witnesses are permitted to testify by video link from outside Canada, in the event one or both of them refuse to answer some questions (for example, questions put to them in cross-examination), the court would be left without tools such as contempt to compel responses, in my view this argument is entirely speculative at this stage.

[83] There is no reason at present to believe that either of these witnesses will refuse to answer all questions put to them when they testify. There is no evidence before me on this application, for example, that they have not been cooperative in the police investigation. Indeed, as I have noted, Ms Landrio already testified by video link in the dangerous offender proceedings without any problems, despite her credibility being challenged in that proceeding (see para. 15 of the Reasons for Judgment in the dangerous offender proceedings). In the unlikely event that one of these witnesses did refuse to answer questions that the trial judge found relevant and admissible, other remedies would be available to the trial judge, depending on the circumstances, such as a mistrial, or a stay of proceedings, or a direction that the particular witness’ evidence should be given no weight. There may be other remedies.

[84] Before concluding, I note that I do not find the Prosecution’s argument about the cost of bringing Ms Landrio and Mr. Bekier to Canada to testify to be compelling in the circumstances of this case. I accept that cost and convenience can be valid considerations in this type of application. But I am not persuaded that the cost of flying these two witnesses to Canada, and accommodation, is a significant factor in the context of this prosecution.

[85] It is clear from the scope of the pre-trial applications that the Prosecution has chosen to commit significant resources to this Prosecution. The Prosecution is entitled to make that choice as an exercise of Prosecutorial discretion, and it is not this court’s role to second-guess such a choice. However, the Prosecution’s claim about the additional cost of flying two witnesses to Toronto, and paying their accommodation and meals, rings hollow in the context of the choice to commit significant prosecutorial resources to this prosecution. However, having said this, I am not persuaded, for the reasons I have explained above, that it is contrary to the principles of fundamental justice for Ms. Landrio and Mr. Bekier to testify by video link.

[86] I want to make clear that in making this ruling, I proceed on the basis that the video link to be used for the testimony of these witnesses must allow the court, the jury, counsel, and the defendant to see and hear the witnesses testify in real time, and allow the witness to see and hear counsel questioning them, the registrar who administers the oath or affirmation, and the court, in the event the presiding judge must speak to the witness. Further, I am unaware at this point of the extent to which documents may need to be shown to either witness either for examination in chief or cross-examination. To the extent that it is necessary to refer to documents, copies of any documents needed must be available in the remote location to show to the witnesses as needed.

[87] If some problem arises with the quality of the video link or any other logistical or technological issue, the trial judge may give directions as necessary, and if need be, revisit this ruling. Given the quality of videoconference technology generally available these days, I do not anticipate this problem arising.

[88] For these reasons, the Prosecution’s application to have Ms Landrio and Mr. Bekier testify by video link is granted.

Hearsay application in relation to the deceased witness, Justice Struthers

[89] The Prosecution seeks to have Mr. Struthers’ videotaped statement to police, given August 9, 2017, admitted into evidence under the principled exception to the hearsay rule, on the basis that it is necessary and reliable.

[90] In order to give the context for this application, I will outline in summary form the chronology leading to of Mr. Struthers’ providing the videotaped statement to police.

[91] The Facebook message at issue in this trial (sent to Mr. Bekier by Mr. Struthers) was sent on August 7, 2017.

[92] On August 7, 2017, in the evening, Mr. Struthers sent his parole officer, Mr. Scott Appleby, three texts, one of which had the Facebook message at issue attached to it. In addition to forwarding the Facebook message, the content of the texts was as follows:

• Text #1: Scott, francis asked me to send this message for him. I straight out asked him if it was his victim. He told me no. He told me it’s a lawyer.
• Text #2: I asked him why he couldn’t do it himself, he told me he has a social media ban. Apparently the police might be looking for him for something, and I hope this has nothing to do with it. I’m just letting you know what I sent, and the first thing I asked him was if he’s allowed to talk to this person, and he assured me he was.
• Text #3: [This text forwarded the Facebook message sent by Mr. Struthers to Mr. Bekier, described above at para. 5]

[93] Because the texts were sent after Mr. Appleby’s normal work hours, Mr. Appleby did not see the texts until the next day. The texts were filed on the voir dire as Exhibits B, C, and D. I note that Exhibits B and C are in the form of printed emails, because Mr. Appleby emailed the texts to himself in order to share them with other staff at the halfway house and their liaison officer with the Toronto Police Service.

[94] On August 8, 2017, after reviewing the texts, Mr. Appleby spoke to Mr. Struthers in person about the circumstances leading to the send of the Facebook message. I will not outline this aspect of Mr. Appleby’s evidence in detail. Originally, as part of the hearsay application, the Prosecution was also seeking to have admitted Mr. Appleby’s evidence of what Mr. Struthers told him during that interview. During submissions on the application, the Prosecution abandoned the aspect of the application of seeking to have admitted Mr. Struthers’ statements to Mr. Appleby in the interview of August 8, 2017. In addition, the Prosecution abandoned seeking to have admitted any hearsay aspects of Mr. Struthers’ texts to Mr. Appleby, and said it would only seek to have admitted the original evidence (i.e., non-hearsay) aspects of the texts (The non-hearsay aspects of the texts would not require an application. I address the non-hearsay aspects of the texts at the end of these reasons).

[95] Mr. Struthers gave the videotaped statement to police on August 9, 2017.

[96] In addition, other evidence was tendered on the voir dire by the Prosecution said to support the circumstantial reliability of the material aspect of Mr. Struthers’ statement to police, that is, that Mr. Francis asked him to send the Facebook message. This included the evidence of Mr. Francis’ parole officer, Heather Revill (filed by agreed statement of facts), that in the days immediately prior to August 7, 2017, Mr. Francis had discussed with Ms Revill his desire to have contact with Ms Landrio, and asked about the process to change his conditions to allow communication with her. Mr. Francis also offered to provide Ms Landrio’s contact information to Ms Revill, and later did provide the contact information. It also included evidence that the phone number in the Facebook message was Mr. Francis’ phone number (via Ms Revill’s agreed statement of facts, and a cell phone bill).

[97] The Prosecution submits that threshold reliability is established in this case for Mr. Struthers’ videotaped statement to police based on a combination of procedural reliability and substantive reliability. The Prosecution submission in relation to substantive reliability is based on circumstantial evidence that the Prosecution submits corroborates the truth of Mr. Struthers’ videotaped statement.

[98] The Defence submits that the hearsay danger in this case is the inability to test the truthfulness of Mr. Struthers’ assertion in his statement to police that Mr. Francis asked him to send the Facebook message, because of the absence of cross-examination. The Defence submits that in the absence of cross-examination there is no meaningful procedural reliability. The Defence submits that substantive reliability is not shown because Mr. Struthers’ correctional records reveal a person with a history of disreputable conduct and disrespect for the criminal justice system, he had a motive to deflect his own responsibility for sending the Facebook message, and he may have had a motive or animus to send the message on his own to cause trouble for Mr. Francis.

[99] The Defence does not contest that the necessity branch of the hearsay analysis is met by the fact that Mr. Struthers is dead. Thus, this application turns on my assessment of whether the threshold reliability criteria has been met.

[100] Hearsay evidence is presumptively inadmissible, unless an exception to the hearsay rule applies. The reason for the presumptive inadmissibility is the general inability to test the reliability of hearsay evidence. Hearsay dangers include problems with the witness’ perception, memory, accurate narration, and truthfulness. In some cases, a particular hearsay statement may present one of these dangers; in some cases, multiple of the hearsay dangers may arise: R. v. Bradshaw, [2017] 1 S.C.R. 865, 2017 SCC 35, at paras. 20-21.

[101] Under the principled exception to the hearsay rule, hearsay evidence that does not fall under one of the traditional exceptions may be admitted if sufficient indicia of necessity and reliability are established on a voir dire. The principle underlying the principled exception is that in some circumstances, the manner in which the hearsay statement was obtained, or other evidence, may be sufficient to address the hearsay dangers to the level of threshold reliability allowing admission into evidence: Bradshaw at paras. 22-24.

[102] As necessity is not contested in this case, I will only address the legal principles in relation to threshold reliability. The reliability requirement is aimed at identifying cases where concerns arising out of the inability to test the evidence (the hearsay dangers) are sufficiently overcome to justify receiving the evidence. Reliability will generally be met by showing: (1) that adequate substitutes for testing truth and accuracy exist to take the place of presence of the witness in court and contemporaneous cross-examination – in other words, that the way the statement was taken provides a means for the ultimate trier of fact to sufficiently assess its worth by means other than contemporaneous cross-examination (procedural reliability); or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). The issue of admissibility is a preliminary assessment of threshold reliability. Even if the court is satisfied that threshold reliability is satisfied, the court retains a discretion not to admit the hearsay statement. If the statement is admitted, ultimate reliability is determined by the trier of fact at the end of the trial. References for all of these general statements of the law in this area are to: Bradshaw at paras. 31; R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, at paras. 2-3, 34-100; R. v. Blackman, [2008] 2 S.C.R. 298, 2008 SCC 37, at paras. 33-35.

[103] Although threshold reliability often will be argued to be met using either procedural reliability or substantive reliability, the law is clear that the two approaches may work in tandem. However, when the claim for admissibility rests on combining factors from both types of reliability, care must be taken to ensure that the combined approach does not lead to admission of statements where, on balance, the hearsay dangers are insufficiently addressed: Bradshaw at para. 32; Blackman at para. 35, Khelawon at paras. 49, 65, 66.

[104] Bradshaw provides guidance on how to approach the analysis where part of the claim for admission of a hearsay statement rests on substantive reliability. Bradshaw instructs that in cases where a claim of substantive reliability plays a role in the admissibility analysis, the court considering admission must consider whether the corroborative and circumstantial evidence said to support threshold reliability provides a rational basis to reject alternative explanations for the statement. A trial judge may only rely on corroborative evidence to establish threshold reliability if it shows, when considered in all the circumstances, that the only likely explanation for the hearsay statement is the declarant’s truthfulness (or accuracy/reliability) about the material aspects of the statement. In other words, the corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy/reliability of the material aspects of the statement: Bradshaw at paras. 33-57; R. v. Nurse, 2019 ONCA 260 at paras. 96-110; R. v. Tsega, 2019 ONCA 111 at para. 26.

[105] In Bradshaw, the majority outlined a four step analysis to consider whether corroborative evidence is of assistance in the substantive reliability inquiry (at para. 57):

• (i) identify the materials aspects of the hearsay statement that are tendered for their truth;
• (ii) identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
• (iii) based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement;
• (iv) 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 aspect of the statement.

[106] The onus to have hearsay admitted under the principled exception rests on the party seeking admission of the evidence, in this case the Prosecution, on a balance of probabilities: Khelawon at para. 47.

[107] I find that on the record before me, there is sufficient threshold reliability established to admit into evidence Mr. Struthers’ videotaped statement to police. My finding that there is threshold reliability is based primarily on the basis of procedural reliability, but supported by corroborative and circumstantial evidence that bolsters the reliability of the statement. I find that the corroborative and circumstantial evidence, when taken together with the strong guarantees of procedural reliability, satisfies me on a balance of probabilities that the only likely explanation for Mr. Struthers’ statement that Mr. Francis asked him to send the Facebook message to Mr. Bekier is that the statement is true.

[108] I will address first procedural reliability, and then substantive reliability.

[109] I find that the following factors provide support for procedural threshold reliability of the videotaped interview:

• The interview is videotaped in its entirety. The video-tape is of good quality, and would enable the trier of fact to see Mr. Struthers’ demeanour while he gave the statement;
• Mr. Struthers took an affirmation to tell the truth at the outset of the statement;
• Mr. Struthers was cautioned at the outset of the statement of the consequences of not telling the truth in the statement, in particular that it would be a criminal offence. In addition, he was told that he did not have to give a statement, and confirmed that he had not been threatened or promised anything in exchange for giving the statement. The officer taking the statement also told Mr. Struthers it was fine to respond that he did not know the answer to a question, and that they were not in a rush.
• The officer conducting the interview did so in a very open-ended and non-leading manner;
• The statement was given formally and in an interview room, giving some level of solemnity to the circumstances;

[110] In light of these aspects of the videotaped statement, I find that there are significant procedural guarantees of reliability of Mr. Struthers’ videotaped statement to police.

[111] Indeed, the only procedural reliability concern not addressed by the manner in which the statement was taken is the absence of some form of cross-examination – either pre-trial (for example at a preliminary inquiry), or at trial. Neither are available since Mr. Struthers is dead. However, as the absence of some form of cross-examination is an important factor (Bradshaw at para. 28), I go on to consider the other evidence and circumstances in the record that support substantive reliability. Before doing so, I make the following observation. In my view Mr. Struthers’ statement to the police is very close to being admissible under the principled exception based on procedural reliability alone. Thus, in my view, the assessment of substantive reliability plays a secondary role in this case. In effect, I find that given the strong guarantees of procedural reliability in this case, the substantive reliability assessment is enough to push this statement over the threshold reliability line.

[112] I turn then to the four-stage analysis from Bradshaw.

[113] First, the material aspect of Mr. Struthers’ videotaped statement is Mr. Struthers’ assertion that Mr. Francis asked Mr. Struthers to send the Facebook message. The fact that the Facebook message was sent is not particularly material. That fact does not appear to be in dispute, and it is clearly supported by the original evidence of the Facebook message, and Mr. Bekier’s anticipated evidence.

[114] Second, the only real hearsay danger in this case is the issue of the truthfulness of Mr. Struthers’ videotaped statement (in particular the assertion that Mr. Francis asked him to send to Facebook message to Mr. Bekier). The Defence argues that because Mr. Struthers’ sent the message, he had a motive to deflect responsibility for sending it, and further, that Mr. Struthers may have had some motive or animus to cause trouble for Mr. Francis by sending the Facebook message of his own initiative.

[115] In light of the original evidence of the Facebook message, and the fact that Mr. Struthers’ videotaped statement was taken within days of the event, this is not a case where there is a realistic concern about Mr. Struthers’ perception of events, his memory, or the accuracy (in terms of the possibility of unintentionally being inaccurate) of his recounting events in the videotaped statement. Thus, the only hearsay danger at issue in this case is limitations on the ability to test Mr. Struthers’ evidence for truthfulness posed by the absence of cross-examination (either previously or at trial).

[116] I will deal with the third and fourth steps of the analysis together, as the fourth step is essentially the conclusion one reaches from engaging in the third step, when considering the full context and corroborative evidence. Under these steps, I must consider, in all of the circumstances, alternative explanations for Mr. Struthers’ statement, even speculative ones, other than that he is telling the truth in the statement. I must consider whether, given the circumstances of the case, the corroborative evidence led at the voir dire sufficiently rules out these alternative explanations such that the only remaining likely explanation for the statement is Mr. Struthers’ truthfulness about the material aspect of the statement (i.e., that Mr. Francis asked him to send the Facebook message).

[117] Thus, the alternate explanations (other than Mr. Struthers’ being truthful in his statement), that I must consider are whether Mr. Struthers’ had a motive to deflect responsibility for sending the message, and in particular, whether he had some motive or animus to send the message of his own initiative to cause trouble for Mr. Francis.

[118] For reasons I will explain, I find on a balance of probabilities that the corroborative and circumstantial evidence, when taken together with the strong guarantees of procedural reliability, satisfies me on a balance of probabilities that the only likely explanation for Mr. Struthers’ statement that Mr. Francis asked him to send the Facebook message to Mr. Bekier is that the statement is true.

[119] The Defence argues that this case is similar on its facts to Bradshaw, and that given Mr. Struthers’ involvement in sending the Facebook message, the possibility (according to the defence) that he had some animus against Mr. Francis, and that this could have led Mr. Struthers to send the message on his own, threshold reliability is not met. I find that this case is distinguishable from Bradshaw, and I do not accept the Defence argument. Some context is necessary to explain my reasons on this aspect of the argument.

[120] The Prosecution agreed as part of this application that Mr. Struthers is a Vetrovec witness. I understand as this agreement by the Prosecution to refer to the fact that Mr. Struthers had a criminal record, and that he was the one who physically sent the Facebook message to Mr. Bekier (based on the content of the message, Mr. Bekier’s anticipated evidence, and Mr. Struthers’ statement to police). Thus, some level of Vetrovec warning will be required in the final instructions to the jury. The exact content of that instruction is to some degree in the discretion of the trial judge, and will depend on the evidence.

[121] I note that although Bradshaw clearly counsels caution with respect to hearsay statements from Vetrovec witnesses, it is also clear that there is no blanket prohibition on admitting hearsay statements from Vetrovec witnesses: Bradshaw at para. 69.

[122] The Defence argues that the circumstances surrounding Mr. Struthers’ statement to police, and the fact that he is a Vetrovec witness undermine threshold reliability in this case in a manner similar to Bradshaw, and should render Mr. Struthers’ videotaped statement to police inadmissible. The Defence relies primarily on two points in support of this submission. First, Defence argues that Mr. Struthers had a motive to point the finger at Mr. Francis’ because Mr. Struthers was also on parole, and he was the one who had sent the Facebook message to Mr. Bekier. Second, the Defence argues that Mr. Struthers may have had a motive to send the message on his own. Although the first proposition has some support in the record, in my view, the second proposition is entirely speculative on the record before me on the application.

[123] Regarding the first proposition, it is true that Mr. Struthers was also on parole at the time he sent the Facebook message to Mr. Bekier. It is also true that because he sent the Facebook message, there is at least an argument that Mr. Struthers’ was concerned about making sure he was not held responsible for sending the message. But the evidence supporting this proposition is not especially strong, viewed in context.

[124] This brings me to the circumstantial and corroborative evidence supporting the Prosecution position – that on a balance of probabilities, Mr. Struthers’ statement to police is likely to be true:

• The circumstantial evidence supports that Mr. Francis had a reason to send Facebook message to Mr. Bekier, and indirectly to Ms Landrio. Mr. Francis knew Mr. Bekier and Ms Landrio. Mr. Struthers did not know either Mr. Bekier or Ms Landrio.
• The content of the Facebook message is circumstantial evidence that it was sent on Mr. Francis’ behalf – it contained Mr. Francis’ contact information (cell number and email). There is evidence confirming that this was in fact Mr. Francis’ cell number.
• There is no evidence of any motive or animus on the part of Mr. Struthers to send the Facebook message on his own – either to cause trouble for Mr. Francis, or for any other reason.
• By contrast, in light of my ruling above on the prior conduct of Mr. Francis towards Ms Landrio, Mr. Francis has a history of harassing and threatening Ms Landrio in the past, which provides evidence of a motive for Mr. Francis to instigate the sending of the message.
• There is evidence from Mr. Francis’ probation officer, Ms Revill, that in the days immediately before the Facebook message was sent, he said to her that he wanted to have contact with Ms Landrio, and asked about how to have his conditions changed to permit contact.
• Mr. Struthers disclosed the fact that he sent the Facebook message to Mr. Bekier to his own parole officer, Mr. Appleby, on August 7, 2017, by text, before the police had advised anyone at the halfway house that Ms Landrio had contacted police about the message. The evidence on the voir dire is that Ms Landrio contacted police on August 7, 2017, but that the officer investigating did not contact staff at the halfway house until the next day, August 8, 2017, which was after Mr. Struthers had sent the texts to Mr. Appleby disclosing the Facebook message sent to Mr. Bekier. Thus, although ultimate reliability will be for the trier of fact, there is a reasonable circumstantial basis to think that Mr. Struthers did not disclose the message in order to deflect responsibility from himself. There is also a reasonable circumstantial basis to think that Mr. Struthers sent the message not knowing that it was (indirectly) to someone that Mr. Francis was prohibited from contacting. This also supports that Mr. Struthers was not attempting to deflect responsibility from himself, as if he sent the message not knowing of the prohibition on contacting Ms Landrio (the indirect recipient of the message), then he was not a party to any offence.

[125] I find that these factors taken cumulatively provide significant corroboration for the material aspect of Mr. Struthers’ statement to police – that he sent the Facebook message to Mr. Bekier based on a request from Mr. Francis. In short, the Facebook message was sent to someone Mr. Francis knew (Mr. Bekier), who was in a position to pass it on to someone else Mr. Francis knew (Ms Landrio); the message contained contact information for Mr. Francis; the message was sent in a context where Mr. Francis had very recently expressed interest in contacting Ms Landrio; the message was sent in a context where Mr. Francis had a history of harassing and threatening Ms Landrio; there is no evidence of any motive for Mr. Struthers to send the message without Mr. Francis’ instigation; and Mr. Struthers disclosed the fact of sending the message to his parole officer before he could have been aware that the police were investigating.

[126] Viewed in this context, the fact that Mr. Struthers sent the message (and thus was to some degree involved – although on based on his statement, unknowingly) does not sufficiently undermine threshold reliability of Mr. Struthers’ statement to police such that it cannot be admitted into evidence, particularly given the factors I have outlined above at paragraphs 109 and 124 above. The Defence is, of course, free to pursue these issues at trial as going to ultimate reliability.

[127] Regarding the second Defence argument, that Mr. Struthers may have had some animus towards Mr. Francis that gave him a motive to send the message on his own, I find that this proposition is entirely speculative on the record on this application. No evidentiary foundation whatsoever was filed by the Defence in response to this application to support some motive for Mr. Struthers to cause trouble for Mr. Francis, or any history of a bad relationship between the two of them. This is one factor that I find distinguishes this case from Bradshaw.

[128] I want to specifically address the suggestion by the Defence that the exchange at the bottom of p. 5 and the top half of p. 6 of the transcript of the videotaped statement suggests some sort of animus between Mr. Struthers and Mr. Francis. I disagree. I find that on a fair reading of this portion of the statement, Mr. Struthers is explaining that he met Mr. Francis at the halfway house, saying that he (Mr. Struthers) did not get along with some guys at the halfway house, but Mr. Francis was not one of them, that he could talk to Mr. Francis, but that they did not agree on everything. This cannot be fairly read as evidence of animus between Mr. Struthers and Mr. Francis.

[129] I have already outlined the circumstantial and corroborative evidence that supports the truth of Mr. Struthers’ statement (in particular the material aspect, that Mr. Francis asked him to send the Facebook message) (see para. 124 above). In the context of that evidence, in my view the entirely speculative and totally unsupported assertion that Mr. Struthers may have had some motive or animus to cause trouble for Mr. Francis which could have led him to send the Facebook message on his own, does not lead me to find that the Prosecution’s reliance on corroborative evidence cannot survive a Bradshaw analysis. The corroborative and circumstantial evidence, when taken together with the strong guarantees of procedural reliability, satisfies me on a balance of probabilities that the only likely explanation for Mr. Struthers’ statement that Mr. Francis asked him to send the Facebook message to Mr. Bekier is that the statement is true.

[130] I want to comment on the reference in Bradshaw to the need to “consider” even “speculative” other explanations for a declarant’s statement besides truth (or accuracy in a case where reliability was the issue). Bradshaw requires that I consider even speculative explanations, and I have done so. But I do not read Bradshaw as suggesting that a speculative alternative explanation can overcome strong corroborative evidence for the truth of a hearsay statement. To read Bradshaw that way would be contrary to the notion that decisions on threshold reliability (like most other decisions in the criminal justice system) are based on evidence, and not on speculation.

[131] In my view, Bradshaw is distinguishable on its facts from this case. As the majority in Bradshaw made clear, there were specific heightened reliability dangers in Bradshaw that led to the ruling of inadmissibility. The majority sets this out clearly in summary form at paragraph 5 of Bradshaw (and expands on it at paras. 59-95):

Here, the hearsay statement was tendered for the truth of Thielen’s claim that Bradshaw participated in the murders. The specific hearsay danger raised by Thielen’s statement was the inability of the trier of fact to assess whether Thielen lied about Bradshaw’s participation in the murders. In addition to the reliability dangers that are inherent in all hearsay statements, there are specific reasons to be concerned that Thielen lied. Thielen had a motive to lie to shift the blame to Bradshaw. Thielen previously said that he had shot both victims, and had not implicated Bradshaw. Furthermore, Thielen was a Vetrovec witness, a witness who cannot be trusted to tell the truth due to his unsavoury character (Vetrovec v. The Queen, [1982] 1 S.C.R. 811, 1982 SCC 20).

[132] In Bradshaw it was not the fact that the witness whose hearsay statement was at issue was a Vetrovec witness, without more, that undermined threshold reliability (although I accept that it was a factor in the analysis). It was the fact that he was a particularly unsavoury Vetrovec witness (see Bradshaw at paras. 68-69), who had given a variety of inconsistent statements (Bradshaw at para. 66), including previously giving a different statement where he had said he (the witness) shot both victims, and did not implicate the defendant in that previous statement (Bradshaw at paras. 66-67). Unlike the present case, in Bradshaw, the content of that previous statements and the circumstances of the investigation and prosecution of the witness provided evidence of a powerful motive for the witness to lie in the hearsay statement at issue (Bradshaw at paras. 66-67). Further, unlike in this case, in Bradshaw, the majority found that the corroborative evidence did not corroborate the material aspects of the hearsay statements at issue.

[133] Despite my finding that at present it is entirely speculative that Mr. Struthers’ had some motive to frame or cause trouble for Mr. Francis by sending an indirect communication to Ms Landrio without any involvement by Mr. Francis, my ruling does not prevent the Defence from exploring this possibility at trial within the bounds of other admissible evidence. I, of course, do not know the scope of any evidence the Defence may possess to support this theory that was not tendered on the application.

[134] For these reasons, I find that threshold reliability is established for Mr. Struthers’ videotaped statement to police. The hearsay application is granted in part. The Prosecution may lead the evidence of Mr. Struthers’ videotaped statement to police given on August 9, 2017.

[135] The trial judge will, of course, have to instruct the jury in relation to the use that may be made of the statement, and in particular regarding using caution with Mr. Struthers’ evidence admitted via the videotaped statement because it will not be subject to cross-examination, and considering in their assessment of the ultimate reliability of Mr. Struthers’ evidence the fact that it will not be subject to cross-examination: R. v. B. (K.G.), [1993] 1 S.C.R. 740, 1993 SCC 116 at pp. 803-04. In addition, quite apart from the hearsay ruling, in light of the agreement of counsel that the principles from Vetrovec apply to Mr. Bradshaw, the jury will have to be cautioned in accordance with the principles in Vetrovec. The exact form of this instruction is to some degree in the discretion of the trial judge.

[136] One issue I flag in relation Mr. Struthers’ evidence being admitted through the videotaped statement to police is the admissibility of his institutional records, and criminal record. These were filed as part of the hearsay voir dire. If Mr. Struthers were alive and present in court, he could be cross-examined on his criminal record, on the conduct underlying his criminal record, and on misconduct disclosed in his institutional records: R. v. Davison, DeRosie, and MacArthur (1974), 20 C.C.C. (2d) 424, 1974 ONCA 787.

[137] I asked Crown counsel during the hearing of this application, in light of fact that the institutional records could be the subject of cross-examination of Mr. Struthers if he were alive, whether the Prosecution would object to the institutional records being admitted into evidence as relevant to assessing the credibility of Mr. Struthers’ videotaped statement. Crown counsel advised that he did not see how the Crown could object to this, given the Crown’s concession that Mr. Struthers is a Vetrovec witness. I will leave it to counsel and the trial judge to address in what form those records should be admitted, should either party seek to tender them at trial.

[138] Apart from the institutional records of Mr. Struthers, I was not advised of any other evidence the defence may seek to tender regarding the credibility of Mr. Struthers (and the defence is not required to advise the court or the Prosecution of such evidence at this stage). If the Defence seeks to tender other evidence which, if Mr. Struthers were alive, could have been the subject of cross-examination, the trial judge will have to consider the admissibility of such evidence, taking into account the fact that the Defence will not have the opportunity to cross-examine Mr. Struthers.

[139] As I have noted, the Prosecution abandoned the portion of the application related to Mr. Struthers’ communications with Mr. Appleby during their meeting on August 8, 2017. The Prosecution also abandoned the application in relation to Mr. Struthers’ texts to Mr. Appleby, except to the extent that portions of them are admissible as original evidence (non-hearsay use).

[140] I now return to the issues of the non-hearsay aspects of the texts sent by Mr. Struthers’ to Mr. Appleby.

[141] Mr. Struthers sent three texts to Mr. Appleby on August 7, 2017, the contents of which I have summarized at paragraphs 5 and 92 above.

[142] The only portion of the August 7, 2017 texts that is original evidence (i.e., is not hearsay) is the third text forwarding of the Facebook message (described above at para. 5). This is admissible as original evidence and as a non-hearsay use. In addition, Mr. Appleby testified that at the meeting with Mr. Struthers on August 8, 2017, Mr. Struthers showed him and then forwarded to him other messages he sent (marked as Exhibit E on the voir dire). Although the content of the August 8 interview is hearsay, the fact that Mr. Struthers provided those other messages to Mr. Appleby, and copies of those messages, is original evidence and not hearsay.

[143] The content of the other two texts from August 7, 2017 is hearsay assertions involving the central issue in this trial, whether Mr. Francis asked Mr. Struthers to send the Facebook message (“Scott, francis asked me to send this message for him. I straight out asked him if it was his victim. He told me no. He told me it’s a lawyer”; and “I asked him why he couldn’t do it himself, he told me he has a social media ban. Apparently the police might be looking for him for something, and I hope this has nothing to do with it. I’m just letting you know what I sent, and the first thing I asked him was if he’s allowed to talk to this person, and he assured me he was.”). Thus, the other content of the texts is not admissible as original evidence.

[144] In order for the jury to understand the narrative of Mr. Struthers telling Mr. Appleby about the Facebook message (i.e., when he sent him the text with the copy of the Facebook message on August 7, 2017), in my view Mr. Appleby should be permitted to testify that when Mr. Struthers sent him the copy of the Facebook message on August 7, 2017, he told Mr. Struthers by text that Mr. Francis asked him to send the Facebook message at issue (but none of the other detailed hearsay content of the texts). This likely requires an instruction from the trial judge that this aspect of Mr. Appleby’s evidence is only admissible to understand the narrative of the reporting, and not for the truth of its contents (I say likely, because it may ultimately depend on how the evidence comes out whether such an instruction is required). I do not see any real prejudice to the Defence from allowing Mr. Appleby to give the evidence that when Mr. Struthers texted him the Facebook message, he said he was sending it to Mr. Appleby because Mr. Francis had asked him to send the original Facebook message, since the jury will hear that in Mr. Struthers’ videotaped statement to police. But the further detail in Mr. Struthers’ first two texts to Mr. Appleby is not admissible in evidence.

[145] I thank counsel for their helpful written and oral submissions on the applications.

Justice J. Copeland

Released: February 3, 2020

Footnotes:

[1] I use the phrase “resides outside Canada” because that is the situation in this case. I note that s. 714.2 appears to be somewhat broader in its application, in that it speaks to “a witness outside Canada”, and thus appears to apply also to a witness who is outside Canada for some period of time, but does not reside outside Canada. I expect in that situation, how long and why the witness is outside Canada would be a consideration in assessing whether allowing testimony by video link was contrary to the principles of fundamental justice. In any event, in this case, the two witnesses are outside Canada and reside outside Canada.

[2] Section 714.2(1) was amended in 2019. It appears the amendments were designed to simplify the language of the provision. The old version used the phrase “by means of technology that permits the witness to testify in the virtual presence of the parties”. The new version uses the much simpler language “by videoconference”. In my view the 2019 amendment does not change the substance of the provision, and the case law under the previous version is still applicable.