COURT FILE NO.: CR-19-0069-000
DATE: 2020-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Applicant
- and -
Melissa Casson
Respondent
Stacey Hamilton for the Applicant
Neil McCartney for the Respondent
HEARD: January 9, 2019, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486.5(9) OF THE CRIMINAL CODE OF CANADA
Ruling on Application
Overview
[1] The accused, Ms. Casson, is charged with fraud over $5,000 and uttering forged documents contrary to ss. 380(1)(a) and 368(1)(a) of the Criminal Code.
[2] The Crown seeks an order admitting a video-recorded statement from the complainant into evidence in this trial.
[3] The complainant, Ms. H., was born in 1947. The video statement, under oath, was taken in her apartment on January 10, 2017, when she was 70. A “health coach” was present during the interview. Ms. H. was “legally blind” and had required the assistance of personal support workers for a number of years. She died in December 2018 before she could testify at a preliminary inquiry. The Crown preferred this indictment.
[4] The Crown argues that the “Khan”[^1] criteria, necessity and threshold reliability, are met and that, therefore, the video statement should be admitted.
The Facts
The Statement
[5] Constable MacLaurin was, until her retirement, the Elder Abuse officer with the Thunder Bay police service. She testified on this application about her interview with Ms. H. and the video of the interview was filed as an exhibit. The video is 59 minutes long.
[6] The interview began with a commissioner of oaths first cautioning Ms. H. that it was an offence to make a false complaint. Then the commissioner administered an oath to Ms. H. who swore on a Bible.
[7] A health coach from Community Care Access Centre, Tawny Roblin, was present and, at times, visible during the interview. Sometimes, Ms. Roblin spoke. She said that she was present at the request of Ms. H. as a support and to “possibly make clarification … if [Ms. H.] doesn’t remember….”. Ms. Roblin had known Ms. H. for about six months.
[8] At the beginning, Ms. H. prompted Ms. Roblin to assist: “Tawny, if I forget to say, would you?” and Ms. H. asked Constable MacLaurin, “If that was alright?” Constable McLaurin replied, “Sure.” Ms. Roblin was not cautioned or under oath but acknowledged that she would be speaking the truth.
[9] Ms. H. said that she has had personal support workers for the prior 3 to 4 years. She said that Ms. Casson came every Saturday. She had other support workers on other days. Ms. Casson would get groceries at either Metro or Walmart for her using Ms. H.’s debit card. When asked whether Ms. Casson ever withdrew cash for her, Ms. H. said, “I think she did a couple of times.” Constable McLaurin asked her if she was “Sure.” Ms. H. said she would get $500 withdrawn each month. When prompted for how long Ms. Casson had been withdrawing cash monthly for her, Ms. H. said that it “had to be a couple of years.”
[10] Ms. H. was hospitalized for a period in 2016 and when she returned home, she had a new personal support worker. The new support worker opened her bank statements for her, and this is when Ms. H. discovered that her bank balance was negative. There were charges for Little Caesars, McDonald’s, and a toy shop. She said that she does not “eat out” or buy toys.
[11] She said that she never gave her bank card to anyone other than Ms. Casson. She said, emphatically, that she did not give Ms. Casson permission to take money from her bank account for herself and that she never gifted any money to Ms. Casson. She said that she did not check to see whether her bank card was returned on the Saturdays but was led by the officer to conclude that it was “possible” that Ms. Casson kept her bank card during the week.
[12] Ms. H. said that she does not do any computer or telephone banking and that if there were any such transactions, they would not have been done by her.
[13] After reviewing Ms. H.’s usual expenses, Constable MacLaurin said that there were too many expenses or transactions to go over them all. She had the bank records and reviewed some transactions with Ms. H., starting in January 2010.
[14] Ms. H. asked Ms. Roblin to correct her if she “is wrong on something.”
[15] Starting in 2013, certain transactions that Constable MacLaurin viewed as uncharacteristic were put to Ms. H. This included multiple purchases at Sears on the same day, another purchase at Sears for over $400 on a later date, purchases at McDonald’s, Canadian Tire, Payless Shoes, HMV, Deluxe Paints, more transactions at Walmart, Dollarama, and gas expenses. Ms. H. denied that she made or authorized these purchases.
[16] Then, Constable MacLaurin reviewed the bank records with respect to cash withdrawals. In July 2016, Constable MacLaurin noted that cash withdrawals now occurred at a different branch, $600 is withdrawn. On August 4, 2016, $400 is withdrawn at that location. Later, the same day, $500 is withdrawn. On August 6, 2016, there is a $500 withdrawal at a different location.
[17] Constable MacLaurin then summarized some electronic transfers to Ms. Casson: August 12, 2016 – $500, – $500, – $500, August 17 – $500 and, August 22 – $500. Ms. H. exclaimed, “Oh my God!”
[18] Constable MacLaurin turned next to Ms. H.’s Tax Free Savings Account (“TSFA”) and told Ms. H. that $1,500 was withdrawn on August 3, 2016, with a further withdrawal of $1,000 on August 15, 2016, and another withdrawal of $1,000 on August 31, 2016. Ms. H. said that she did not do these transactions.
[19] Constable MacLaurin then asked Ms. Roblin to explain what she discovered when she reviewed the bank statements with Ms. H. Ms. Roblin said that she had asked Ms. H. about the email transfers and about whether she had done them. Ms. H. answered that she had not. Ms. Roblin said that she and Ms. H. telephoned the bank and then, later, attended at the branch.
[20] Constable MacLaurin asked Ms. H. whether she wanted to tell her about the meeting at the bank or whether she wished Ms. Roblin to speak. Ms. H. asked Ms. Roblin to speak since her “[My] head is spinning.” Ms. Roblin said they discovered that cheques had been written on the account and that the signature was not Ms. H.’s. A note was put on the account to monitor for suspicious activity and to verify signatures on any cheques. Ms. Roblin said that another cheque was discovered to be fraudulent. Ms. H. did not remember who it was payable to, but Ms. Roblin thought it was payable to Ms. Casson and thought that the amount was a “couple of hundred dollars.” Ms. H. said that she did not “pre-sign” any cheques.
[21] Constable MacLaurin had Ms. H. confirm that it was not possible that anyone else other than Ms. Casson could have her bank card. Ms. H. acknowledged that she gave Ms. Casson her “PIN” to use with her card.
[22] Ms. H. also talked about another incident that happened just before the statement was taken. She said that she had a $100 bill that was in her pocket go missing. She thought that it had fallen out of her pocket to the floor where she could not see and was taken by a delivery person.
[23] Ms. H. said that she did not have any medical issues that affected her memory.
[24] Constable MacLaurin confirmed, in cross-examination, that she was not aware of a prior complaint by Ms. H. to the police in October 2015.
Prior Complaint to the Police
[25] This was not the first time that Ms. H. reported theft by a home care worker. On October 29, 2015, police officers met with Ms. H. The following are excerpts from the occurrence report:
… Ms. H., who indicated that she currently has a home care worker known to her as J., who works for Paramed, and is approximately 23 years old. Ms. H. indicated that she had given J. her debit card and her personal identification number to purchase groceries for her, and that on today’s date she failed to return the debit card.
Ms. H. also advised at that time by officers that J. is still currently in her apartment.
Officers cleared the apartment, and did not locate anyone inside there. At that time they re-attended to #122 speak to Ms. H. once again. At that time, Ms. H. started to advise officers of the different story, that J. advised that she was going to kill her as she is worth $8,000. Ms. H. then advised Constable Lorentz that she asked J. if she was going to kill her, and if it was worth the $8,000. It should be noted that it appears that Ms. H. is suffering from some sort of mental illness and her story changed several times.
Constable Lorentz then inquired of Ms. H. where she normally keeps her debit card, and she advised her wallet. At that time, Constable Lorentz re-attend at her apartment and located her wallet inside of her purse, with her debit card in it. Ms. H.’s reply to that was that J. must have put it back in before she left her apartment.
[26] The investigating officers concluded that the report was false and took no further action.
Positions of the Parties
[27] The Crown acknowledges that it has the onus of establishing, on a balance of probabilities, that the statement of the complainant meets the criteria of necessity and threshold reliability in order to be admitted into evidence.
[28] The Crown submits that necessity is self-evident given the death of the complainant. The Crown argues that, as the statement was taken under oath, after caution, and videotaped, there is sufficient procedural reliability. With respect to substantive reliability, the Crown argues that the circumstances in which the complainant made her statement alleviate any concerns regarding its trustworthiness. The Crown relies upon the fact that the statement was made close in time to the discovery of the alleged fraud, that there was no evidence of any motive to lie, and that most of the information provided by the complainant was volunteered and not a result of leading questions. The Crown submits that the fact that the statement was video recorded allows the trier of fact to assess demeanor. The Crown submits that the inability to conduct cross-examination is not relevant at the threshold reliability stage of the admissibility analysis and relies upon R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915.
[29] The Defence argues that the necessity requirement has not been met because the Crown did not make all reasonable efforts to secure the evidence of the complainant in a way in which the right to cross-examination was preserved. The Defence points to the fact that the Crown adjourned the preliminary inquiry before the complainant’s death. With respect to reliability, the Defence argues that the statement is not sufficiently reliable given the apparent issues with the complainant’s recollection, including requiring the assistance of Ms. Roblin, the nature of the questioning and, most critically, the observations made by the officers on the prior complaint and the contradictions between the two statements.
The Law
[30] Counsel concur that the most helpful cases are the decisions of the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 and, more recently, R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
[31] The steps necessary to determine admissibility are clearly set out in Bradshaw:
26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous [page 880] cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.
27 The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).
28 Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76); Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (B. (K.G.); R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95). …
30 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 CanLII 79 (SCC), [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 SCC 37, [2008] 2 S.C.R. 298, at para. 55).
31 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). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive [page882] 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 sceptical caution would look upon it as trustworthy" (Khelawon, at para. 62, citing Wigmore, at p. 154); 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). [Emphasis added.]
Analysis and Disposition
[32] I agree with the Crown that the death of the complainant meets the necessity requirement. Although the complainant was 70 years old at the time of her statement and disabled, there was nothing to suggest that her death was imminent. The preliminary inquiry that was adjourned was set for December 6, 2018, and, given that the complainant died on December 9, 2018, it was highly unlikely that she would have been well enough to attend then.
[33] Therefore, following Bradshaw, I must assess the statement’s threshold reliability.
[34] With respect to procedural reliability, the statement was video recorded, an oath was administered, and a warning was given about the consequences of lying. However, there was no opportunity for cross-examination. In arguing that cross-examination goes to weight and not admissibility, the Crown relied upon this passage from Smith:
Where the criteria of necessity and reliability are satisfied, the lack of testing by cross examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis. [Paragraph 39.]
[35] In Smith, the issue was what the deceased said to her mother in a telephone call. The court noted that the “traditional dangers” associated with hearsay evidence – perception, memory and credibility – were not present in any significant degree on these facts. In other words, there were few circumstances which raised apprehension about the reliability of the statement. As the Court said in Smith, “Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight”… [Emphasis added.] Therefore, threshold reliability must be satisfied, with or without cross-examination.
[36] With respect to substantive reliability, a number of concerns are present.
[37] Ms. H. may have had some issues with memory. When asked whether Ms. Casson ever withdrew cash for her, Ms. H. responded, “I think she did a couple of times.” After prompting, Ms. H. said, “had to be a couple of years.” Ms. H.’s reliance on Ms. Roblin, “if I forget to say would you” and asking Ms. Roblin to correct her if she “is wrong on something” suggest that Ms. H., herself, suspected that she had incomplete or faulty recollection.
[38] The way that the interview was conducted raises concerns with the complainant’s independent memory. Ms. H. had to be prompted to change her answer about how often Ms. Casson did bank withdrawals. Despite the assertion by the Crown to the contrary, I find that much of the interview was conducted through leading questions, with Constable MacLaurin providing facts with minimal input from Ms. H.
[39] The facts also raised some concerns about Ms. H.’s recollection. It is asserted at paragraph four of the Crown’s factum that the complainant was hospitalized from February 2016 and released from hospital in June 2016 with a new personal support worker. Yet, Constable MacLaurin implied that Ms. Casson made bank withdrawals in July and August 2016 with no explanation as to how Ms. H. managed her grocery and other purchases during that period without her bank card.
[40] When this recorded statement is looked at through the lens of the October 2015 complaint to the police, more concerns are raised. Although she advised Constable MacLaurin twice that it was not possible that anyone else other than Ms. Casson could have had her bank card, Ms. H. told the officers in October 2015 that another personal support worker had her debit card and her PIN. The officers received other allegations that they determined were not true. They concluded that Ms. H. had some mental health issues.
[41] Thus, “traditional dangers” associated with hearsay evidence – memory and credibility – are present to a significant degree in this case.
[42] This statement is not “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (see Bradshaw at para. 31). Rather, as in Khelawon, the unavailability of the complainant for cross-examination poses “significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth (Khelawon at para. 107). This is especially so given the noted concerns.
[43] Therefore, I am not satisfied, on a balance of probabilities, that threshold reliability has been established.
[44] This application is dismissed. In accordance with my endorsement of January 9, 2020, this matter is to be spoken to at assignment court at 1:30 p.m. on February 24, 2020.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: February 10, 2020
COURT FILE NO.: CR-19-0069-000
DATE: 2020-02-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Applicant
- and -
Melissa Casson
Respondent
Neil McCartney, for the Plaintiff/Applicant
Stacey Hamilton, for the Defendant/Respondent
RULING ON APPLICATION
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486.5(9) OF THE CRIMINAL CODE OF CANADA
Newton J.
Released: February 10, 2020
/cj
[^1]: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531