COURT FILE NO.: 19-RM2312
DATE: 20210218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROGER BEAUDETTE
Accused
Lia Bramwell and James Bocking for the Crown
Joseph Addelman and Samantha Robinson for the Accused
HEARD: November 23 & 24, 2020
ruling (hearsay voire dire)
C.T. Hackland J.
[1] This is the court’s ruling on a pretrial motion brought by the accused to admit into evidence at trial the statement of a witness, Ms. St.Pierre (“the witness”), who died of liver failure on April 10, 2019, about six weeks after providing the statement to the Ottawa Police. The statement was videotaped by the police and given under oath on February 28th, 2019. In the statement the witness relates a conversation she says she had with the deceased and a subsequent conversation with the accused, both of which she says occurred on February 8th, 2019, the date of the stabbing incident giving rise to the charges against the accused.
[2] The accused is charged with the 2nd degree murder of Ilyas Ibrahim (“the deceased”). The Crown alleges that on February 8th 2019 at approximately 4:17 p.m. the accused inflicted a stab wound on the deceased in a brief altercation between the two men in the parking lot of a social housing high-rise apartment building (the apartment building), where the deceased resided. The deceased was transported to hospital following the stabbing, where he was placed on life support and died from the stab wound 8 days later, on February 16, 2019.
[3] The witness says in her statement that she had been friendly with both men in the past and each of them had paid separate visits to her, in her apartment, on the day of the stabbing. Her apartment unit was on the 11th floor, one floor above the unit in which the deceased lived. The accused lived nearby in a men’s shelter.
[4] From the somewhat vague description of the specific timing provided by the witness in her statement, the deceased appears to have visited her one or two hours before the stabbing. Thereafter, the accused visited her in her apartment about two hours after the stabbing. He was arrested elsewhere in the building shortly after leaving the witness’s apartment. The witness’s observations of each of the two men during their respective visits and the utterances she attributes to each of them during the visits, is recorded in her videotaped statement. It is this videotaped statement of the now deceased witness which the defence seeks to have admitted into evidence.
[5] Security cameras in the apartment building captured images of the two man getting onto the elevator on the fifth floor together, then exiting the building and walking in tandem one behind the other into the parking area, at which point they were off camera for a period of 14 seconds. At the conclusion of this 14 second interval, images of the deceased only, are captured by security cameras as he re-enters the building. He can be seen to be clutching his chest as he enters the front door of the building and proceeds to the business office on the ground floor asking for medical help. While no formal admission has been made that it was the accused who stabbed the deceased during this brief altercation in the parking lot, this seems to be the likely conclusion to be drawn from the security camera images.
[6] A key factual issue in this case will be how this stab wound occurred in the altercation between the two men and what were the accused’s actions and his state of mind at the time. The defence of self- defence is likely to be an important issue in this trial.
[7] In any event, 18 days after the stabbing occurred, the witness telephoned the Ottawa Police (on February 26th) and disclosed that she had spoken with both men on the day of the incident. The officer who received the call noted on his ‘tip message form’ that the witness had stated that “it would not have surprised her if (the deceased) attacked (the accused)”. The police visited the witness in her apartment 2 days later and as noted previously, obtained a videotaped sworn statement from her.
[8] I would observe that the defence is not seeking the admission of the telephone comment made by the witness to the police officer as recorded on the tip message form, but I am mindful of the comment when considering threshold reliability of the witness in reference to her subsequent statement to the police.
[9] The witness was very ill from liver disease on the date of the stabbing incident and at the time of providing her video statement and as noted, she died 6 weeks later. She had been in hospital for several days until the day prior to her telephone call to police.
[10] The court heard the testimony of Dr. Erin Kelly, a liver specialist who performed an assessment or consultation on the witness during this hospitalization. Dr. Kelly explained that the witness’s liver disease was very advanced and she demonstrated clear signs of hepatic encephalopathy which is a type of dementia associated with severe liver disease. In addition, the patient had substance abuse issues, all of which combined to indicate to the doctor the need to involve a relative of the patient to assist the patient in understanding what was said to her. Dr. Kelly suggested that the witness’s condition would likely affect her memory and her cognitive ability, depending on what was being asked of her. The witness also had serious substance abuse issues.
[11] In her statement the witness related that she and the deceased were old friends “…he’s very close to me”, and he had visited her either once or twice on the day that he was stabbed. She was vague on the timing and often contradicted herself on details. She described the deceased as being intoxicated and being angry and agitated about something or someone – she wasn’t sure which. She went on to offer her opinion that when the deceased drank alcohol, he was aggressive and she added that he knew how to fight and referred to his army training. She told a story about how, some months previously, the deceased had intimidated a man who he thought might frighten or offend the witness.
[12] In the court’s view, it was evident that the witness wished to express the opinion that the deceased was a dangerous person, at least when drinking, and appeared to be agitated before the incident. For reasons unknown, she appeared to be attempting to portray the deceased in a negative light, notwithstanding her description of him as a very close friend.
[13] The witness went on to relate that she also had a visit from the accused, much later in the day. The accused, she says, told her that he had stabbed the deceased, only once, because the deceased was beating him about the head, but he also told her that he was confident the deceased was all right. The witness described the accused as being “a nice person, quite calm and laid back.” She acknowledged the accused was also her friend. At the conclusion of their conversation she told the accused to go and find out if the deceased was seriously injured, after which he left her apartment.
[14] The witness also volunteered at the beginning of her statement that she did not accept that what had occurred was ‘a homicide’. The reasons for holding this opinion and her apparent bias in favor of the accused and against the deceased were not explained by her, nor were any probing questions put to her about this.
Analysis and the Law
[15] Statements from out of court witnesses tendered to prove the truth of the statements are hearsay and as such are presumptively inadmissible.
[16] A further point, properly emphasized by the Crown, is that the utterances the witness attributes to each of the men, both the deceased and the accused, were in themselves hearsay. Accordingly, this is a double hearsay situation so far as what each man said to the now deceased witness is concerned. This makes the threshold reliability of these utterances much more difficult to assess. Indeed both the credibility and the reliability of the two men and of the witness herself are all implicated in these hearsay statements.
[17] It is important to observe that the witness did not see the stabbing. To the extent she held an opinion as to who the aggressor likely was or as to the character or personal characteristics of the two men, she would not have been permitted to testify about this even had she been available at trial. There would be no admissible basis for speculative opinion and character evidence of this sort, quite irrespective of the hearsay issues presented.
[18] The general principles governing the admission of hearsay evidence are set out in leading appellate cases such as R. v. Starr, 2000 SCC 40, R. v. Khelawon, 2006 SCC 57 and R. v. Bradshaw, 2017 SCC 35, 2017 SCJ 35.
[19] As the Supreme Court explained in Kelawon, hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth, in the absence of the witness being subject to cross-examination. However, the court may admit hearsay evidence under one of the established exceptions to the hearsay rule or under the principled exception, based on the criteria of necessity and threshold liability, which must be proven on a balance of probability by the party proffering the statements or the utterances.
[20] In the present case it is conceded that the necessity criteria is met because the witness is deceased and to the extent her video statement attributes utterances to the stabbing victim, he is also deceased.
[21] The admissibility of the statement in this case turns on its threshold reliability, which the defence must establish on the balance of probability. As explained in Bradshaw (page 2-headnote):
Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers relate to the difficulties of assessing the declarant’s perception, memory, narration or sincerity. These dangers can be overcome by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Substantive reliability is established when the statement is unlikely to change under cross‑examination… A trial judge can only rely on corroborative evidence to establish substantive reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
[22] In the present case surveillance videos in the hallway of the apartment building seem to or at least could support the witness’ statement that she received a visit from each of the deceased and subsequently from the accused on the day of the stabbing. There is really no reason to doubt that she had these visits. However, there is no corroboration for anything she says was said to her by the deceased on his visit. She says he was drinking and was angry about something or someone. She admitted she had no idea what he was upset about.
[23] As to her apparent opinion that the deceased was likely the aggressor in the stabbing incident, this view seems to be based on facts that are not before the court, and possibly on things she subsequently learned from others during the 20 day interval between the stabbing and her police statement. Or, she may have simply chosen to believe the version of events the accused related to her during his visit. There may well have been inter-personal issues between her and either or both of the men, each of whom she describes as ‘friends’. In short, so far as the conversation she had with the deceased, there is no circumstantial reliability to any of it and for unknown reasons she displayed an obvious bias against him, being apparently of the opinion that he must have been the aggressor.
[24] There is also an observable vagueness and incoherence in her video-statement, both in her demeanor and in the content of her statement which suggests the possibility of cognitive decline associated with her illness, as explained by Dr. Kelly and likely exacerbated by the passage of time between the events and her statement. The witness referred several times to herself as being “in a fog”.
[25] In summary, there are serious problems with the witness’s perception, memory, narration and sincerity and accordingly I find that the defence has failed to demonstrate the threshold reliability of that portion of the witnesses’ statement relating to her conversation with the deceased on the day of the stabbing. That portion of her statement will not be admitted into evidence.
[26] The accused relies on the decision of the Court of Appeal in R. v. Folland (1999), 1999 CanLII 3684 (ON CA), 132 C.C.C. (3d) 14 for the proposition that the court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice. In this case it is suggested that because the application to admit the statement is brought by the accused greater flexibility is required in applying the threshold reliability criteria.
[27] In my view the inherent unreliability of the witness statement is sufficiently clear that its admission would impair the fairness of the trial process in so far as her conversation with the deceased is concerned or her own personal comments about the deceased and their prior relationship. However, considering the procedural safeguards inherent in the video statement to police, provided under oath, I will admit into evidence the witness’s observations about the deceased’s demeanor. Any partiality concerns as to these observations on the witness’s part will be considered as a matter of ultimate reliability. What I will admit into evidence is this: The deceased visited the witness for 15 minutes or so, one or two hours before the incident and she observed at that time he was drinking and appeared upset.
The Statement Pertaining to the Accused
[28] Turning to the portion of the witness’s statement pertaining to her visit from the accused, the same concerns noted above preclude the application of the principled exception. So far as the statement or admission she attributes to the accused that he stabbed the deceased, the Crown advises that they are not seeking the admission of that evidence. As noted, both parties acknowledge that the identity of the accused as the person involved in the altercation with the deceased is not contested.
[29] The witness described what the accused said to her during his visit. It amounted to a very self-serving description of his struggle with the deceased, including, “…he attacked me. I stabbed him. I just nicked him…he was punching me in the head…he kept punching me in the head and pulling my hair…and I couldn’t get away…I just needed to get him off me…he was beating me in the head so I couldn’t even see…”.
[30] Previous out of court statements which are self serving, also known as previous consistent statements, are a form of hearsay and are not admissible by an accused. The remarks the accused made to the witness are therefore presumptively inadmissible. If the witness were alive, she would not be permitted to give this evidence.
[31] However, if the accused elects to testify in this case and the suggestion is made that his version of events is a fabrication, his statement to the witness could be admissible, see R. v. Simpson 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3 at paras 24-25. Any ruling on that point must be deferred at this time. Similarly, the law recognizes that in certain circumstances spontaneous statements made by an accused when first confronted with an accusation, may be admitted as going to his credibility, see R. v. Edgar 2010 ONCA 529. The circumstances described in the witness statement do not appear to invite the application of that exception, but it is possible that the accused has a different version of events to provide about his visit with the witness.
[32] The accused also seeks to have the accused’s conversation with the witness admitted under the state of mind exception to the hearsay rule. I do not accept this submission as the conversation with the witness occurred some two hours after the stabbing and is self serving and of no probative value as to his state of mind at the time of the stabbing.
[33] In summary, the statement of the witness provided to the police on February 28, 2019 is inadmissible hearsay and will not be admitted into evidence, except as provided in paragraph 27 above. This ruling may be revisited in the event that the accused testifies in this trial and there becomes a further evidentiary basis to re-consider this ruling.
Released: February 18, 2021
COURT FILE NO.: 19-RM2312
DATE: 20210218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROGER BEAUDETTE
Accused
ruling (hearsay voire dire)
Hackland J.
Released: February 18, 2021