COURT FILE NO.: 20-49

DATE: 2021/09/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Larry Carisse

BEFORE: The Honourable Justice Laurie Lacelle

COUNSEL: Andre White, Counsel for the Crown Cedric Nahum, Counsel for the Defendant

HEARD: May 25 and 27, 2021; July 13, 2021; August 18 and 20, 2021

ruling on hearsay application

Introduction

[1] The Crown brings an Application to have the prior audio recorded out-of-court statement of the complainant in this case admitted for the truth of its contents because the complainant has recanted her evidence during the trial. The defence opposes the application.

[2] I have concluded that the statement should be admitted. These are my reasons for so ruling.

[3] I begin with an overview of the evidentiary record for the application.

Overview of the evidence

PC Morin

[4] On October 24, 2019, police responded to a call for assistance in the town of Alexandria. A panic alarm had been activated by the complainant, Claire Carisse.

[5] PC Morin attended the scene and found the complainant in a distraught and panicked state. She was crying. She reported that she had been assaulted by her son, the accused, who had been experiencing some kind of psychosis that had been getting worse over the past few days. She referenced her concern that her son was suicidal. PC Morin observed that she had redness on the front of her neck, a small cut to the side of her right nostril, and a small amount of blood at that location.

[6] PC Morin observed no indication that the complainant was under the influence of any kind of intoxicant. He says he took a compassionate approach in interacting with her and was trying to make her feel safe. He spoke with her in French.

[7] When asked if it was clear that the complainant’s primary concern was that her son receive medical treatment, PC Morin said she was concerned about his mental state, and also about what had just occurred to her.

[8] PC Morin did not review his notes with the complainant (recording what she said to him) and he does not believe that he told her the information she provided would be used in a criminal investigation.

PC Halle

[9] PC Halle arrived at the complainant’s address a few minutes after PC Morin. He said the complainant was crying and very upset.

[10] PC Halle spoke to the complainant about giving a videotaped statement at the police detachment. He told her that it could be used in the future to help refresh her memory. He said that they would bring her son in for an assessment, but he also told her that there was a criminal aspect of the incident they had to deal with. He testified that he told her there was an investigation into potential charges, police were looking into that, and this is why they were asking her to attend the detachment. He says he informed her of this at both her home and at the detachment.

[11] PC Halle conducted the interview with the complainant at the detachment. The interview commenced at 10:05 pm. This was about an hour and 20 minutes after the panic alarm was activated by the complainant at 8:42 pm.

[12] The interview was done on video with the audio recording made as a backup. The police were using a new system and there was a problem with the video recording. Consequently, the only record of the interview is the audio backup.

[13] PC Halle testified that there was nothing materially different in what the complainant said at her home and what she later said at the detachment. Further, the complainant did not seem disoriented or confused or under such stress that she was unable to communicate.

[14] During the interview, the complainant stated:

a. Her son attacked her while he was in psychosis;

b. Her son was experiencing psychosis in the days leading up to the assault;

c. Her son pushed her on the bed, wrapped his left arm around her neck, placed his right hand over her mouth and nose and pulled her head backwards three times;

d. Her son had a knife in his left hand as he assaulted her;

e. Her son took her laptop without her consent;

f. Her son left her residence in a 2002 Toyota Celica;

g. The mark on her neck was not present before that date (she did not mention it was a result of cancer treatment).

[15] PC Halle met with the complainant at a later date with the Crown and a Victim Witness staff member. At that time, the complainant indicated that she did not want any charges laid. He said she did not “change her story” of what had occurred.

[16] PC Halle did not recollect the complainant asking for a “wellness check”. He said she did provide concerns about her son’s mental state and police acted on that.

The evidence of the complainant

[17] The complainant testified about the circumstances leading to police attending at her home. She confirmed she used her panic alarm.

[18] Once police arrived at her apartment, she asked police for help to verify her son’s safety, since he had left her residence threatening suicide. This is why she used the panic alarm, which she had received because of prior victimization by an abusive partner. She told the officers she was asking for a “wellness check” on her son and told them she was worried for his mental health. She said this was principally what she told police who attended at her residence.

[19] The complainant testified that while at her residence, she never told the police her son assaulted her. She said that she recalled that following an argument, he had asked her if she wanted him to kill himself, and this is when she pressed the panic button to prevent him from leaving. She tried to stop him. When he made the comments about suicide, she slapped him on the face and told him not to say that. She was the physical aggressor. As I understand her evidence, there was further physical contact between her and her son as she tried to prevent him from leaving. Her son put his arm across her and/or pushed her, which resulted in her falling on the bed. In the course of this, her son said he didn’t want to hurt her and/or “leave me alone”, pulled away, and then left the apartment.

[20] With respect to the condition of the home, the complainant said:

a. the door handle on her bedroom door had been loose for a year, but she had no one to repair it;

b. she lived in disorder and needed assistance and that is why her bedroom looks dishevelled;

c. the plates on the floor were for her cat;

d. the red mark on her neck was not an injury – it was a scar following surgeries to remove a tumour.

[21] The complainant said she had omitted telling the police that she had slapped her son. She denied that:

a. She ever said her son attacked her;

b. That she had lied to police and said he assaulted her because she could get mental health assistance for him by doing so;

c. That her son had ever put his hands around her neck or covered her mouth;

d. That she had lost consciousness;

e. That her son pulled her head backwards.

[22] With respect to her laptop, the complainant said that her son had the right to use it and they shared everything in the house. He did not necessarily need her permission to take her laptop, it was “pretty automatic”. He would always return it if he borrowed it. On the evening of this incident, she had not forbidden him from taking it.

The legal principles

[23] Hearsay evidence is presumptively inadmissible. Various authorities have reviewed the key principles that have developed in the law which governs when hearsay may be admissible at trial (see for instance R. v. Hoffman, 2019 ONSC 3435 at paras. 12-19.). I will not summarize that law again here.

[24] The central issue in this case is whether the Crown has proved the threshold reliability of the out-of-court statement on a balance of probabilities. Since the complainant has recanted, the necessity criterion is met.

[25] As confirmed in Bradshaw, “[t]hreshold reliability is established when the hearsay “is sufficiently reliable to overcome dangers arising form the difficulty of testing it” (Khelawon, at para. 49) These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48)”. These dangers may be overcome by showing the threshold reliability of the statement.

[26] A summary of the law that applies to the threshold reliability requirement was provided in R. v. Srun, 2019 ONCA 453 by Watt J.A. as follows:

The reliability requirement may be established in either or both of two ways.

Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, 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. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 28; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92-95.

Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process: Khelawon, at paras. 49, 62, 107; Bradshaw, at para. 31.

Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: Fredericks v. R., 2018 NBCA 56, 365 C.C.C. (3d) 498, at para. 77; Bradshaw, at para. 32.

Even where the proponent of hearsay evidence satisfies the necessity and reliability requirements of the principled approach to hearsay, it does not follow that the hearsay statement will be admitted. The trial judge retains a discretion to exclude otherwise admissible hearsay where its probative value is outweighed by its prejudicial effect: Hawkins, at para. 85; Khelawon, at paras. 3, 49; Bradshaw, at para. 24. But where the proponent of the evidence is an accused, this exclusionary discretion becomes engaged only where the probative value of the statement is substantially outweighed by its prejudicial effect: R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577, at p. 611.

[27] I will review further jurisprudence relevant to the analysis in this case below.

The positions of the parties

The Crown’s position

[28] The Crown abandons its earlier position that both the complainant’s audio recorded statement and the statements reduced to writing by PC Morin may both be admitted. It now seeks solely to have the audio recorded statement admitted. The Crown argues that this hearsay statement meets the standard of threshold reliability through the opportunity to test the statement through cross-examination and evidence which corroborates it.

[29] The Crown emphasizes the jurisprudence which has held that the most important marker of procedural reliability is the ability to cross-examine the declarant (including R. v. Youvarajah, 2013 SCC 41 at para. 33; Khelawon at paras. 66 and 92; Bradshaw at para. 90). Further, the statement is audio recorded, which alleviates concerns it may be presented inaccurately. This permits the trier of fact to assess for itself the accuracy of the hearsay statement. The Crown submits the procedural reliability markers here are sufficient to justify the admission of the statement for its truth.

[30] The Crown also submits there are other circumstantial guarantees of trustworthiness which function with corroborative evidence to demonstrate the statement’s substantive reliability. Viewed as a whole, the corroborative evidence substantially negates the possibility that the material aspects of the complainant’s statement were inaccurate or untruthful. The corroborative evidence cited by the Crown includes: 1) the accused was stopped in the car described by the complainant in her statement; 2) police found the knife described by the complainant in the possession of the accused upon arrest; 3) police found the complainant’s laptop in the possession of the accused upon arrest; 4) the complainant was injured in a way consistent with the assault she described – a cut on the right side of her nostril with a small amount of blood and redness on her neck; 5) photographs show that the complainant’s bedroom dresser was moved near her door to barricade the bedroom. This corroborative evidence rules outs the possibility that the complainant was being dishonest during her statement to the officer, such that the only likely explanation for the statement is that it is true.

[31] Ultimately, the Crown submits that the specific hearsay danger is low in this case, since the accused will have the ability to test the truthfulness and accuracy of the material aspects of the hearsay statement through the cross-examination of the complainant at trial. Further, because the statement was audio-recorded, the Crown says that the trier of fact may evaluate for herself whether the declarant’s statement was accurately recorded.

The defence position

[32] The defence argues that the Crown has not established threshold reliability. It argues that there are very significant issues with the procedural reliability of the statement, including that: 1) it was not made under oath or following a warning about the importance of telling the truth; 2) the complainant has a hearing impairment and there were no accommodations made at the time to ensure she could properly communicate what she was intending to communicate; 3) the fact that the complainant is available for cross-examination does not address the concern about the lack of contemporaneous cross-examination on the statement since she does not recall making the audio-recorded statement. There can be no meaningful cross-examination in these circumstances.

[33] With respect to substantive reliability, the defence says that the Crown’s identification of corroborating evidence is misplaced: 1) the marks on the complainant’s neck are equally consistent with her evidence about the scar left from surgery; 2) the scratches on her nose and chin are not necessarily corroborative of her statement since she does not say how her face was scratched and there is no clear indication in the audio recording how these injuries occurred; 3) the state of her bedroom as documented in the photos is immaterial when there is no indication in the statement that the disorganization seen in the photos was a product of events that evening; 4) the state of the door handle does not corroborate her account given the complainant’s evidence that it had been loose for a year; and 5) the fact that the accused was found in possession of the complainant’s laptop cannot corroborate the material issue, which is that he took it without the complainant’s permission.

[34] In all these circumstances, the defence submits that there are insufficient ways for the accuracy of the hearsay statement to be tested and it is not sufficiently reliable to be admitted for its truth.

Analysis and Decision

The hearsay dangers

[35] As indicated in Bradshaw at para. 26, in assessing the admissibility of hearsay evidence, the trial judge must identify the hearsay dangers posed by the statement. The hearsay dangers “relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity”: Bradshaw at para. 26.

[36] No issue is raised on this record with difficulties in assessing the complainant’s perception, memory, or narration at the time of the statement (though there are concerns about the impact of the complainant’s memory while testifying which I will address below). The difficulty in this case relates to the assessment of the complainant’s sincerity when the statement was given, that is, whether or not she was telling the truth. It is this particular concern that is central in assessing whether or not the hearsay dangers have been overcome.

[37] In this case, I find there are important substitutes for testing the statement despite the fact that this cannot be done with the usual process (e.g. with contemporaneous cross-examination and following an oath or affirmation). Collectively, the substitutes present in this case lead me to conclude that procedural reliability is made out because the substitutes provide me with a sufficient basis to evaluate the truth and accuracy of the hearsay statement. I will address the substitutes in this case in turn.

Opportunity to cross-examine

[38] The importance of the opportunity to cross-examine the declarant as a means of overcoming the dangers of admitting hearsay has been emphasized consistently in the jurisprudence. In R. v. Taylor, 2015 ONCA 448, at paras. 74 and 81, Watt J.A. identified this as the most important factor in assessing procedural reliability.

[39] In Khelawon, Charon J. explained at para. 41 why this factor was important to addressing the dangers posed by hearsay evidence:

… although the underlying rationale for the general exclusionary rule may not be as obvious when the declarant is available to testify, it is the same — the difficulty of testing the reliability of the out-of-court statement. The difficulty of assessing W’s out-of-court statement is the reason why it falls within the definition of hearsay and is subject to the general exclusionary rule. As one may readily appreciate, however, the degree of difficulty may be substantially alleviated in cases where the declarant is available for cross-examination on the earlier statement, particularly where an accurate record of the statement can be tendered in evidence. [emphasis added]

[40] Later, at paras. 76-81 of Khelawon, Charon J. provided this useful analysis of the court’s prior ruling in B. (K.G.), which further clarifies how this factor functions in cases, like this one, with a recanting witness:

The most important contextual factor in B. (K.G.) is the availability of the declarant. Unlike the situation in Khan or Smith, the trier of fact is in a much better position to assess the reliability of the evidence because the declarant is available to be cross-examined on his or her prior inconsistent statement. The admissibility inquiry into threshold reliability, therefore, is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence. The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross-examination. [emphasis added]

Since the declarant testifies in court, under oath or affirmation, and is available for cross-examination, the question becomes why there is any remaining concern over the reliability of the prior statement. As I have indicated earlier, necessity and reliability should not be considered in isolation. One criterion may have an impact on the other. The situation in B. (K.G.) is one example. As noted by Lamer C.J., “[p]rior inconsistent statements present vexing problems for the necessity criterion” (p. 796). Indeed, the declarant is available as a witness. Why should not the usual rule apply and the recanting witness’s sworn testimony alone go to the truth of the matter? After all, is that not the optimal test on reliability — that the witness come forth to be seen and heard, swear or affirm to tell the truth in the formal context of court proceedings, and be subjected to cross-examination? If a witness recants a prior statement and denies its truth, the default position is to conclude that the trial process has worked as intended — untruthful or inaccurate information will have been weeded out. There must be good reason to present the prior inconsistent statement as substantive proof over the sworn testimony given in court.

As we know, the Court ultimately ruled in B. (K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases, such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness. Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its hearsay form may well impact on the degree of reliability required to justify its admission. As stated by Lamer C.J. in B. (K.G.), where the hearsay evidence is a prior inconsistent statement, reliability is a “key concern” (at pp. 786-87):

The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan and Smith must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence.

Lamer C.J. went on to describe the general attributes of in-court testimony that provide the usual safeguards for reliability. He reviewed at some length the compelling reasons to prefer statements made under oath or affirmation, the value of seeing and hearing the witness in assessing credibility, the importance of having an accurate record of what was actually said, and the value of contemporaneous cross‑examination. In considering what would constitute an adequate substitute in respect of the prior inconsistent statement, he concluded (at pp. 795-96) that there will be “sufficient circumstantial guarantees of reliability” to render such statements substantively admissible where

(i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party . . . has a full opportunity to cross‑examine the witness respecting the statement . . . . Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. [emphasis added]

To say that a statement is sufficiently reliable because it is made under oath, in person, and the maker is cross-examined is somewhat of a misnomer. A lot of courtroom testimony proves to be totally unreliable. However, therein lies the safeguard — in the process that has uncovered its untrustworthiness. Hence, the presence of adequate substitutes for that process establishes a threshold of reliability and makes it safe to admit the evidence.

[41] The jurisprudence also recognizes that the ability to cross-examine a witness may be illusory in certain circumstances, and I consider the defence argument about the limits on its ability to cross-examine the complainant in this case because the complainant testified that she did not recall giving a statement to police.

[42] To be sure, the complainant did testify that she did not recall giving the police a statement. On the other hand, she also testified that she omitted telling the police about slapping her son, which strongly suggests that she has some recollection of what she said to police. Another example in her evidence which supports the conclusion that she recalled giving the audio-recorded statement was her response to the question from defence counsel “did you say that your son put his hands around your neck”. The complainant said no. She went on to explain what the officer had asked her about the physical contact with her son (demonstrating her recollection of being interviewed), and then demonstrated the gesture she said she made to show the officer how it had occurred. In my view, this demonstrates that meaningful cross-examination on the statement remained possible.

[43] Ultimately, the complainant was fully and effectively cross-examined on both the out-of-court statement and on her evidence as a whole. She agreed with defence suggestions about various things and provided additional information which presented an alternative account of how the violence unfolded. This account was favourable to the accused (see e.g. Taylor at para. 81). The complainant was far from a non-responsive witness who renders effective cross-examination on her evidence impossible.

[44] I agree with the Crown that the complainant’s evidence did not deprive the defence of the ability to cross-examine her and test the reliability of the earlier statement. Meaningful cross-examination remained possible for the defence, and this is what matters: Taylor at para. 74; R. v. Zaba, 2016 ONCA 167 at paras. 15-16; R. v. Warsame, 2012 ONSC 3927 at para. 44.

The statement is recorded

[45] It is well accepted that video recording a statement may serve as an adequate substitute for testing the truth and accuracy of the evidence.

[46] The statement in this case is audio-recorded. Although it is not important to the analysis, I note that police did make efforts to video-tape the statement which were unsuccessful.

[47] While there is no doubt that a videotape “adds a dimension that is truly valuable to the triers in their assessment of reliability” (R. v. Trieu (2005), 2005 7884 (ON CA) at para. 76 per Moldaver J.A. (as he then was)), an audio statement may also be very valuable in that assessment. In R. v. McMorris, 2020 ONCA 844, the court noted at para. 28 that adequate substitutes for testing hearsay evidence “might be a video or audio recording” [emphasis added].

[48] In Warsame, an audio-recorded statement was admitted into evidence for its truth. As noted by Ducharme J. at para. 37, while video recordings are ideal, “K.G.B. does not demand perfection as a precondition for reliability. It is clear that Chief Justice Lamer foresaw that audio-taped interviews might be admitted in these circumstances”.

[49] Similarly, in R. v. E.D., 2018 ONCJ 714, (trial decision R. v. E.D., 2019 ONCJ 34, aff’d by 2020 ONCA 633, leave to appeal to SCC refused) an audio-recorded police statement was admitted for the truth of its contents. Here, the complainant was advised that the statement could be used as evidence, and she acknowledged being warned that is it a criminal offence to obstruct the police or to make a false statement to the police during an investigation. The trial judge emphasized that the audio recording provided an accurate record of what was said to the complainant and by her, and that the sound quality of the recording was such that it was possible to hear inflections in the complainants tone which permitted the assessment of her demeanour to a degree while she spoke (see para. 19 of 2018 ONCJ 714).

[50] I find the audio recording in this case permits a meaningful assessment of what was said, how the statement was given by the complainant, her condition at the time, and the manner of questioning which produced the statement. The fact that the statement is recorded and permits an assessment of the issues I have identified means that there are similar tools for assessing the truth and accuracy of the statement as there are when evidence is given by a witness in a court proceeding. In the circumstances of this case, the lack of video recording is of minimal significance to the ability to assess the reliability of the statement.

[51] In arriving at this conclusion, I have considered the defence argument that there is no evidence that the complainant received accommodation for her hearing difficulties. While it is plain in this proceeding that the complainant suffers from considerable hearing loss, and accommodations have been made to ensure she is able to give her evidence given the need to proceed by Zoom, I have no evidence about the nature of her ability to communicate when she is face to face with people where lip-reading may assist her. There is no evidence on this record that the complainant’s hearing loss affected her communication with the officers, either at her home or at the detachment.

[52] In any event, the audio recording discloses a statement that is lucid and provides no hint of communication difficulties. I also note that the interview was done in French, the complainant’s first language. While the quality of the audio is not perfect, it is more than sufficient to permit an assessment of how the conversation proceeded and the complainant’s demeanour throughout (as evident by her tone of voice).

Oath or warning about the consequences of not telling the truth

[53] An important procedural marker of reliability may be whether the statement was given under oath, or after the declarant was warned about the consequences of not telling the truth (such as the potential for criminal charges). Here, neither of these things occurred. The Crown submits that other features of the evidence overcome this deficiency, however.

[54] In considering this argument, I am guided by the jurisprudence. For instance, in Trieu, Moldaver J.A. (as he then was) held that where a video statement is made and the witness is available for cross-examination at trial, “the oath has very little burden to shoulder in the threshold reliability assessment”: at para. 78. This direction was considered and followed in Hoffman at paras. 26-30, where the court found that an oath was not necessary to admit a statement made to police.

[55] More recently, in Taylor, Watt J.A. held:

Under the B. (K.G.) regimen, an oath is not an absolute requirement for a finding of reliability: B. (K.G.), at p. 792. Other circumstances may be sufficient to impress upon the declarant/witness the importance of telling the truth: B. (K.G.), at pp. 792 and 796. Evidence from which it can reasonably be inferred that, when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth may serve as a proxy for an oath: R. v. Trieu (2005), 2005 7884 (ON CA), 195 C.C.C. (3d) 373 (Ont. C.A.), at para. 85; and R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 74, at para. 39.

[56] As noted in Hoffman at para. 29, “[a]ssuming that meaningful cross-examination is possible, the law is clear that procedural reliability can be established in the absence of an oath”.

[57] In this case, I find that the absence of an oath prior to the statement being given is of minimal impact on the procedural reliability of the statement. Other circumstances existed which satisfy me that the complainant would have understood the importance of telling the truth.

[58] First among these is the fact that the complainant was told by PC Halle that the recorded statement at the detachment was being taken as part of an investigation where criminal charges could be laid against her son. I prefer PC Halle’s evidence on this point and accept that he so advised the complainant at both her home and at the detachment. Clearly the complainant then agreed to attend the detachment, where she was interviewed and photographed. She participated in both of those processes and there is no basis to find she did not attend voluntarily. I am satisfied that the complainant understood that her statement would be used by police in their investigation. In other words, she understood she was speaking to police about a serious matter that could have criminal consequences for her son.

[59] Second, I can see no reason on this record why the complainant would falsely implicate her son in criminal behaviour. The complainant’s devotion to her son is clear both in her statement and in her evidence in court. Her interest in protecting him in these proceedings is plain. I am not persuaded there is any basis to conclude that she might have falsely implicated her son in criminal behaviour in order to secure mental health assistance for him since her earlier efforts to do so were not successful. I note that the complainant denied that suggestion when it was put to her.

[60] It is also of some relevance that there is no evidence the complainant was under the influence of any substances or otherwise unable to understand what was happening after she called police, and why she was at the police station giving a statement and taking photographs.

[61] In all the circumstances, I am satisfied the complainant would have understood the importance of the occasion and of telling the truth. The absence of an oath or caution about the implications of lying to police are not of much significance to the procedural reliability of the recorded statement.

Conclusion on procedural reliability

[62] In the result, I find that these substitutes function effectively to replace the usual measures used in court room proceedings to promote the truth-finding process. The audio recording of the complainant’s statement therefore meets the standard of threshold reliability.

Substantive reliability

[63] Given my conclusion that the Crown has met its burden of demonstrating the procedural reliability of the hearsay statement, I need not consider whether the statement is also substantively reliable since either route may establish the threshold reliability of a hearsay statement. Because it is not necessary to do so, I decline to engage in the analysis of substantive reliability.

Probative v. prejudicial analysis

[64] This issue was not argued by counsel. In any case, I am satisfied that the statement is highly probative of the issues at trial and that its probative value outweighs any prejudicial effect it might have, particularly in this judge-alone trial.

Conclusion

[65] For these reasons, the audio-recorded statement given by the complainant is admissible in evidence. The ultimate reliability of the statement remains to be assessed.

The Honourable Justice Laurie Lacelle

Date: September 24, 2021