COURT FILE NO.: 8200/20
DATE: 2021-10-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
W. Trent Wilson/S. Woods, Counsel for the Crown
- and -
SHAUN PHILLIP WILSON
Eric D. McCooeye, Counsel for the Accused
HEARD: February 1, 2, 3, 4, 5, 8, 9, 10, 11, August 9, 10, 11, 12, 13, 16, 17, 19, September 29, 2021
GAREAU J.
REASONS on voir dire
[1] The accused, Shaun Phillip Wilson, faces several charges as set out in the indictment dated June 1, 2020.
[2] A voir dire was held near the end of the trial on the application of the Crown to have a statement given by Shawn Seymour to the Ontario Provincial Police introduced as evidence at the trial proper on the basis of the principled exception to the hearsay rule. This was necessitated by the fact that Shawn Seymour could not be located by police authorities and therefore unavailable to give viva voce evidence at the trial of this matter.
[3] On August 19, 2021, I released a brief decision dismissing the Crown’s application on the voir dire with more fulsome reasons to follow. These are my more fulsome reasons.
[4] The factual background is set out in my written reasons in the trial proper and I adopt this and do not intend to repeat the facts in detail. In summary, in the morning hours of January 25, 2019, the home at Unit 11, 141 Front Street, Spanish, Ontario, occupied by Teddy Seymour and Dawn Martel was broken into by two masked intruders, and Ms. Martel and Mr. Seymour were beaten and badly injured. The son of Teddy Seymour, Shawn Seymour, was residing at the time at Unit 5, 141 Front Street, in close proximity, with Jammie Lynn Sherwin, who was previously involved in a relationship with Teddy Seymour. Both Shawn Seymour and Jammie Lynn Sherwin were arrested on January 25, 2019 and charged with criminal offences relating to the break in and assault. After further investigation they were subsequently released from custody with the charges against them being dropped.
[5] While he was detained in custody, Shawn Seymour provided an audio/videotaped statement to the Ontario Provincial Police. This statement was given to Detective Sgt. Mike Laxton of the Ontario Provincial Police. During the course of the voir dire, the audio/video recording was played for the court and entered as Exhibit V-1. The transcript of this statement made by Shawn Seymour was entered as Exhibit V-2 on the voir dire.
[6] The statement given by Shawn Seymour to the Ontario Provincial Police was lengthy. It starts at 6:10 p.m. on January 25, 2019 and concludes at 1:06 a.m. on January 26, 2019. The transcript of the interview (Exhibit V-2) spans some 113 pages.
[7] The criminal record for Shawn Seymour was entered as Exhibit V-3 on the voir dire. This record reveals a record for offences such as failing to appear, indicating a lack of respect for court authority and for the court process.
[8] As set out in my reasons on the trial proper, Shawn Seymour as an alternate suspect looms large in the trial of this matter and it was in fact Shawn Seymour who was first arrested for the criminal offences committed against his father, Teddy Seymour. The trial evidence was applied to the voir dire. From that evidence the court is aware that there is much animus between Shawn Seymour and his father. Shawn Seymour had been kicked out of his father’s home and there was no contact between them at the time of the incident. Days prior to the January 25, 2019 incident, Shawn Seymour was observed outside the residence where he was residing, swinging a bat and threatening to kill his father. Teddy Seymour was in fact assaulted with a bat in his home on the morning of January 25, 2019.
[9] As to why Shawn Seymour was initially arrested by the Ontario Provincial Police for the break and entry, assault and theft at Unit 11, 141 Front Street, Officer Timmermans of the OPP summarized in his evidence that there was a blood-like substance outside Unit 5, that Shawn Seymour did not respond to requests by the police to leave his home and surrender to the police, and that there was a “history” between Shawn Seymour and his father.
[10] Although I am satisfied that diligent efforts were made by police authorities to locate Shawn Seymour to enable him to testify at the trial, Mr. Seymour could not be located which necessitated the application by the Crown to have his statement to police introduced as evidence in the trial proper. Not much time was spent either by counsel or the court on the issue of necessity. As the jurisprudence indicates, this test must be met on the balance of probabilities and the bar is a relatively low one. Shawn Seymour’s father testified that he had not heard from his son for some time nor did he know where he was. There was no information available that would assist the court or police authorities for that matter in locating Shawn Seymour. He simply could not be located to give evidence to the court so his previous statement that he gave to the police had to be relied upon. The test of necessity was clearly met in the case at bar.
[11] The decision on the voir dire reduced itself to the issue of the threshold reliability of the statement and whether the Crown has established threshold reliability on a balance of probabilities.
[12] As I indicated in my brief written decision released on August 19, 2021, I concluded that the test of threshold reliability had not been met.
[13] As noted in paragraph 53 of R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity.
[14] As to the inquiry the court should make as to the admissibility of the statement on the voir dire, at paragraph 189 of R. v. K.G.B., the Supreme Court of Canada indicated that “the judge conducting the voir dire should not weigh the credibility of the statement any more than would the judge conducting a voir dire concerning a confession to determine whether it is truthful. The voir dire simply ensures that the circumstances surrounding the making of the statement are such that it should be admitted. It is for the jury to determine whether the prior statement should be accepted as true.”
[15] The dangers of hearsay evidence were identified by the court in K.G.B. as the absence of an oath, presence (essentially whether there is a record such as videotaping) and contemporaneous cross-examination. As noted in paragraph 171 of the K.G.B. decision, “the videotaping of the statement provides such a complete record not only of the questions posed and the answers given, but of the demeanour of the witness throughout the interview that little can be said to warrant its exclusion based on the inability to assess the demeanour of the witness when the statement was given.”
[16] In the case at bar the element of “presence”, one of the indicia guaranteeing reliability, is met in that the statement given by Shawn Seymour was video and audio recorded.
[17] The other two indicia guaranteeing reliability, namely, the statement being under oath and contemporaneous cross-examination, are absent in Mr. Seymour’s statement to the police.
[18] As noted in the headnote in R. v. Khelawon 2006 SCC 57, 2006 Carswell Ont. 7825 (SCC), “In determining admissibility of hearsay under the principled approach, all relevant factors should be considered. Under the circumstances, S’s unavailability for cross-examination posed significant limitations on the accused’s ability to test evidence and on the trier of fact’s ability to assess it.”
[19] Given the evidence received at trial applied to the voir dire, including Shawn Seymour’s relationship with his father, the circumstances surrounding his arrest, his conduct just days prior to the incident where he was seen swinging a bat threatening to kill his father, what he knew about the money his father had in his home, and the anger he had toward his father concerning Jammie Lynn Sherwin and his 16-year-old girlfriend who his father befriended, the court has serious concerns about the absence of an oath or the inability to cross-examine Shawn Seymour on the statement that he gave. As noted in R. v. Bradshaw, 2017 Carswell B.C. 1743 (SCC) at paragraph 31, in order for the court not to be concerned about the absence of cross-examination in assessing the threshold issue of reliability, the court must be satisfied that the statement is so reliable that contemporaneous cross-examination would be of no benefit, essentially that it would add little or nothing to the process. In assessing all of the evidence, this court cannot reach that conclusion regarding the statement given by Shawn Seymour to the Ontario Provincial Police.
[20] The circumstances in which Mr. Seymour was providing his statement to the police are that he was charged with the attempted murder of his father, Teddy Seymour. He is not at the police station as an independent witness, volunteering assistance to the police. Rather, he is at the police station as a person under arrest. Shawn Seymour benefits from fabricating the truth in an attempt to secure his release from custody. On the facts before the court, it cannot be concluded that the absence of an oath or contemporaneous cross-examination, safeguards to ensure reliability, can be overcome by the fact that Mr. Seymour’s statement is so reliable that it could not be that he is not telling the truth. The inability to test the reliability of the statement given by Shawn Seymour to the OPP is, in my view, a real concern in the absence of the oath and cross-examination.
[21] On the facts of this case and the circumstances of this case, Shawn Seymour’s unavailability for cross-examination on the statement poses significant limitations on the trier of facts ability to assess the ultimate reliability of the statement and therefore the statement should not be received into evidence.
[22] Accordingly, the Crown’s application to have the statement given by Shawn Seymour to the Ontario Provincial Police on January 25, 2019 introduced into evidence at the trial is denied.
Gareau J.
Released: October 13, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHAUN PHILLIP WILSON
REASONS on voir dire
Gareau J.
Released: October 13, 2021