COURT FILE NO.: 8306/20

DATE: 2021-10-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

K. Pritchard/M. Talbot, Counsel for the Crown

• and -

THOMAS MARTTINEN

M. Carter, Counsel for the Accused

HEARD: September 24 and 27, 2021

Varpio J.

REASONS ON HEARSAY APPLICATION

OVERVIEW

[1] Mr. Marttinen stands charged with arson and manslaughter flowing from a rooming house fire that occurred on June 17, 2019. The trial of this matter started on September 20, 2021. Mr. Pascal Houle and Ms. Kathleen Houle were scheduled to be Crown witnesses. They testified at the preliminary hearing which was held on September 28 and 29, 2020. In between the preliminary hearing and the trial, the Houles disappeared and police have not been able to locate them.

[2] At the end of the Crown’s case, the Crown sought to tender audio recordings of the Houles’ preliminary hearing evidence pursuant to the principled exception to the rule barring the admission of hearsay evidence.

[3] On September 24 and 27, I heard the application. On September 27, 2021, I granted the application with reasons to follow.

[4] These are those reasons.

FACTS

[5] This matter was set for trial on September 20, 2021. Mr. Marttinen was charged with arson and manslaughter as a result of a rooming house fire that occurred on June 17, 2019. The rooming house was located at 549 Cathcart Street in Sault Ste. Marie, Ontario. Mr. Bernie Agawa died in the fire.

[6] Mr. Pascal and Ms. Kathleen Houle were tenants in the rooming house at the time of the fire.

The Preliminary Hearing

[7] The Houles were served with subpoenas for the preliminary hearing. The Houles were served at 1547 Trunk Road, Room 23. This address is a motel. The Houles failed to attend the preliminary hearing and warrants for their arrest were issued by the preliminary hearing judge on September 28, 2020.

[8] The Houles were arrested on September 29, 2020 pursuant to that warrant and gave testimony at the preliminary hearing that same day. They were cross-examined by defence counsel on issues that are before the court today.

[9] The Houles both testified, inter alia, that they heard Mr. Marttinen make statements prior to the fire whereby he would indicate that he would burn down the rooming house. These statements occurred, per Mr. Houle, a few days before the fire.

Mr. Houle’s Outstanding Charges

[10] On December 25, 2019, Mr. Houle was charged with mischief and assault. He was released on a promise to appear with a court date of February 3, 2020. He failed to attend on that date.

[11] In March of 2020, the COVID pandemic began. Although I have no specific evidence with respect to Mr. Houle’s appearances, matters in courts across the country were remanded from time to time to ensure that COVID concerns were met. On April 6, 2020, Mr. Houle had a court date whereupon he failed to appear. A bench summons was issued on April 13, 2021 with an attendance date of July 6, 2021. Again, Mr. Houle failed to appear on July 6, 2021. Mr. Houle’s address as described on these charges and summonses was 353 John Street in Sault Ste. Marie, Ontario.

[12] A CDSA charge was added to the jeopardy that Mr. Houle is facing.

The Subpoenas for this Trial

[13] A trial date was set for September 20, 2021. Subpoenas for the Houles were issued on August 16, 2021.

Evidence of Sgt. David Sguigna

[14] Sgt. David Sguigna testified on the application. He testified that the Sault Ste. Marie Police Service (“SSMPS”) made several attempts to check addresses where the Houles were known to reside. Specifically, Sgt. Sguigna testified that the SSMPS checked at the John Street address, the Cathcart address as well as two addresses on James Street in the City of Sault Ste. Marie.

[15] Sgt. Sguigna testified that the SSMPS came to understand that the Houles were, in the summer of 2021, residing at a North Bay shelter. The SSMPS had the North Bay Police Service (“NBPS”) check the North Bay shelter on September 14, 2021. NBPS advised SSMPS that the shelter confirmed that the Houles resided at the shelter in the summer of 2021, but that shelter staff believed that the Houles had returned to the Sault Ste. Marie area.

[16] Sgt. Suigna testified that he has personally checked provincial databases for the Houles with no success. Sgt. Sguigna advised that SSMPS databases are currently unable to be accessed due to technological issues. He also personally checked 353 John Street the day this application was heard and was advised by the landlord that the landlord had not seen the Houles since the summer of 2020.

[17] Sgt. Sguigna testified that Mr. Houle has a prior conviction for failing to appear for court from 2012.

[18] In cross-examination, Sgt. Sguigna confirmed that he made no internet or social media searches. Sgt. Sguigna testified that the Houles had no phone numbers listed on file with the SSMPS. Sgt. Sguigna testified that he did not check Canada411 because he did not think that such a search would be successful.

[19] Sgt. Sguigna was taken to SSMPS documents that list service attempts for court documents. One such document for Mr. Houle had a court date of July 6, 2021. This document appears to list service attempts related to Mr. Houle’s outstanding chares. This document contains an entry that simply lists a Rouyn-Noranda address. The Rouyn-Noranda entry had no information attached other than the address (i.e. no officer, no source for the information, no contact name, no date or time, no possible relevant information, etc.). This document also contains two other completed entries that list date, time, address, contact person, the officer making the service attempt and information received. Put another way, the Rouyn-Noranda address was a simple address listed whereas the other two entries on the sheet had other particulars listed as well. It must also be noted that while the unattributed address appeared on the attempted service sheet for Mr. Houle’s outstanding charges, it did not appear on Ms. Houle or Mr. Houle’s service attempt sheets for their trial subpoenas.

[20] Sgt. Sguigna testified in cross-examination that he did not check the federal prosecutor’s file for an address where Mr. Houle could be located.

POSITIONS OF THE PARTIES

[21] The Crown argues that the test for admission of hearsay evidence has been met in the circumstances. First, the evidence is necessary because the Houles were not served with subpoenas despite reasonable efforts. Second, the evidence meets the test for reliability because the evidence is an audio recording from a preliminary hearing which was under oath and was subject to contemporaneous cross-examination before a judge. Finally, the probative value associated with the admission of the evidence exceeds the prejudicial effect associated with tendering same.

[22] The accused argues that the evidence fails the necessity test because insufficient efforts were made to serve the subpoenas. Internet searches ought to have been performed and the Rouyn-Noranda address ought to have been investigated. The Federal Crown ought to have been consulted. The accused also submits that the reliability test has not been met because had counsel known the witnesses would not show up for trial, counsel would have cross-examined the witnesses differently at the preliminary hearing. The accused, however, concedes that the reliability argument is weak given pronouncements by the Supreme Court of Canada and the Ontario Court of Appeal.

THE GOVERNING LAW

General Principles

[23] The principled exception to the bar against the admission of hearsay evidence demands that a party seeking to tender hearsay evidence must demonstrate that the evidence in question is both necessary and reliable. That party must also satisfy the court that a residual cost/benefit analysis tips the balance in favour of admitting said evidence. These principles were clearly enunciated by the Ontario Court of Appeal in R. v. Mohammed 2018 ONCA 966, 2018 O.J. 6302 at para 88:

The principles that control our decision on this issue are those that govern the reception of hearsay under the principled exception. That exception is engaged when the proponent of the evidence establishes, on a balance of probabilities, that the twin and cumulative requirements of necessity and reliability have been satisfied. However, removal of the hearsay rule as a bar to admissibility does not mean that the evidence will be received. For it may be that the application of the general cost-benefit analysis mentioned in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, will result in exclusion despite satisfaction of the requirements of the principled exception: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 85.

Necessity

[24] The concept of necessity been described many times by the Supreme Court of Canada. In R. v. Couture 2007 SCC 28 at para. 79, Charron J., writing for the majority, described necessity as follows:

The criterion of necessity is intended to ensure that the evidence presented to the court be in the best available form, usually by calling the maker of the statement as a witness. There is no issue here that the Crown has established necessity because Darlene Couture is neither competent nor compellable to testify for the prosecution. If the evidence is to be adduced at all by the Crown, it can only be presented in its hearsay form. The hearsay admissibility inquiry in this case turns rather on the question of threshold reliability.

[25] At paras 68 and 72 of R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, the Supreme Court reaffirmed its view of necessity as previously described in Khelawon:

In Khelawon, necessity was conceded. Justice Charron nonetheless took care to note that in an appropriate case, the court in deciding the question of necessity may well question whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant in a manner that also preserves the rights of the other party. [para. 104]

This is the kind of "appropriate case" contemplated by Khelawon. And the answer is that the police made no effort at all to secure the evidence of the declarant: they never sought to interview or even find him, though he gave them his address. Moreover, there was no explanation offered as to why no efforts were made to locate the declarant.

Moreover, the number of callers could also inform necessity. The Crown cannot be expected, where there are numerous declarants, to locate and convince most or all to testify at trial, even in the unlikely event that they have supplied their addresses - as in this case. And it is important to remember that the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, and R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764.

[26] Based on the foregoing, the necessity requirement demands that reasonable efforts are made to procure the evidence for trial. This principle was revisited at the appellate level by the Manitoba Court of Appeal in R. v. Atkinson, 2018 MBCA 136 at paras 15 and 58:

After hearing testimony from Sgt. Bauer regarding the circumstances surrounding his service of the subpoena on Garneau and his subsequent attempts to locate him as well as considering the wording of the subpoena, the trial judge admitted the evidence pursuant to both section 715(1) and the principled approach. After the admission of that evidence, the Crown closed its case.

In this case, the trial judge considered the efforts to locate Garneau in the context of the necessity requirement under the principled approach as well as trial fairness. He concluded that the efforts made were reasonable and appropriate. He found that, in the circumstances, there was nothing approaching bad faith or even a lack of diligence in the manner in which the Crown or the police had proceeded. In my view, the trial judge did not err in his assessment.

[27] Other cases have described situations where reasonable efforts were undertaken in order to procure a witness. For example, recent but intense efforts to locate a witness were considered sufficient to prove reasonable efforts by the authorities under the necessity rubric in R. v. Belance [2007] O.J. No. 5295 at paras 10, 13 and 20. Equally, in R. v. May [2012] B.C.J. No. 1102 (paras. 8, 9, 21 and 25 – 27), the court found that attempted service of a subpoena at a number of addresses was sufficient to prove that reasonable efforts were undertaken. Accordingly, the necessity test was met. A similar analysis occurred in R. v. Russell-Connelly 2019 ONSC 2994 at paras. 32 to 34.

[28] By way of contrast, in R. v. A.(A.) 2015 ONSC 2467 at paras 23 – 26 and para 53, the court found that reasonable efforts were not undertaken by authorities when, inter alia, the witness in question was questioned by police shortly before trial but the authorities failed to subpoena that witness despite a concern that the witness might not attend. Accordingly, the Crown could not clear the necessity threshold because it failed prove that it had undertaken reasonable efforts to subpoena the absconding witness.

Reliability

[29] In Mohammed, The Ontario Court of Appeal was dealing with an appeal of a decision to admit preliminary hearing transcripts at trial. In upholding the trial judge’s decision to admit the evidence, the Court of Appeal described the interplay of procedural and substantive reliability at paras 99 to 101:

A party proposing the reception of hearsay in accordance with the principled exception may establish the reliability prerequisite by different means. Procedural reliability. Substantive reliability. These mechanisms or approaches to proof of reliability are not mutually exclusive but work in tandem: Bradshaw, at para. 32; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 52.

Procedural reliability is established when there are adequate substitutes for testing the evidence tendered for admission given that the declarant has not provided that evidence in court, under oath, in the presence of the trier of fact and under the scrutiny of contemporaneous cross-examination. These substitutes for traditional safeguards, such as video recording the statement, the presence of an oath, and a warning about the consequences of lying must provide a satisfactory basis for the trier of fact to rationally evaluate the truthfulness and accuracy of the hearsay statement. That said, some form of cross-examination of the declarant is usually required, whether at a preliminary inquiry or at trial: Bradshaw, at para. 28; Khelawon, at paras. 63 and 66; Hawkins, at para. 75; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95.

Substantive reliability is established by showing that the statement proposed for admission is inherently trustworthy. To determine inherent trustworthiness, a court can consider the circumstances in which the statement was made, as well as any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30; Khelawon, at paras. 4, 62 and 94-100.

[30] At paras. 109 and 110, the court made clear that preliminary hearing testimony will generally satisfy the reliability concerns outlined in the jurisprudence:

As a general rule, testimony given at a preliminary inquiry will usually satisfy the threshold reliability prerequisite of the principled exception to the hearsay rule: Hawkins, at paras. 76-77. McDermott's evidence was given under oath, in the presence of the appellant. McDermott was subject to cross-examination by defence counsel. The inquiry involved the same issues and the same parties. Although the trier of fact at trial was not present to observe proceedings at the preliminary inquiry, it was present when McDermott testified at trial and witnessed his cross-examination on his preliminary inquiry testimony.

There is no reason to depart from the general rule in this case. McDermott's preliminary inquiry evidence satisfied the threshold reliability prerequisite of the principled exception to the hearsay rule. [Emphasis added]

The Internet

[31] Locating people via the internet, especially social media, has become the subject of litigation in the recent past. The courts have begun to take judicial notice of the fact that internet searches, especially social media searches, are not valuable search tools in all situations. For example, Goldstein J. stated at paras 43 and 44 of R. v. Papascotiriou-Lantaeigne, 2017 ONSC 6251,

There is no admissible evidence that Branco Krieger exists.

Mr. Papasotiriou is able to give evidence that he saw a profile under the name "Branco" on Diaper Bois. He is also able to give evidence that he saw a profile on Facebook under the name "Branco Krieger". I am aware that Mr. Papasotiriou opined in his affidavit (in itself problematic) that "Branco" from Diaper Bois and "Branco Krieger" from Facebook are the same people.

That said, I think it is obvious that evidence that a profile exists on a website (or even two websites) is not evidence that the person posting the profile is the person he or she claims to be. I think I can take judicial notice that the Internet is rife with people creating profiles where they pretend to be other people. I agree with this passage from the Crown's Response:

For all the Applicants can actually tell the Court, if Mr. Papasotiriou-Lanteigne really did have the internet communication he alleges, he could just as well have been "speaking" to a 15 year old girl in Australia named Sheila, or an overweight 75 year old senior in Germany named Fritz, as to a trim and fit young man in his early 30's in Brazil named Branco.

ANALYSIS

Necessity

[32] With respect to the test for necessity, I am content that the Crown and the SSMPS have made reasonable efforts to locate the Houles. They checked all known addresses in both Sault Ste. Marie and North Bay. They appear to have done so on a number of occasions, including on the date of the application.

[33] With respect to the Rouyn-Noranda address, while the authorities could have checked that address, the failure to do so does not render SSMPS efforts unreasonable. The significance of the Rouyn-Noranda address is unclear from the attempted service document. It does not list a date, an officer, why the address is listed on the sheet or any other pertinent information. Absent such information, there was no need for the authorities to check this address as there is no specified reason for why the address is on the sheet. The failure to follow-up on this address, when looked at in conjunction with the considerable efforts undertaken to find the Houles, does not render the Crown’s attempts to locate the witnesses unreasonable.

[34] Equally, the failure to perform an internet search is insignificant in the circumstances. The Houles are of no fixed address and, as a result, the fact that they appear to have no phone number makes considerable sense. Performing an internet search hoping to get an address or even a picture of recent location on a social media page would thus not likely bear fruit because people without the means to pay for a phone or for rent are unlikely to be avid users of social media given the incumbent need for a phone and/or computer. This is compounded by the fact that, as noted in R. v. Papascotiriou-Lantaeigne, the internet can provide inaccurate information.

[35] Finally, the failure to check with the federal prosecutor does not render the steps undertaken unreasonable. Considerable effort was expended to search for the Houles and the failure to pursue a specific source of possible information does not mean that the entire effort to locate the Houles was unreasonable.

[36] Therefore, when I examine the steps undertaken by authorities to locate the Houles, the failure to check the Rouyn-Noranda address, the failure to perform internet searches and the failure to check with the federal prosecutor have negligible impact upon my analysis. Accordingly, I find that the police efforts to locate the Houles were reasonable in the circumstances and that the hearsay evidence in question clears the necessity threshold.

Reliability

[37] The evidence meets the test for threshold reliable for the reasons described in Mohammed. In fact, the accused effectively conceded this point, but I note the following about the Houles’ evidence:

1. The evidence was under oath;
2. The evidence was subject to contemporaneous cross-examination;
3. The evidence was recorded via both audio recording and by a court reporter;
4. The audio recording permits me to hear voice inflection and other issues that reveal the witness’ demeanor;
5. The issues that were canvassed at the preliminary hearing are issues being dealt with at trial; and
6. The accused had the opportunity to cross-examine the Houles fully.

[38] The fact that Mr. Houle has a dated criminal record for failing to appear for court and has outstanding charges is a negligible consideration that has a minimal impact upon my analysis.

[39] Ergo, the test for threshold reliability is met and I need not consider substantive reliability.

Probative Value and Prejudicial Effect

[40] The residual test balancing probative value and prejudicial effect is easily met in this instance. The probative value of the evidence is important because:

1. It is the only evidence of Mr. Marttinen’s statements to the Houles;
2. Those statements contain an admission of intent;
3. The statements were made in relatively close proximity to June 17, 2019; and
4. On June 17, 2019, the rooming house was set ablaze.

[41] The prejudicial effect of admitting the evidence is negligible because, as a trial judge, I am not liable to use this evidence for improper purposes or to draw impermissible inferences.

[42] Accordingly, the balance of probative value and prejudicial effect easily tips in favour of admitting the preliminary hearing audio recordings of Ms. Kathleen Houle and Mr. Pascal Houle into evidence.

CONCLUSION

[43] The audio recordings of the preliminary hearing evidence of Ms. Kathleen Houle and Mr. Pascal Houle given September 29, 2021 are hereby admitted into evidence.

Varpio J.

Released: October 7, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THOMAS MARTTINEN

REASONS ON HEARSAY APPLICATION

Varpio J.

Released: October 7, 2021