RULING ON AN APPLICATION TO ADMIT AN OUT OF COURT STATEMENT FOR THE TRUTH OF ITS CONTENTS

B.P.O’Marra J.

OVERVIEW

[1] The respondent is charged with second degree murder related to a shooting incident on November 18, 2018. Tanya Barton provided an affirmed, videotaped statement to the police on November 20, 2018 that implicated the respondent in the shooting. She passed away on April 2, 2019 as a result of a drug overdose. The Crown applied to have her out of court statement admitted at the respondent’s trial for the truth of its contents.

[2] On September 15, 2021, I dismissed the application. These are my reasons.

THE CIRCUMSTANCES LEADING UP TO AND INCLUDING THE OUT OF COURT STATEMENT AND THE AFTERMATH

[3] On November 18, 2018, members of the Toronto Police Service (TPS) responded to a report of a shooting in a community housing building. The deceased victim, Cardinal Licorish, was found on the 5th floor stairwell. He had sustained at least three gunshot wounds. At the scene, the police recovered items including spent cartridge casings, a digital scale, a wad of cash and 28.4 grams of cocaine.

[4] Tristan Braithwaite was with the victim at the time of the shooting. He told police that the victim was involved in the drug trade and was at that location for a drug transaction. He said there was a brief altercation with two unknown males in the stairwell just before the shooting. He fled down the stairs and did not see who shot the victim. He later identified the respondent and J.C. (a young person) as the two males involved in the altercation.

[5] Tanya Barton gave an affirmed and videotaped statement to the police. She said that she had seen the respondent (known to her as Chris) and J.C. (known to her as Babyface Tony) in the building that day. She said that she entered the stairwell and heard the voice of the victim (known to her as Brian or Gucci). She next heard gunshots and then saw “Chris” rush past her with a gun in his hand. She knew that all three men were involved in the drug trade.

[6] Mr. Braithwaite and Ms. Barton later identified the two males that they had seen in the hallway on the security video for the building. One was in a red jacket and the other in a black jacket. The two males on the video can be seen touching a door as they exited the building. Fingerprints from that door matched the respondent and J.C.

[7] Two males wearing the red and black jackets are seen on a surveillance video hailing a cab outside of the apartment building moments after the shooting. Surveillance video from the cab clearly shows the faces of the two men. They were identified as the respondent and J.C. The cab was directed to the vicinity of J.C.’s residence. A search of his residence by police yielded a red and a black jacket behind the furnace. Both items had gunshot residue on them.

[8] The respondent was arrested in Sudbury on January 17, 2019. At the time of his arrest he was in possession of a semi-automatic handgun, $8,400 in cash, a digital scale and 6 grams of white powder believed to be cocaine.

[9] J.C. was tried before Justice M.F. Brown of this court sitting as a Youth Criminal Justice Court. On November 19, 2020, J.C. was found not guilty of second degree murder but guilty of being an accessory after the fact to murder.

THE OUT OF COURT STATEMENT

[10] Detective Dave Dickinson of the TPS was one of the lead officers on this case. His first involvement was on the day of the homicide. On November 20, 2018, he received information that Tanya Barton was in custody on an unrelated matter and had information about the homicide. Before meeting her, his understanding was that she had actually seen the shooting. She was in custody for an allegation of theft on the basis of either a bench warrant or a warrant in the first instance. Detective Dickinson testified that he did not know what her bail status was. He understood that she would meet with him and his partner, Detective Paul Worden (since retired), after her court appearance to provide a statement. Later that afternoon she was released on her own recognizance as Detectives Dickinson and Worden sat in the courtroom. Detective Dickinson had been told by an assistant Crown attorney that Ms. Barton would be released.

[11] Ms. Barton had an extensive criminal record that I will refer to later in some detail. The Crown package for her current charge included a recommendation by the police that her release on bail should be opposed. That is obviously not binding on the Crown. There was no evidence on this application as to whether her speedy release on her own recognizance was linked to her anticipated assistance in the homicide investigation.

[12] After she was released, the officers accompanied her to the cell area to pick up her property. The three of them then walked across the street to the TPS headquarters where the interview took place. Both officers described Ms. Barton as sober and coherent. Detective Dickinson testified that he was aware that she had a criminal record but could not recall the particulars. He said that her bail status and her current theft allegation were not discussed. The statement was recorded on video. It started at 2:54 p.m. and concluded at 3:46 p.m. Ms. Barton was affirmed at the outset by a commissioner for the taking of oaths after being cautioned about the consequences of providing false information to the police. In the course of the interview she was asked to view brief clips from video surveillance in areas close to where the shooting had occurred. She identified certain persons from those video excerpts including the respondent. The police were unsuccessful in arranging a further interview with Ms. Barton to have her view an appropriate photo array to see if she recognized anyone. She had also told the police she would provide some relevant phone numbers on a later date. She could not be contacted or located despite efforts by the police.

[13] Ms. Barton had an extensive criminal record that commenced in 1998. The offences can be categorized as follows:

• Crimes of dishonesty x12 (including thefts and break and enters and a sentence of two years for break and enter in 2012);

• Breaches of court orders x19 (including failing to appear, breach of a conditional sentence order and breaches of recognizance and probation);

• Public mischief and obstruct police x4;

• Crimes of violence x3 (including bodily harm and weapons); and

• Drug offences x3 (including one of possession for the purpose of trafficking).

[14] At the separate trial of J.C., counsel agreed that Ms. Barton’s video statement met the standard for admissibility as set out in R. v. Bradshaw, 2017 SCC 35, 411 D.L.R. (4th) 491. Her video was admitted on that basis. The issue of the ultimate reliability of the video statement was contested at that trial. Counsel on the matter before me advised that the trial judge in J.C. was not informed of the nature and extent of Ms. Barton’s criminal record. In that trial there was an admission that it was the respondent she saw in the video. The significant issue was her identification of the person in the stairwell, who she says was Chris.

ANALYSIS

[15] The principled exception to the admission of hearsay for the truth of its contents rests on consideration of necessity and threshold reliability. The onus is on the proponent, on a balance of probabilities. The inquiry takes on a constitutional dimension for the defence as it may impact the ability to make full answer and defence, which in turn affects the right to a fair trial. Trial fairness involves more than the rights of the accused. The necessity of the hearsay evidence is established since the witness is deceased.

[16] Admissibility relates to threshold reliability and not to ultimate reliability. The issue is whether the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness: R. v. Khelawon, 2006 SCC 57, 274 D.L.R. (4th) 385, at paras. 47-51 .. The issue then is whether threshold reliability has been established. Threshold reliability has been established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulties of testing it. These dangers can be overcome by showing that (1) there are adequate substitutes for testing the truth and accuracy (procedural reliability) or (2) 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. To determine whether substantive reliability is established, the trial judge can consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with the statement. 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. The judge must be satisfied that the statement is so reliable that contemporaneous cross-examination would add little, if anything, to the process: R. v. Bradshaw, at paras. 4, 27, 31 and 54.

[17] The applicant has referred to a list of available items of evidence that confirm or corroborate material aspects of the hearsay statement. The respondent has referred to a list of inconsistencies both within the statement itself and also to other available evidence. The respondent refers to the criminal record of Ms. Barton as evidence of her unreliability. In my analysis I must not stray into an assessment of ultimate reliability at this preliminary stage.

[18] In terms of procedural reliability, the declarant’s statement was recorded in its entirety. She affirmed that she would tell the truth after being cautioned about misleading or untruthful information. The police did not ask leading questions.

[19] In terms of substantive reliability, the most significant impediments relate to her custodial status, her criminal record and whether she had a motive to provide information to the police to obtain her release. The officers who interviewed her have denied that there was any discussion of her bail status or that they intervened on her behalf to have her released. I have no reason to doubt that evidence. However, based on her criminal record and the recommendation of the police who had arrested her for the theft charge, she initially faced at least a show cause hearing and a denial of bail. In very short order and with no further explanation she went from there to a release on her own recognizance. She was then escorted across the street to provide her statement. She had made it known when she was in custody that day that she had important information about the homicide. Detective Dickinson had indirect information before he first met her that she had actually witnessed the shooting. That was not what she later told him. It may well be that she was not offered early release by the Crown or any other police officer in return for her anticipated assistance on the homicide investigation. Even with her extensive record, and the initial position to oppose bail, it would not be unreasonable or improper for the Crown to agree to her release on the relatively minor charge of theft so that she would be free to provide a statement on the homicide. However, it must also be said that she would reasonably believe that she could be released that day by offering to provide a statement even if no person in authority made any promises to her. She would have a motive and personal interest in offering to assist the police in this matter.

[20] The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement or on their motives for making the statement has been described as “the most powerful factor favouring admissibility”: see R. v. Couture, 2007 SCC 28, 280 DLR (4th) 577, at para 95; R. v. Rowe, 2021 ONCA 684, at para 53. If the statement of the deceased declarant were to be admitted at this trial, the defence would have no means to explore this important issue in cross-examination. In my view this would seriously impair the respondent’s right to make full answer and defence. It cannot be said that the statement is so reliable that contemporaneous cross-examination would add but little to the process.

RESULT

[21] The application is dismissed. I am grateful for the helpful materials and submissions of both counsel.

O’Marra. J

B.P.O’MARRA J.

Released: October 13, 2021

COURT FILE NO.: CR-21-30000018-0000

DATE: 20211013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

RAHEEM MOSELEY

Respondent

Ruling on an application to admit and out of court statement for the truth of its contents

B.P.O’MARRA J.

Released: October 13, 2021

R. v. Moseley, 2021 ONSC 6798

Case Summary

RULING ON AN APPLICATION TO ADMIT AN OUT OF COURT STATEMENT FOR THE TRUTH OF ITS CONTENTS

OVERVIEW

THE CIRCUMSTANCES LEADING UP TO AND INCLUDING THE OUT OF COURT STATEMENT AND THE AFTERMATH

THE OUT OF COURT STATEMENT

ANALYSIS

RESULT

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1