Court File and Parties
COURT FILE NO.: 4685/19 DATE: 2021-11-29 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. J.P.B., C.G.B., S.J.A., C.L., and W.J.V.
BEFORE: The Honourable Justice Robert B. Reid
COUNSEL: P. Vadacchino and C. Lapointe, Counsel, for the Crown, Applicant S. Buchanan, Counsel, for J.P.B., Respondent M. Peterson, Counsel, for C.G.B., Respondent B. Simpson, Counsel, for S.J.A., Respondent E. Gok, Counsel, for C.L., Respondent D. Protomanni, Counsel, for W.J.V., Respondent
HEARD: November 8-10, 2021
RULING ON KHELAWON APPLICATIONS
[1] The Crown applies for a ruling permitting the admission into evidence of two out-of-court statements for the truth of their contents.
[2] The application was brought after eight weeks of trial in order that evidence already given could be referenced and so that the relevance of the statements would be apparent. In addition, viva voce evidence was given by several witnesses in the voir dire.
[3] By agreement, the blended voir dire included evidence and submissions on both statements.
[4] There is no dispute that hearsay evidence is presumptively inadmissible when tendered for the truth of its contents. In the absence of the opportunity to cross-examine the maker of the statement, it can be difficult for the trier of fact to assess its truth.
[5] There is also no dispute that under certain circumstances, when both necessity and reliability are established, a hearsay statement may be admitted under the principled exception. When that is permitted, potentially valuable evidence that would otherwise be lost is available for the trier of fact. The Crown bears the onus, on the balance of probabilities, to satisfy the court that both necessity and reliability exist to offset the need for testing by cross-examination.
C.S. statement:
[6] C.S. was a former next-door neighbor of the accused J.P.B. on Fares Street in Port Colborne. She lived with her son P.L. and daughter-in-law M.M. Her nephew G.B. lived around the corner. Both G.B. and M.M. have testified at the trial as to their observations of members of the B. family and visitors to the B. residence.
[7] C.S. was contacted by Detective Constable Christopher Doherty on September 17, 2018. He identified himself as a police officer involved in an investigation into the B. family. An eleven-minute audio-recorded telephone interview took place to determine whether she had any information that would be relevant to the investigation. There was no advice to C.S. about the importance of telling the truth or other confirmation of the solemnity of the occasion.
[8] In the brief statement, C.S. answered open-ended questions about the B. family and her observations of them. C.S. provided a narrative history of what she recalled seeing.
[9] The expectation was that she would eventually meet with the police in preparation for the giving of evidence and then would testify at trial. The trial was scheduled to commence in May 2020 but because of the COVID-19 pandemic, it was rescheduled. It was again unable to proceed in January 2021. Eventually, a trial date was set for September 8, 2021.
[10] On August 11, 2021, C.S. was contacted on the telephone by Detective Constable Erin MacLean to prepare for trial. C.S. advised that she could not testify either in person or virtually because she was suffering from chronic obstructive pulmonary disease (COPD) and that she was on oxygen. Since she had an appointment with her doctor the following day, D/C MacLean asked her to get a written statement from the doctor as to her condition. No such statement was received.
[11] On September 9, 2021, D/C MacLean received a message from M.M. that on September 3, 2021, C.S. died.
Necessity:
[12] Obviously, C.S. is not able to testify. I accept the clear statement by the Ontario Court of Appeal in R. v. Rowe, [2021] O.J. No. 5051 at para. 42 that necessity is measured by availability and not by whether the evidence is important or necessary to the prosecution’s case. Therefore, the first requirement for application of the principled exception has been met by the Crown.
Reliability:
[13] The key question in this voir dire is whether threshold reliability of C.S.’s statement has been made out. To quote R. v. Baldree, 2013 SCC 35 at para. 83, the court must decide whether there exists “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”.
[14] Typically, the assessment of the accuracy of the declarant’s perception, memory, narration or his or her sincerity is tested through cross-examination. However, threshold reliability can be satisfied in other ways[^1].
[15] Two different grounds exist to establish threshold reliability which could permit the admission of the hearsay evidence. They are typically referred to as procedural and substantive reliability and can work in tandem. They are not mutually exclusive. However, as set out by the Supreme Court of Canada in R. v. Bradshaw 2017 SCC 35, [2017] S.C.J. No. 35 at para. 32, “[g]reat care must be taken to ensure that this combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers.”
[16] As to procedural reliability, the court looks for adequate substitutes for the testing of the evidence by cross-examination in order to evaluate the truth and accuracy of the hearsay statement. Typically, those substitutes include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. Cross-examination of the declarant, as for example at a preliminary inquiry or of a recanting witness at trial is also usually required. Those factors were recently restated in Rowe at para. 48 as follows:
Over time, courts have come to recognize three ways of rationally evaluating the truth and accuracy of hearsay statements from a procedural perspective: (1) the availability of the declarant to be cross-examined before the trier of fact; (2) the presence of an oath or solemn affirmation after a caution about the consequences arising from being untruthful; and (3) videotaping or recording the statement in its entirety.
[17] In this case, C.S.’s proposed evidence does not contain significant indicators of procedural reliability. It was not given under oath, it was not video recorded, there was no indicator of the importance of truthfulness and there was no cross-examination. Although it was audio recorded in its entirety, that factor alone does not permit a satisfactory evaluation of its truth and accuracy.
[18] Despite the lack of procedural reliability, substantive reliability may make the statement inherently trustworthy. The court can consider the circumstances in which the statement was made as well as corroborating or conflicting evidence. As stated in Bradshaw at para. 31:
While the standard for substantive reliability is high, “guarantee” as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty”. Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”. The level of certainty required has been articulated in different ways through this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”; “under such circumstances that even a skeptical caution would look upon it as trustworthy”; when the statement is so reliable that it is “unlikely to change under cross-examination”; when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”; when the only likely explanation is that the statement is true. [Citations omitted].
[19] The Crown relies on the fact that C.S. did not initiate the contact with the police and that she had no motive to lie or exaggerate. She was no longer a neighbour of the B. family. The Crown submits that it is unlikely that a cross-examination would be useful in that C.S. told everything she knew in the short interview. Her nephew G.B. and daughter-in-law M.M. both denied any collusion with her.
[20] Several witnesses in the trial to date have admitted to a dislike for J.P.B. Some, including C.S. herself, actively tried to have him evicted. Most testified to the noise and disarray of the B. residence and the disruptive effect of J.P.B. and his associates on the neighbourhood. Against that backdrop, even a former resident might have a motive to lie or exaggerate.
[21] On behalf of S.J.A., counsel submits that many of C.S.’s untested statements contained apparent exaggerations, which call out for cross-examination. For example, she stated that C.B. (one of the individuals that S.J.A. is alleged to have sexually assaulted) was “always being chased by a brother, being hit”; the Badawey truck “used to come all the time”; C.B. was “always bruised and hit many times”; and C.B. “always had a mark on her” (emphases added). All those comments relate to material issues in the trial and may well contain overstatements of the facts. In her statement, she intimates but does not confirm sexual activity between S.J.A. and C.B. The basis for her apparent conclusion about sexual activity could well be the subject of cross-examination. She is not clear about the time period within which the events are alleged to have occurred.
[22] The Crown submits that other witnesses have given evidence confirming many of the observations made by C.S., although not with complete consistency. The corroborating witnesses are principally the nephew and daughter-in-law of C.S.
[23] In Bradshaw, the court considered the significance of corroborative evidence from other witnesses in the reliability inquiry at para. 44:
A trial judge can only rely on corroborative evidence to establish threshold 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.
[24] Further, at para. 47 of Bradshaw, the court stated that:
[T]o overcome the hearsay dangers and establish substantive reliability corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination. Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows 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. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.
[25] In this case, the proposed evidence from C.S. does not relate to a single incident but rather to observations of a series of incidents made over the course of time. The evidence from other witnesses which is said to be corroborative is likewise of a general nature. In effect, the proposed corroboration is to the effect that similar observations were made over a similar time span as to events in a similar location. It is possible that the animus shared by C.S. and her relatives for J.P.B. coloured the comments made in her statement, making cross-examination more important. I do not find that the corroboration is so compelling as to make the accuracy of material aspects of C.S.’s statement the only likely explanation.
[26] In summary, as to the statement of C.S., I am not satisfied that it is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”. I conclude that the Crown has not satisfied its onus on a balance of probabilities that procedural or substantive reliability has been made out to the extent that it offsets the presumed need for cross-examination. This is not an appropriate case for the admission of the statement as evidence under the principled exception to the hearsay rule.
[27] Since I have concluded that the statement is not admissible, it is unnecessary to consider exercising the court’s residual discretion to exclude an otherwise admissible statement based on prejudicial effect outweighing probative value.
J.B.2 statement
[28] J.B.2 was a son of the accused, J.P.B. He is a named complainant in charges against his father relating to assault, sexual assault, unlawful confinement, and indecent exposure.
[29] J.B.2 gave an initial report to the police on August 26, 2017 when he made an unscheduled attendance at the Welland detachment of the Niagara Regional Police Service. As a result of the information he provided on that occasion, as to sexual abuse he had seen and suffered at the hands of his father, several further contacts with him were made by members of the NRPS Sexual Assault Unit. On those occasions, the investigating officers did not consider him to be in a proper mental state to give a formal statement on such personal and sensitive issues.
[30] On June 13, 2018, J.B.2 did provide a statement which was video recorded in full. It is that statement that the Crown seeks to tender as evidence at trial.
[31] On March 28, 2019, J.B.2 died.
Necessity:
[32] J.B.2 is not able to testify. As noted above regarding C.S., I accept the clear statement by the court in Rowe, at para. 42 that necessity is measured by the lack of availability and not by whether the evidence is important or necessary to the prosecution’s case. Therefore, the first requirement for application of the principled exception has been met by the Crown.
Reliability:
[33] Whether threshold reliability has been made out is the main area of dispute between the parties concerning the admissibility of the statement of J.B.2. As previously indicated, threshold reliability can be satisfied in other ways than solely through cross-examination to assess the accuracy of the declarant’s perception, memory, narration or his sincerity.
[34] Both procedural and substantive reliability, working in tandem, can be considered and in a proper case can permit the admission of hearsay evidence. Admissibility will follow when there are sufficient safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers.
[35] I have already referred to the enumeration by the court in Rowe at para. 48 of three ways to rationally evaluate the truth and accuracy of hearsay statements from a procedural perspective: (1) the availability of the declarant to be cross-examined before the trier of fact; (2) the presence of an oath or solemn affirmation after a caution about the consequences arising from being untruthful; and (3) videotaping or recording the statement in its entirety.
[36] J.B.2 voluntarily attended at the St. Catharines detachment of the NRPS by prearrangement and provided a 46-minute statement which was video recorded in full. The two interviewers identified themselves as police officers. The statement was not made under oath but it began with a direction from the police tell the truth and an acknowledgement by J.B.2 to that effect. At the end of the statement, J.B.2 confirmed his truthfulness in relating the history of abuse. The fact that the statement was given at a police station in the presence of two police officers adds gravitas to the event.
[37] The ability to see and hear a declarant on video is significant. This is especially true in this case when the police had deferred taking the statement on prior occasions to a time when they felt J.B.2 was in a proper mental and emotional state to speak. His tone, volume and demeanor permit an evaluation of his evidence despite the lack of cross-examination. Even without an oath or affirmation, there is substantial procedural reliability present in the circumstances.
[38] I turn now to substantive reliability. If sufficient facts exist, they may make the statement inherently trustworthy even if reliability is not established to an absolute certainty. The court must consider the circumstances in which the statement was made as well as corroborating or conflicting evidence. Ultimately, to quote from Bradshaw at para. 31, the question is whether the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”.
[39] It is significant that there was no ongoing police investigation at the time of the first report by J.B.2 in August 2017. He indicates in his statement that he decided to come forward to the police to deal with the circumstances of his past: “It happened, and it has to unhappen by dealing with it, so by me being here today is me dealing with it, I think, so.” In his statement, J.B.2 identifies a friend who encouraged him to report his abuse to the police. The issue of possible collusion between J.B.2 and his sister J.B. was addressed head-on by the police to which J.B.2 responded: “That’s not like that at all…”. Both J.B. and C.B.2 were cross-examined and denied colluding with J.B.2 to provide false information about their father. It is unlikely that cross-examination of J.B.2 would have added much to the record on that subject.
[40] To date in the trial, there has been evidence that in 2012, J.B. made an initial report of sexual abuse against J.P.B. involving herself and other family members. The matter was not pursued when her allegations were not supported by her siblings including J.B.2. During his statement, J.B.2 acknowledged that he lied at the time. He explained that he did so because he was scared and not ready to talk about the situation. He went on to say that he has lived with that denial but that now he is telling the truth so that he can forget about it. Since J.B.2 admitted lying, it is not an area of dispute and cross-examination is unlikely to reveal a different rationale for having done so.
[41] J.B. and C.B.2 testified that they applied to the Criminal Injuries Compensation Board for money because of the abuse suffered. J.B. said the application was made in 2015. Each received $11,000. According to C.B.2, J.B.2 also applied. It was suggested by counsel for J.P.B. that the application for and receipt of funds constituted a motive to fabricate on the part of J.B.2 when he reported abuse to the police in August 2017. That motive would have been explored in cross-examination. However, I consider that a link between the application for compensation and the information given to the police two or three years later seems tenuous at best.
[42] Counsel for J.P.B. submits that mental health and drug issues on the part of J.B.2 could be explored in cross-examination. In his statement, J.B.2 admitted having had drug and alcohol issues, referred to detox and medication and stated that he was “done with that”. While it is certainly true that the police deferred conducting the interview several times between August 2017 and June 2018 because of J.B.2’s emotional state, his condition at the time of the statement can be discerned from watching and listening to the video recording.
[43] Recalling the factors set out in Bradshaw at para. 31, the circumstances under which the statement was made do substantially negate the possibility that J.B.2 was being untruthful or mistaken. There was no obvious ulterior motive or collusion. The rationale for reporting the abuse was understandable. He came forward without apparent prompting. His words and demeanor disclose no mental health or substance issues and the police did not defer the interview to another occasion as had been done in the past when his condition was less stable. The statement itself appears to be trustworthy. Although there is a risk that the truth will not be fully disclosed whenever cross-examination is not available, in the circumstances the likelihood of a change to the substance of the statement through cross-examination appears to be minimal. All that having been said, it is not possible based on the statement by itself to say that the only likely explanation for it was its truth.
[44] In my review of the C.S. statement, I addressed the issue of corroboration as discussed in Bradshaw at paras. 44 and 47. This court needs to be decide whether corroborative evidence, considered as a whole and in the circumstances of the case, supports the proposition that the only likely explanation for the statement is the truthfulness about or accuracy of material aspects of it. Corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination which happens if no alternative explanations for the statement could have been elicited or probed through cross-examination.
[45] J.B.2 is the named complainant in four counts against J.P.B. including assault, sexual assault, unlawful confinement and indecent exposure. His three sisters are complainants in another 24 counts. Material aspects of his statement go directly to the essential elements of those offences: the withholding of food, assaults on himself and his siblings, being sexually abused by J.P.B. and the witnessing of sexual abuse of his sisters by J.P.B. Both J.B. and C.B.2 have testified not only as to offences allegedly committed against them by their father but also as to their witnessing of offences allegedly committed by their father against J.B.2. Both J.B. and C.B.2 have been cross-examined extensively. Their evidence was not shaken in any material ways as to the essential elements of the alleged offences through cross-examination. Their respective testimonies were not perfectly consistent with one another or with the statement given by J.B.2. In that for the most part they were young children at the time, and since the offences were alleged to date back to 1996, some inconsistency is not unexpected. However, there are clear and striking similarities between their observations and descriptions of the actions of J.P.B. and the actions described by J.B.2 in his statement.
[46] In addition to the testimony given by J.B. and C.B.2, several witnesses have attested to the home environment and to having seen assaults on J.B.2 and his siblings in similar terms to those described by J.B.2.
[47] It is possible that J.B.2 could have been motivated to make up the allegations contained in his statement to support his previous application for financial benefits from the Criminal Injuries Compensation Board. It is possible that his allegations were simply a retelling of stories provided to him by one or both of J.B. and C.B.2. It is also possible that he was suffering some form of mental illness when he gave his statement and that the incidents described did not really happen. If cross-examination was available, all those alternative explanations for the statement could have been probed. However, the corroborative evidence as to the events that occurred during his childhood and adolescence, particularly testimony given by unrelated third parties, convinces me that those alternative explanations should be ruled out.
[48] I conclude, based on the whole of the corroborative evidence and the circumstances of the case that at least to the extent of threshold liability the only reasonable explanation for the statement is J.B.2’s truthfulness.
[49] The court does not consider the matters of procedural and substantive reliability in separate silos. As set out in Bradshaw at para. 32, factors relevant to one can complement the other. Therefore, it is important to consider the combination of the two to assess whether the accuracy and truthfulness of the statement can be satisfied at a threshold level without cross-examination.
[50] The videotaped statement, taken in the circumstances described, provides some assurance of procedural reliability. Likewise, substantive reliability can be found in the circumstances and content of the statement, supported by the corroborative testimony of J.B. and C.B.2 and unrelated third-party witnesses. I acknowledge that great care must be taken to ensure that statements are not deemed admissible where there are insufficient safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers that occur when the declarant is not available for cross-examination. I am satisfied that in this case and for the reasons indicated above, the Crown has satisfied its onus of establishing threshold reliability of the video recorded statement of J.B.2 dated June 13, 2018 and that it should therefore be admissible at trial, subject to appropriate vetting as has already been identified by the Crown.
[51] Finally, I have turned my mind to the residual discretion of the court to exclude an otherwise admissible statement where its prejudicial effect outweighs probative value. J.B.2 is both a complainant and a key witness to interactions between his siblings and J.P.B. He is by no means a peripheral player. The evidence contained in the statement is highly probative of issues before the court. The potential prejudice to J.P.B. does not arise from the admission of evidence that strengthens the Crown’s case, but rather from the jury giving insufficient regard to the lack of cross-examination when it attributes weight to the statement. Based on the expectation that there will be a clear direction to the jury, I have no hesitation in finding that the probative value of admitting J.B.2’s statement outweighs the prejudicial effect.
[52] There will be a mid-trial and final instruction to the jury confirming the care that must be taken in weighing the evidence of J.B.2 in the absence of cross-examination.
Reid J.
Date: November 29, 2021
[^1]: If the evidence is ruled admissible, it is up to the jury to determine ultimate reliability.