R. v. Fitzpatrick, 2022 ONSC 1880

Court File and Parties

COURT FILE NO.: CR-20-307-00 DATE: 2022-03-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Coughlin and P. Maund, for the Crown

- and -

PHILIP FITZPATRICK and EVAN WRIGHT S. Caramanna and C. Laperriere, for Mr. Fitzpatrick J. Goldlist and M. Bavaro, for Mr. Wright

HEARD: December 1, 2021

RULING ON K.G.B. APPLICATION

Justice André

[1] Mr. Philip Fitzpatrick, who is jointly charged with the murder of Brandon Hall on June 21, 2018, brings a K.G.B. application, through his counsel, for a declaration that two statements given to the police by his mother, Cheryl Hall, concerning the identity of the shooter, should be admitted for the truth of their contents. The Crown is not opposed to the application if a) the two statements are shown to the jury with appropriate edits; and b) the Crown is afforded an opportunity to cross-examine Ms. Hall.

BACKGROUND FACTS

[2] On June 21, 2018, at approximately 4:30 a.m. unknown persons kicked down the front door of the basement apartment of Cheryl Hall and her son Brandon. Ms. Hall testified that she saw the door being kicked down and a person armed with a long gun entering the apartment before he started to shoot. She watched the scene after opening her bedroom door a few inches. After seeing her son fall to the floor, she locked her bedroom door and took refuge in a cupboard. She subsequently called 911 after the shooting had stopped.

[3] Ms. Hall was transported to a police station after the police arrived at the scene. She gave two statements to the police, one at approximately 6:05 a.m. and the other at 1:02 p.m. While giving the police the first statement, Ms. Hall realized to her horror, that she had been wounded in the chest area. The police then took her to a hospital where she was treated. Ms. Hall learnt that one of her breasts had been grazed by a bullet during the shooting.

[4] In her first statement, Ms. Hall described the shooter as “definitely black.” In the second statement, taken a few hours later, Ms. Hall stated, of the shooter, that “he didn’t even have a covering over his face” and that the shooter’s hand was black. She described the shooter as a short stocky guy who was dark skinned. She also stated in her second police statement that he didn’t even cover his face, something she described as odd. She stated that the shooter had a “tight afro”.

[5] Under cross-examination in this trial Ms. Hall confirmed that she was being truthful when she spoke to the police and described the shooter. However, she repeatedly testified that she did not know whether the person was black. “I saw black that’s all I’m prepared to say,” Ms. Hall repeatedly testified. She further testified yesterday, that she was not prepared to say that the shooter was black. “Everything looked black to me,” Ms. Hall testified under cross-examination. “I saw black that’s all I’m going to say on that”, she repeated.

[6] Ms. Hall also conceded that on November 3, 2018, she told the Crown about a news clipping she had seen in which she found out that the police had charged two while males for her son’s murder, and no black male.

[7] She conceded that it “could be” the case that news of the arrest was affecting her recollection about what she had seen on the night of the murder. She testified that it was possible that news of the arrest could have affected her willingness to accept her original police statements. Ms. Hall testified further that she believed that if the police charged someone with her son’s murder, they must have gotten it right. She agreed that her June 21, 2018, statements were not tainted by any knowledge about who was charged by the police and that until she found out that two white males were charged with her son’s murder, she believed that the shooter was an unmasked black male.

APPLICABLE PRINCIPLES

[8] Hearsay evidence, which is to say, an out of court statement by someone who cannot be cross-examined, is presumptively inadmissible for the truth of its contents.

[9] However, such evidence can be admitted under the principled exception to the hearsay rule if it meets the twin criteria of necessity and threshold reliability, and if its probative value outweighs its prejudicial effect: R. v. Khelawon, 2006 SCC 57, [2006] 2 SCR 787, at para. 42; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at paras. 2-3.

[10] Necessity is measured by availability. A statement becomes unavailable because a witness is present and available to testify but refuses to do so, or because the declarant recants the earlier statement. In the case of a recantation, the “recanting” witness holds the prior statement, and thus the relevant evidence, ‘hostage’: R. v. B.(K.G.), [1993] 1 S.C.R. 740, at p. 799 (K.G.B.); R. v. Rowe, 2021 ONCA 684, at para. 42. In these circumstances, necessity is established by the unavailability of the testimony that would be contained in the prior relevant statement: Rowe, at para. 42; Khelawon, at para. 78; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22.

THRESHOLD RELIABILITY

[11] Threshold reliability can be established by proving on a balance of probabilities that there are a) adequate substitutes in place to test the truth of the statement (“procedural reliability”) or b) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy: Khelawon, at paras. 61-63; Rowe, at para. 45; Youvarajah, at para. 30.

[12] Procedural reliability can be established in one of the following ways:

a) The availability of the declarant to be cross-examined before the trier of fact; b) The presence of an oath or solemn affirmation after a caution about the consequences about giving a false statement; and, c) Videotaping or recording the statement in its entirety: Rowe, at para. 48; B.(K.G.), at pp. 795-766; Youvarajah, at para. 29.

[13] The availability of the declarant for cross-examination is widely considered the most important of the three procedural safeguards: Rowe, at para. 52; R. v. U.(F.J.), [1995] 3 S.C.R. 764, at para. 39. In R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, the court described the ability to cross-examine a declarant as the “most powerful factor favouring admissibility:” at para. 95. See also Youvarajah, at para. 35.

[14] The oath or affirmation is the least necessary of the procedural safeguards: Rowe, at para. 59; R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.), at para. 78.

[15] The videotaping of a statement is an important procedural safeguard primarily because it places the trier of fact in the same room as the declarant and the interviewer: Rowe, at para. 63; K.G.B., at p. 793. Additionally, when the declarant is a recanting witness, the declarant is not only before the trier of fact on video but also before the trier of fact in the witness stand: Rowe, at para. 63.

SUBSTANTIVE RELIABILITY

[16] The Court of Appeal noted the following in Rowe, at para. 78:

There is a critical distinction to be made between threshold and ultimate reliability. At the threshold stage, it is for the trial judge to determine whether there exist “sufficient indicia of reliability so as to afford the trier of fact ‘a satisfactory basis for evaluating the truth of the statement’”: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 83, citing R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75; Khelawon, at para. 88. However, whether the statement is actually true remains within the exclusive jurisdiction of the trier of fact and, in a criminal trial involving a jury, it is “constitutionally imperative” that this be so: Khelawon, at para. 50.

RESIDUAL DISCRETION

[17] Even if the prior statement meets the test of threshold admissibility, a trial judge has the discretion to exclude the statement if the prejudicial effect of admitting the statement outweighs its probative value. In Rowe, the Court of Appeal noted the following at para. 90:

The question to be resolved under the residual discretion prong was not whether the trial judge thought that the Crown had enough evidence to prove the elements of the offence, but whether the statement that formed the subject of the admissibility voir dire wasp probative of an issue in dispute (it was) and whether the prejudicial impact of admitting that statement outweighed its probative value.

ANALYSIS

[18] This application raises the following three issues:

a) Should Ms. Hall’s police statements on June 21, 2018, be admitted for the truth of their contents? b) If I rule that the statements are admissible, should the statements be shown to the jury in their entirety? c) Should the Crown be permitted to cross-examine Ms. Hall on the parts of the statements related to her identification of her son’s shooter?

Should Ms. Hall’s police statements on June 21, 2018, be admitted for the truth of their contents?

[19] The statements, based on the decisions in K.G.B., Rowe and Starr, can be admissible for the truth of their contents under the principled exception to the hearsay rule, if they meet the criteria of necessity and reliability.

[20] Has the necessity requirement been met in this application? In my view, it has. Ms. Hall initially advised the police that the shooter was a black man with dark skin and a tight afro. She also said that he was unmasked. However, she repeatedly stated, during her examination in-chief, and cross-examination, that all she saw was black and that the persons involved were all masked. She asserted that her statements to the police were true but testified that she was not prepared to adopt her prior statement to the effect that a) the shooter was a black male and b) he was not masked, as part of her present testimony. To the extent that she has refused to adopt her earlier statements, she is holding the evidence, to use the terminology in K.G.B., hostage. Accordingly, the statements are unavailable to the trier of fact. To that extent, the necessity requirement has been met.

[21] Are there adequate substitutes in place to test the truth of the statements or are there sufficient circumstantial or evidentiary guarantees that the statements are inherently trustworthy? In my view, there are: Ms. Hall is available to be cross-examined on the statements before the jury. Ms. Hall was not asked to give either statement under oath or solemn affirmation, neither was she cautioned about the consequences about giving a false statement. However, as noted by the Court of Appeal in Trieu, at para. 78, the oath or affirmation is the least necessary of the procedural safeguards.

[22] Third, both statements were videotaped. The jury has been afforded a partial opportunity to see and hear Ms. Hall while she gave the statements to the police. They have, therefore, been given an opportunity to be in the same room as Ms. Hall and the officer who interviewed her and in the same courtroom where she is testifying under oath.

[23] There are, therefore, procedural safeguards in place to test the truthfulness of the statement.

[24] Are there sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy? Do the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statements other than Ms. Hall’s truthfulness? See R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865, at para. 40.

[25] I have already noted that the statement was not made under oath or solemn affirmation. However, the following factors lead me to conclude that there are sufficient indicia of reliability which affords the trier of fact a sufficient basis for evaluating the truth of the statements:

a) The statements were given a mere hours following the fatal shooting. b) There is no evidence or suggestion that Ms. Hall was influenced by anyone in what she said to the police. c) The interviewing officer did not ask her leading questions about the race, build, or identity of the shooter or shooters. d) Ms. Hall responded to the interviewer’s questions without any hesitation or equivocation about the person she saw or the person she described as the leader. e) The evidence does not disclose that Ms. Hall had a motive to lie.

[26] It will be the jury’s prerogative to determine whether the statements are actually true. They will be required to do so after consideration of all the evidence. However, at this stage of the inquiry all I am required to do is to determine whether there are sufficient indicia of reliability to afford the jury a sufficient basis for assessing the truthfulness of the statement.

[27] In my view, there is. To that extent, the statements are admissible for the truth of their contents, unless I decide that the prejudicial effect of their admissions outweighs their probative value.

[28] Are the statements in question probative of an issue in this trial? Undoubtedly, they are. The issue is the identity of those involved in the shooting. The jury will have the ultimate responsibility to determine what weight to be placed on this evidence after considering all the evidence.

Should the two statements which are the subject of this application be shown to the jury in their entirety with appropriate edits?

[29] Mr. Caramanna submits that only the parts of the statement where Ms. Hall identifies a young, unmasked black male as the shooter, should be shown to the jury. The Crown demurs and insists that the applicable jurisprudence indicate that the full statements should be shown to the jury.

[30] In K.G.B., the Supreme Court of Canada noted at para. 68 that “prior statements can be placed before the trier of fact in their entirety and in a form which ensures their integrity.” In R. v. Srun, 2019 ONCA 453, 377 CCC (3d) 79, at para. 136, the Court of Appeal for Ontario noted in a case which facts are admittedly different from that in this case, that a party seeking to rely on an out of court statement for the truth of its contents “is not entitled to pick and choose among its constituent parts. He or she takes the good with the bad.”

[31] In my view, these cases support the Crown’s view that the statements should be shown to the jury in their entirety subject to appropriate edits being made to them. There is another reason why the statements should be shown in their entirety. Some of the factors that are relevant to the issue of threshold reliability are also relevant to that of ultimate reliability which is the exclusive preserve of the jury. These factors include the demeanour of the witness when giving the statements, the absence or presence of leading questions from the interviewer, any utterances by the witness regarding her state of mind when giving the statement, her level of fatigue, or any reasons she may have given to explain what she said in her statements. By restricting the statement only to those parts where Ms. Hall identified the shooter as black, parts of the statement which the jury may rely upon in its assessment of the weight to be placed on the evidence, may be improperly withheld from the jury.

[32] I therefore conclude that, subject to the appropriate edits, the entire statements should be played for the jury. The parties can agree that certain parts of the statement, such as, for example, evidence that the deceased had some mental issues, would not be played to the jury.

Should the Crown be permitted to cross-examine Ms. Hall on her prior statements?

[33] Mr. Caramanna insists that the Crown should not be permitted to cross-examine Ms. Hall on the prior statements. He submits that this is not the typical case where the Crown brings an application for the admission of a prior statement of one of its witnesses for the truth of its contents where it requires that evidence as part of its case against an accused. This is a case where the Crown does not wish the identification evidence contained in Ms. Hall’s two June 21, 2018, statements to be given to the jury. He further submits that it is the defence rather than the Crown, who is the aggrieved party who should have the right to cross-examine Ms. Hall, not the Crown. Mr. Caramanna relies on the cases of R. v. Glowatski, 2001 BCCA 678, 160 CCC (3d) 525, at para. 33 and R. v. Scozzafava, (1997 CarswellONT 4604, at para. 17, for the proposition that in appropriate circumstances, the Supreme Court of Canada’s decision in K.G.B. does not have to be strictly adhered to. To that extent, the Crown should not be permitted to carry out a wide-ranging cross-examination of Ms. Hall before the jury.

[34] The applicable caselaw does not support Mr. Caramanna’s position. A number of courts, including Rowe, FJA at para. 39, Couture, at para. 95 and Youvarajah, at para. 35, all suggest that the availability of the declarant for cross-examination is a very important factor relevant to the issue of reliability. In K.G.B., the Supreme Court of Canada stated at para. 104 that the requirement of reliability will be satisfied when, among other things, “the opposing party, whether the Crown or defence, has a full opportunity to cross-examine the witness respecting the statement.” This latter statement, in my view, justifies a decision permitting the Crown to cross-examine Ms. Hall concerning her identification of the shooter or shooters in her two June 21, 2018, statements to the police.

[35] That said, the Crown should not be permitted to embark on a broad ranging cross-examination of Ms. Hall. The cross-examination will be limited to the utterances made by Ms. Hall during Mr. Caramanna’s cross-examination of her and any of her utterances concerning her state of mind and physical condition when she made the statements to the police.

André J. Released: March 24, 2022