ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL WENTWORTH (a.k.a MICHAEL VERNEY)
Respondent
Fraser Kelly and Holly Chiavetti, for the Crown
John Kaldas and Raymond Wong, for the Respondent
HEARD: June 13, 14, 15 and 16, 2022 with supplementary written submissions dated July 12th and 27th, 2022
LACELLE j.
RULING ON THE ADMISSIBILITY OF THE HEARSAY STATEMENTS OF HENRIETTA KNIGHT AND DR. JOHN DECK
Introduction
1The Crown applies to admit hearsay statements from Henrietta Knight and Dr. John Deck at trial. Ms. Knight is the alleged victim in the manslaughter charge for which the Respondent is on trial. Dr. Deck is the pathologist who performed the autopsy on Ms. Knight following her death.
2The defence is opposed to the admission of any of the statements. In the case of Ms. Knight, where four statements are at issue, the defence takes the position that if the court determines that one of her statements is admissible, the remainder should be admitted as well.
3Counsel were informed some time ago that I have determined that the four statements of Ms. Knight are admissible at trial, while the report of Dr. Deck is not. These are my reasons for those decisions.
Background – History Relating to the Offence Against Henrietta Knight
4Henrietta Knight was a 92-year-old woman who lived alone in a small house in Kingston. On June 2, 1995, the Respondent is alleged to have entered her home to rob her. The Crown alleges the Respondent entered the home with the intention of committing a robbery, but that in the course of the robbery, the Respondent also bound Ms. Knight to a chair and beat her about the head. While she survived the attack and managed to make her way to a neighbour’s house, she died some months later. The question of whether the initial injuries she sustained caused her death is a live issue in the trial.
5Ms. Knight was taken to hospital by ambulance the day of the home invasion. She was treated and later released the same day.
6She returned to the hospital on July 1, 1995, showing signs of confusion. She was released on July 3d, 1995.
7On July 11, 1995, Ms. Knight again returned to hospital and for the first time, a CT scan was done. It showed bleeding on her brain.
8Thereafter, Ms. Knight remained in hospital. She was eventually transferred to a chronic care facility where she died on November 4, 1995.
9The evidence in relation to this allegation includes photographs of Ms. Knight’s person and home following the home invasion. The photographs of Ms. Knight show extensive bruising to her face and neck, a bruise on her left shoulder, and bruising to her arms and hands. Some of her skin had been torn off her arms where she had been taped up. The photographs of Ms. Knight’s home show that it was ransacked (for instance, drawers were pulled out and overturned). They show a chair with tape attached. Tape from the chair was analyzed and revealed to have samples of DNA consistent with Ms. Knight’s.
The Admissibility of the Statements of Henrietta Knight
10The Crown seeks to have four statements made by Ms. Knight admitted at trial for their truth. They are as follows.
Statement 1 – Verbal Statement to the Ambulance Paramedic on June 2, 1995
11Following a 911 call at 4:32 pm on June 2, 1995, police were dispatched to Ms. Knight’s address for a “beating in progress”. The information relayed was that Ms. Knight had made her way to a neighbour’s house.
12Constable Deb Wicklam was the first officer to speak with Ms. Knight. She testified she responded to a dispatch at 4:43 pm and met Ms. Knight at her neighbour’s. She remained with her while the ambulance was en route.
13Constable Wicklam observed various injuries to Ms. Knight, including what she described as “boxed ears”, which indicated there were “cauliflower puffs” from their membranes. Ms. Knight told her what happened and provided a description of her attacker. Among other things, she said he had blondish hair with no part and that he had a small grey revolver handgun. While the Crown does not seek to have this statement to Officer Wicklam admitted, it forms part of the narrative of Ms. Knight’s utterances about what happened to her.
14The ambulance attendants were on scene at 4:59 p.m., which was within a half hour of the 911 call.
15The Ambulance Call report (which the Crown seeks to have admitted as a business record under s. 30 of the Canada Evidence Act, R.S.C., 1985, c. C-5 [“the Act”]) indicates that paramedics were with Ms. Knight between 5:00 pm and 5:16 pm.
16On this particular call, Mr. Jeff O’Field was the attendant who assessed Ms. Knight, kept notes on the case, and prepared the Ambulance Call report. He testified that these reports have to be completed in every call, whether or not the patient is taken to hospital, and that they are part of the ordinary course of business. As Mr. O’Field put it, “they are 100 percent required in every case” they attend.
17Mr. O’Field also testified about the importance of being accurate, since the information obtained is used in the continuation of care at the hospital. As the initial contact on the case, it is integral in patient care.
18In this case, the report was prepared after they had arrived at hospital and had transferred the patient to hospital staff. It was his practice to take extensive notes during his dealings with the patient in the assessment process and then transcribe them on the ambulance call report at hospital. He would use a notepad to do that. He would usually shred his notes once at the emergency department.
19Mr. O’Field testified that while in the ambulance, he asked Ms. Knight what had happened. He then “essentially transcribed” what she told him.
20His ambulance call report indicates that Ms. Knight reported that she was bound around her wrists and tied “into” a chair. While she was restrained, she was struck on the left side of her face by the assailant’s hand/fist. She reported wrist pain and mandible pain. Ms. Knight indicated she had answered a knock on her front door. A young man pushed his way into her house, tied her into a chair, and struck her. She said her husband would be home soon, but the man said he knew that he was dead. After being tied approximately 30 minutes, during which time the man ransacked her house, he cut her free. She then made her way to Bob’s house, at which time police and ambulance were called.
21Mr. O’Field did not believe Ms. Knight said anything about the assailant brandishing a gun, or any conversation about where the man was from. After initially testifying that he does not believe he would have recorded that information if she had provided it, Mr. O’Field said “strike that”, and said that in his experience, it would not normally come up in questioning when asking what had happened. When it was suggested to him that he would definitely have included in his report that she said the man brandished a gun if she had told him that, he said it was “hard to say definitely”, but he agreed he likely would have done so given the nature of what he had recorded and the completeness of his “case sheets”.
22During his assessment, Mr. O’Field completed the Glasgow coma scale, which rates a person’s consciousness or oriented state following a traumatic situation. Ms. Knight’s score was normal for an alert and conscious patient. During the physical exam Ms. Knight was alert and oriented and able to answer all his questions in a coherent manner. She was calm and coherent, with minimal acute distress. Her respiratory rate was normal, as was her pupil response. Mr. O’Field said he had no concerns whatsoever about her ability to communicate.
23The injuries observed and documented by Mr. O’Field include the injuries subsequently photographed by police. In addition, Mr. O’Field noted Ms. Knight had blood visible in her mouth, and avulsions on her wrists (e.g. tearing away of the upper skin to expose the dermal area) which covered the complete circumference of her wrists.
Statement 2 – Verbal Statement to Officers at the Hospital on June 2, 1995
24Police (Constable Heymans and Constable Wicklam) spoke with Ms. Knight a little later after she was in the hospital and after her injuries had been photographed. The photographs were taken at 6 pm and Officer Wicklam left the hospital by 8-9pm (the officers’ evidence on this point differed). In any event, the statement was taken at some point within that time frame. The officers asked Ms. Knight to recount what happened. Both took notes.
25Constable Wicklam testified her notes were taken verbatim. Accuracy was important and she wanted a pure version of events. She testified that she typically goes back over a statement with the witness afterwards. Here, she went through it afterwards so as not to interrupt Ms. Knight. Ms. Knight did make a correction regarding how her hands were taped. At the scene she had said they had been tied behind her back but she corrected that at the hospital. The correction is reflected in the officer’s notebook. The officer testified that she didn’t believe Ms. Knight was capable of signing or initialing the correction since her hands had been stitched.
26PC Heymans testified he made his notes about what Ms. Knight said at the hospital. He was trying to be as accurate as possible, but the notes were not verbatim. Ms. Knight did not review or sign them.
27Both officers testified that they had no difficulties in communicating with Ms. Knight who appeared to understand them (notwithstanding that PC Heymans had been advised Ms. Knight had a ruptured left ear drum). Her injuries did not appear to have an impact on her ability to provide a statement.
28Officer Heymans’ notes indicate that Ms. Knight recounted that there was a knock at the front door and a lone white male forced his way in pushing her back into a chair. He struck her in the head numerous times very hard. He tied her hands behind her back. He demanded to know where the money was. She refused to tell him. He struck her repeatedly about the face and head, and ransacked the house. He told the victim he had a gun and was going to kill her if she didn’t tell him where the money was. He showed her a small grey revolver. At this point, the officer notes state “about ½ hour”. The notes continue and indicate that the male then cut the tape and the victim fled out the front door to a neighbour’s house. She does not know where the attacker went. The officer’s notes state that the “suspect is a lone white male” and that Ms. Knight’s arms were taped to the arms of a chair.
29Officer Wicklam’s notes indicate that Ms. Knight “at approx. [blank] pm” heard a knock on the front door. She thought it was a neighbour so she opened the door. When she did, a man pushed her back into her residence, slapped her in the face really hard and knocked her back into a chair. There he proceeded to tie her hands to the arms of the chair. He asked her where her money was. She refused to tell him, so he proceeded to slap her more in the face. Then he started ransacking the house and came back asking for the money. She refused to tell him. He then produced a gun – and told her if she didn’t tell him he was going to kill her. This went on for approximately a half hour then he cut the tape and the victim fled out the front door to a neighbour’s house. She did not know where he went. She believed he was still in the house. She stated that the suspect “cut duct tape with scissors”. The telephone cord was cut and used to tie her up as well.
30Ms. Knight was discharged from hospital later that night.
Statement 3 – Verbal Statement to Officers on June 3, 1995
31Police (Officer Brian Begbie and Officer Sam Smith) spoke with Ms. Knight again at about 2:50 pm the day after the home invasion. She was at her brother’s home at the time.
32During the interview, Ms. Knight was noted by Officer Begbie to be very groggy, sometimes difficult to understand, and perhaps confused. She had just woken up when police arrived and this is when she seemed most confused. Officer Begbie thought Ms. Knight might be under the influence of drugs (he did not know what medication she might have had), though he did not believe her to be intoxicated. She was soft-spoken and it was sometimes hard to hear her. Officer Begbie also noted she also appeared to have difficulty hearing. However, he said she appeared to understand his questions. He said he did not tell her what she had told others or prompt her with his questions. Any questions he asked would have been to seek clarification. He took non-verbatim notes of what she said. At no point did he feel like it was necessary to discontinue taking a statement from her. Police were at the residence for just under an hour.
33Ms. Knight provided a similar account of what occurred as she had provided the day before, although she provided new details about her interactions with the assailant. She said he said he was from Montreal. She reported he got no money. She said she told the assailant she had no money and he told her she had lots of money. She said he forced her into the chair where he taped both arms and her body (torso) to the chair. He kept telling her he would kill her and he wanted money. He told her he would burn the house down and put papers under her chair. She did not tell him the assailant had tied her hands behind her back.
34Officer Begbie’s notes indicate she described him as a small man who was 35-40 years old, 5’6”, 150 lbs, neat hair parted on the side, no moustache, clean shaven, dark clothing, no earrings, or tattoos or scars noticed. She said he was “blond above ears, longer in back and blond closer to brown”. She said she had never seen him before. She said it was not the son in law (“Parry”) of Bob Wiltsie, who had done work at her house in the past.
35The officer report of Officer Smith (his original notes have been lost) are generally similar as to the description of the man that Ms. Knight provided. However, his report indicates the assailant was described as having dark brown hair, parted on the side, longer in back, with short sideburns.
Statement 4 – Sworn Videotaped Statement to Officers on June 5, 1995
36Two days later, and three days after the home invasion, Ms. Knight was interviewed at the police station by then Sgt. (and now Chief) Antje McNeely. The statement was given under oath and was videotaped. It was given after Ms. Knight was cautioned that lying under oath was a criminal offence and could lead to perjury charges. Ms. Knight acknowledged her understanding.
37Sgt. McNeely testified that she saw no signs of intoxication from Ms. Knight. She confirmed that she had given her no memory aides, such as reviewing with her what she had previously told other officers.
38During the interview Ms. Knight appeared to have difficulty hearing. She appeared very frail. Her face showed extensive and deep coloured bruising. She appeared confused from time to time. It took some effort on the part of Sgt. McNeely to have Ms. Knight focus on the issue she was asking about. When Sgt. McNeely told Ms. Knight she wanted to talk about what had happened the day of the home invasion, Ms. Knight said she could hardly remember. She said she had been so scared.
39Over the course of the 33 minute interview, Ms. Knight did provide an account of what had occurred in her home. This was in response to very open-ended and non-leading questioning. The account Ms. Knight gave was generally similar to her previous accounts – a man had come into the house, assaulted her, pushed her into a chair and bound her to it. He said he wanted her money.
40Some of the differences in Ms. Knight’s account related to how she escaped. When she was first asked how she got away, she said she just walked out the front door, and he stood and looked at her. However, later in the interview, she said he cut her loose, and then he left. After that she locked the door and called the police. She then said he plundered the house while she was out of the house. When asked a follow-up question about this, she said she did not know, she could not remember. Later still, she said that police came after she called them and she let them in.
41On this occasion, Ms. Knight could remember very little about anything the man might have said to her. She reported no threatening comments. Ms. Knight was asked if the man had anything with him and she said he did not. There was no mention of a gun being involved. While she had previously said the man had not worn gloves (to Officers Begbie and Smith on June 3rd), this time she said he did wear them, and she thought they were cotton, and thin.
42Ms. Knight again provided a description of her assailant. She said he was slight, maybe 5’5” (she also said he was a bit taller than her, and she was 5’4”), he was 35 or in his late thirties, maybe 40, and he was clean cut. She said she did not think his hair was as dark as the officer observing the interview (whose hair appears to be dark brown in the video), and that it was not long hair, and parted on the side. She thought he had grey eyes.
Additional Evidence
43The application record also contains other evidence that the Crown argues is corroborative of Ms. Knight’s account, including photographs of Ms. Knight and her home taken a short time after the offence, Ms. Knight’s medical records, and CFS reports about DNA consistent with Ms. Knight’s found on tape and clothing. The additional evidence on the voir dire also includes transcripts of utterances made by the accused which the Crown alleges relate to this offence and other materials, such as financial records kept by Ms. Knight, which the Crown says show a connection to Rob Parker, whose wife Lori Parker is said by the accused to have given him a tip that Ms. Knight was a hoarder.
44The photographs of Ms. Knight’s home show that it was ransacked. Items are strewn about in the main floor rooms. Drawers have been pulled out and emptied. There are newspaper pages under a chair to which tape is attached to the arms and chair back. There is no visible sign of a forced entry. The first officer at the scene (PC Goodfellow) testified he did not believe the front door was forced, but he had made no note to that effect.
45The photographs taken of Ms. Knight at various points in time show extensive bruising and injury to her head, neck, chest, arms and wrists.
The Positions of the Parties
The Crown
46The Crown says it seeks to introduce Ms. Knight’s statements to establish that she was assaulted and the circumstances of that assault. It says: “[t]he circumstances include that a lone male knocked on her door, pushed his way into her house, bound her to a chair and assault her in hopes of stealing from her. He ransacked her home in the process and then fled. He threatened her. He knew her husband was dead, and nobody was coming to save her.”
47As for the circumstances in which she gave her statements, the Crown emphasizes she had no motive to fabricate what transpired. She was not pursuing a vendetta because she did not identify a perpetrator. Providing her narrative was of no benefit to her. She was not suffering from any psychosis when she gave it (as was a concern with the elderly complainant in R. v. Khelawon, 2006 SCC 57 [Khelawon]). There is no indication she was reluctant to speak about what happened or that anyone extracted statements from her. There is evidence that corroborates her account, even if it does not go directly to a contentious issue in the case, because when considered with other evidence it corroborates the overall reliability of the declarant’s narrative: see R. v. Thyagarajah, 2017 ONCA 825 [Thyagarajah].
48The Crown argues that the statements made by Ms. Knight on June 2nd to the paramedic and to police at hospital are spontaneous utterances that lie within an established exception to the hearsay rule and are admissible on this basis. It further argues that the Ambulance Call Report is admissible as a business record under s. 30 of the Act. The Crown says the court can consider these statements for their truth because each were made so close in time to the crime. The Crown emphasizes the law which holds that strict contemporaneity is not required for admission as a spontaneous utterance. It argues that the intervening events between the assault and Ms. Knight’s recitation of events that caused her injuries “belie any realistic suggestion that Mrs. Knight had “time for reflection to the extent of being able to form or create a fabrication of the event or it’s cause”. There was no evidence that Mrs. Knight was ever reluctant to speak and had to be pressed”.
49Further, the statements from June 2nd, as well as the two subsequent statements from June 3rd and June 5th, are sufficiently reliable to warrant admission under the principled analysis. The Crown argues that the specific hearsay dangers posed by the admission of each statement may be adequately addressed. In the case of the videotaped statement, there are significant procedural reliability markers. In all instances, substantive reliability is made out.
50The Crown also argues that admitting multiple statements from Ms. Knight allows the court to obtain a full account from the declarant. While the statements have much in common, they are not identical. While completely duplicative statements ought not to be admitted (R. v. Mohamad 2018 ONCA 966 [Mohamad] at para. 97), courts may admit multiple statements to get a declarant’s full account notwithstanding the inconsistencies between them: R. v. J.L., 2021 ONCA 269 at paras. 39-42. Excluding some of Ms. Knight’s statements would come at a cost, including that any inconsistencies in the statements would not be part of the record and additional details contained in subsequent statements would be unavailable. Furthermore, if the videotaped statement were to be excluded, the court would lose its ability to assess Ms. Knight’s demeanor at the time of these events.
The Defence
51The defence argues that whether or not the hearsay danger of the declarant’s sincerity is an issue, the internal inconsistency between the statements shows they are unreliable. The inconsistencies relate to material facts in her statements which cannot be independently verified or challenged including: Ms. Knight’s description of the assailant, the words said by the assailant, and the particular actions made by the assailant and their order. The defence argues that the statements do not assist in determining the ultimate issue of whether or not the Respondent was in fact the assailant and as such, the statements should be excluded.
52With respect to the basis of admissibility argued by the Crown, the defence says that the Crown has not provided any evidence that Ms. Knight’s statements on June 2nd were, in fact, spontaneous. It also takes issue with the admissibility of the statements on this basis because the statements were made to persons in authority. It is not clear how the statements were elicited from her or how she was questioned (except for the video statement). The defence argues the officers involved did not make notes or record their observations of Ms. Knight’s mental state or demeanour at the time of questioning.
53Regardless, even if some of her statements fall within this exception, they may still be excluded because the indicia of reliability are lacking (citing R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 251 D.L.R. (4th) 385 at para. 14). The defence says the Crown is still required to establish the necessity and reliability of the statements. It submits that in this case, reliability is clearly not established.
54By all accounts, Ms. Knight was experiencing cognitive issues. Regardless of her sincerity, her ability to accurately recall what had happened could have been affected by the events she survived. The contradictions between her statements show that she either misspoke or made mistakes when discussing the incident. The defence submits that the circumstances in which she made the statements are not guarantors of their truth and accuracy. The contradictions are important because ordinarily they would be explored in cross-examination. While the videotaped statement was given under oath, this is an insufficient basis to overcome the lack of cross-examination, particularly when the statement is contradicted by previous statements made by Ms. Knight (e.g. whether or not the assailant said anything to her, and whether she left the house on her own), and physical evidence (e.g. the chair had tape attached but not string, the means by which Ms. Knight suggested she was attached to the chair).
55The defence submits that the evidence said to be corroborative provides little assistance as that evidence cannot support material aspects of the statements, which relate to issues in dispute. In that regard, reliance on the evidence of Robert Parker is problematic, particularly to the extent that it includes things his wife Lori told him which are inadmissible hearsay. The Crown’s reliance on what it says are similarities in utterances made by the accused overstates the case and is problematic given that the accused could have had knowledge of what occurred to Ms. Knight from media accounts, including the one presented to him by the undercover officer. The similarity between Ms. Knight’s statements and the accused’s utterances are not significant when taken as a whole.
56Counsel reminds the court that hearsay evidence is presumptively inadmissible, and the onus is on the party seeking admission of the statement to satisfy the court of its trustworthiness. The defence cautions the court that it is important that trial judges start from the premise that hearsay statements are inadmissible and then search for indicia of trustworthiness sufficient to displace the general exclusionary rule, or the trial judge risks reversing the onus: R. v. Blackman, 2008 SCC 37 at paras. 37-38.
57Finally, the defence says the court should exercise its residual discretion to exclude the evidence because there is no way to challenge the observations Ms. Knight is said to have made since she was the sole witness to events. This strikes at the fairness of the proceedings, and the prejudice of admitting the evidence outweighs its probative value.
58With respect to the Crown’s reliance on Mohamad, the defence submits that the court must approach the admission of the entirety of the statements while considering the internal inconsistency of the statements as a whole to gauge the substantive reliability of the evidence. Having done so, and in the event the court determines that even one of Ms. Knight’s statements is admissible, the defence says all of her statements should then be admitted. This is necessary to avoid creating a false account of what was actually said by Ms. Knight. Admitting all the statements also enables the defence to challenge their reliability.
The Legal Principles
The Admissibility of Hearsay
59Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible. This is because allowing a trier of fact to consider hearsay may compromise trial fairness and the truth-seeking process. As noted most recently by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35 [Bradshaw] at para. 20, hearsay “may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity.” Generally, a hearsay statement is not taken under oath, the trier-of-fact cannot observe the declarant’s demeanor as they make the statement, and the hearsay statement cannot not be tested through cross-examination.
60However, as re-iterated in Bradshaw at para. 22, “some hearsay evidence ‘presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding’” [emphasis in original]. Accordingly, exceptions to the hearsay rule have developed over time.
61Under our law, hearsay may be admitted under one of the traditional exceptions to the hearsay rule at common law, or under the principled exception to the rule, which has been developed by the Supreme Court of Canada in its jurisprudence.
Spontaneous Utterances
62Spontaneous utterances made by a declarant in certain circumstances may be admitted at trial. This exception has also been referred to as the res gestae exception: R. v. Borel, 2021 ONCA 16 [Borel] at para. 50, citing R. v. Nurse, 2019 ONCA 260 [Nurse].
63While now dated, the following directive from our Court of Appeal in R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 27 O.A.C. 142, 42 C.C.C. (3d) 197 (C.A.) is consistent with the current case law and was cited with approval in Nurse. The decision usefully encapsulates the basis for admissibility under this rule at page 207:
[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.
64The case of R. v. Dakin, 1995 CanLII 1106 (ON CA), [1995] O.J. No. 944, [1995] O.A.C. 254 (C.A.) at para. 21 reaffirmed that the utterance need not be made strictly contemporaneously with the events. In that case, statements made to first responders and neighbours shortly after the injuries sustained by the declarants and statements made to hospital staff about 45 minutes to an hour later were admissible as spontaneous utterances. The court reasoned that the intervening events between the time the declarants sustained their injuries and the statement to hospital staff did not “change the severity of the pain nor the circumstances that existed since the traumatic event, [a]nd that created the unlikelihood of time for reflection to the extent of being able to form or create a fabrication of the event or its cause” (para. 21). See also Nurse at paras. 77-88 (statements made moments after a stabbing); R. v. Johnston, 2018 MBCA 8 at paras. 117-124 (statements to a police officer over the phone within an hour of the assault), and R. v. Hall, 2011 ONSC 5628 at paras. 20-23 [Hall].
65In any event, Nurse has recently confirmed that as directed by the court in Dakin, the admissibility of spontaneous utterances is not assessed simply “by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion”: at para. 82; see also paras. 77-88. Further, Nurse confirmed that in general, the possibility of error in the facts narrated relates to the weight of the evidence, not its admissibility: see para. 86.
66As for what is meant by “spontaneous”, the fact that questions are posed of the declarant does not preclude a finding of spontaneity. The fact that a statement was made in answer to a question is one factor to consider in the admissibility inquiry: Nurse at para. 85; Hall at para. 18.
67Borel is an example of a case where the statement was not properly characterized as spontaneous. In that case, the declarant had expressed reluctance to identify her attacker. An EMS attendant offered suggestions to the declarant as to who might have attacked her (e.g. “boyfriend? Husband?”) and asked her to confirm the identity of her attacker by nodding her head. The declarant’s affirmative response by nodding her head was found to have been improperly admitted into evidence as “there was nothing apparently spontaneous” in the face of the repeated questioning by the EMS attendant: see para. 51. The Court of Appeal for Ontario also seemed to be concerned that two firefighters who were in the ambulance at the time of this exchange did not recall that this occurred. Moreover, the statement did not meet the criterion of necessity under the principled approach because the declarant/complainant was available to give evidence: see para. 47. See also R. v. Aguilar, 1992 CanLII 7727 (ON CA), 10 O.R. (3d) 266, [1992] O.J. No. 1825 (C.A.) at para. 34, where statements “made in response to very particular questions” did not “attain the level of spontaneity that is an essential element of [the] exception”.
The Principled Exception to the Hearsay Rule
68Where a party seeks to have hearsay admitted under the principled exception to the hearsay rule, that party must prove, on a balance of probabilities, the criteria of necessity and reliability: R. v. Youvarajah, 2013 SCC 41 at para. 21. Necessity is conceded in relation to both declarants in these applications. Consequently, I review the law only as it pertains to reliability.
69The issue for a judge ruling on admissibility is the threshold reliability of the statements and not its ultimate reliability. Threshold reliability will be established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty in its testing. The dangers relate to assessing the declarant’s perception, memory, narration, or sincerity: Bradshaw at para. 26.
70These dangers may be overcome where “(1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)”: Bradshaw at para 27; see also Khelawon at paras. 61-63. In this case, the analysis for both methods for overcoming the hearsay dangers are relevant. A useful summary of this law was provided in R. v. Srun, 2019 ONCA 453 by Watt J.A. as follows at paras. 124-127:
The reliability requirement may be established in either or both of two ways.
Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 63. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying: B. (K.G.), pp. 795-96. However, some form of cross-examination, as for example of a recanting witness at trial, is usually required: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 28; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92-95.
Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement: Bradshaw, at para. 30. The standard for substantive reliability is high: the judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little if anything to the process: Khelawon, at paras. 49, 62, 107; Bradshaw, at para. 31.
Procedural and substantive reliability are not mutually exclusive. They may work in tandem in that elements of both can combine to overcome the specific hearsay dangers a statement might present even where each, on its own, would be insufficient to establish reliability: Fredericks v. R., 2018 NBCA 56, 365 C.C.C. (3d) 498, at para. 77; Bradshaw, at para. 32.
Substantive Reliability
71The standard for substantive reliability is high, but it does not require that reliability be established with absolute certainty. The trial judge must, however, “be satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”: Bradshaw at para. 31, citing Khelawon at para. 49.
72Corroborative evidence may be considered in assessing the substantive reliability of hearsay. Bradshaw directs how this should be done, and why courts must limit what evidence is used as corroborative evidence for the purposes of admitting hearsay.
73There has been some commentary in the jurisprudence and in legal commentary to the effect that Bradshaw “prescribes what is arguably a more exacting analysis of reliability” than was set out in Khelawon: Nurse at para. 98. It is important to note, however, that while it does provide further guidance on how to analyze any extrinsic evidence tending to confirm or conflict with the material issue in the hearsay utterance, Bradshaw does not modify the overall structure of the analysis to be performed when analyzing substantive reliability under the principled exception: R v McGenn, 2018 BCSC 753 at para. 24; R v Larue, 2018 YKCA 9 at para. 98, aff’d 2019 SCC 25. Accordingly, where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability.
74If the analysis of the admissibility of a hearsay utterance attracts consideration of extrinsic evidence, following Bradshaw, a trial judge must take certain analytical steps in determining whether the evidence is of assistance in determining the substantive reliability of hearsay. As per para. 57 of Bradshaw, a trial judge should:
Identify the material aspects of the hearsay statement that are tendered for their truth;
Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. [Emphasis added]
75Regardless of whether extrinsic evidence is relied upon, substantive reliability is established when the statement is found to be so reliable that it is unlikely to change under cross-examination: R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, 94 DLR (4th) 590 at p. 933 [Smith]; Khelawon at para. 72; R. v. M.G.T., 2017 ONCA 736 at para. 139; Bradshaw at para 31.
Assessing Threshold Reliability
76Since Bradshaw, and as explained in Nurse at para. 102, substantive reliability is “gauged by the circumstances in which the statement was made, and any evidence that corroborates or conflicts with the statement” (see also Bradshaw at para. 30 and R. v. Blackman, 2008 SCC 37 at para. 55). Bradshaw directs at para. 40 that “substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”. The evidence must “substantially” negate the possibility raised in the alternative explanation: Bradshaw at para. 31.
77The recent case of R. v. McMorris, 2020 ONCA 844, highlights the direction in Bradshaw that alternative explanations for the statement must be plausible. Writing for the court, Lauwers J.A. explained, at paras. 33-34, the correct approach to assessing alternative explanations for the statement:
The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 [of Bradshaw] in order to warrant a role in the determination of threshold reliability:
While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, that is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities. [emphasis in original]
Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny must be rejected. Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement”. In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – only those that are, on reflection, reasonably plausible. I take this to have been the intention of Karaktsanis J. in Bradshaw. …
78As for the circumstances in which a statement is made, there may be a number which are relevant to the assessment of substantive reliability, including:
i. the timing of the statement in relation to the event reported;
ii. the presence or absence of a motive to lie on the part of the declarant, or any other reason to doubt the truthfulness of the statement;
iii. the presence or absence of leading questions or other forms of prompting;
iv. the nature of the event reported;
v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence;
vi. whether there would be any difficulties with respect to the declarant’s capacity to perceive or remember events;
vii. the condition of the declarant at the time the statement was made;
viii. the amount of detail in the statement; and,
ix. the demeanour of the declarant at the time the statement was made.
See R. v. J.M., 2010 ONCA 117 at para. 54. See also R. v. McGenn, 2018 BCSC 753 at para. 22, citing R. v. Hindessa, 2009 CanLII 48836 (ON SC), [2009] O.J. No. 3837, 84 W.C.B. (2d) 971 (Ont. S.C.) at para. 14.
The Use of Corroborative Evidence
79Bradshaw and other cases provide further guidance as to what evidence may be considered corroborative, and how corroborative evidence may be used in the analysis of threshold reliability. For instance, the cases direct that:
i. “[N]ot all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability. 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”: Bradshaw at para .44 (emphasis added);
ii. “The function of corroborative evidence at the threshold reliability stage is to mitigate the need for cross-examination, not generally, but on the point that the hearsay is tendered to prove”: Bradshaw at para. 45 (emphasis in original);
iii. Corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the hearsay statement. It must show that the material aspects of the statement are unlikely to change under cross-examination. It 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”: Bradshaw at para 47 (emphasis in original);
iv. Corroborative evidence must itself be trustworthy. Untrustworthy evidence is not relevant to the inquiry. “Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence”: Bradshaw at para. 50;
v. The standard set out in Bradshaw “will not be met where the corroborative evidence is equally consistent with another explanation. The corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy of the material aspects of the statement”: Nurse at para. 103 citing R. v. Tsega, 2019 ONCA 111 at para. 26; see Bradshaw at para. 48.
80With respect to the standard of proof, the Court in Bradshaw cautioned at para. 49:
While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient. Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities.
The analysis where a hearsay statement is said to be admissible under a common-law exception to the hearsay rule
81In Nurse at para. 59, Trotter J.A. re-iterated the direction given by Charron J. in Khelawon at para. 60 that if a trial judge determines that evidence falls within one of the common law exceptions to the hearsay rule, this finding is “conclusive”, and the evidence is admissible.
82The defence may displace the conclusion that the evidence is admissible by challenging the exception itself: Nurse at para. 60, citing R. v. Mapara, 2005 SCC 23 at para. 15 [Mapara]. Alternatively, in “rare cases”, “evidence that would otherwise fall within a valid hearsay exception may be excluded if it does not meet the requirements of necessity and reliability in the particular circumstances of the case”: Nurse at para. 61. In those instances, the onus will be on the party challenging the admissibility of evidence falling within a traditional exception to show that the evidence should nevertheless be inadmissible: Nurse at paras. 61 and 110; Mapara at paras. 15 and 60.
83A trial judge determining the admissibility of a hearsay statement should explain why a case meets the “rare case” threshold before considering the otherwise admissible hearsay evidence under the principled approach: Nurse at para. 65. Proceeding to the principled analysis is “not automatic”: Nurse at para. 89. The occasions on which this will be appropriate are “rare” or “unusual”: Nurse at para. 89.
84Unfortunately, as noted in Nurse at para. 90, there is little guidance in the case law as to what constitutes a “rare case”. Following his review of the existing jurisprudence from the Supreme Court and the Court of Appeal for Ontario, Trotter J.A. suggested this analytical lens at para. 92:
[T]he basis for asserting a “rare case” must extend beyond the reliability concerns inherently captured in the hearsay exception itself. It must be unique to the case at hand. Further, the reliability concerns must be issues that go to threshold reliability, rather than weaknesses in the evidence that go to weight and can properly be assessed by the trier of fact in determining ultimate reliability.
The Residual Discretion to Exclude Evidence
85Trial judges retain a residual discretion to exclude otherwise admissible evidence “where its impact on the trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit)”: R. v. Candir, 2009 ONCA 915 at para 59 per Watt J.A [Candir]. This will be the case where the prejudicial effect of the evidence exceeds its probative value.
86This discretion is not based on whether the court feels the Crown needs the evidence to prove its case: see R. v. Rowe, 2021 ONCA 684 at paras. 89-90 [Rowe]. The issue is whether the statement is probative of an issue in dispute and whether the prejudicial impact of admitting the statement outweighs its probative value.
Analysis
87I will address the admissibility of the four statements in turn. Before doing so, I confirm that to the extent that I refer to the evidence of various witnesses on the voir dire in my analysis, I have accepted their evidence on the point.
Statement 1 – Verbal Statement to the ambulance paramedic on June 2, 1995
88I find this statement is admissible as a spontaneous utterance. It was made between 5 pm and 5:16 pm, which was just over a half hour from the 911 call and is very proximate to the events described by Ms. Knight. I am satisfied Ms. Knight’s utterances were made when the stress of these very recent events were so present that the possibility of concoction or deception can safely be discounted.
89The photographs of Ms. Knight’s injuries alone demonstrate the significant trauma she sustained. I have no doubt her statements were given while she was still under the stress of the events she had just survived, and the pain (physical and psychological) that was no doubt associated with them. The notion that Ms. Knight fabricated or concocted a narrative to explain what happened to her and how she got these injuries within this period of time is so remote as to be far-fetched.
90In arriving at this conclusion, I have considered that police had spoken to Ms. Knight about what happened before Mr. O’Field spoke to Ms. Knight. There is nothing in the evidence that causes me concern that Ms. Knight was in any way reluctant to speak with these officials, nor that she was repeatedly or pointedly questioned by either (as occurred in Borel, for instance).
91As for the possibility of error in the narration, I am satisfied this issue goes to weight. In any case, given the process Mr. O’Field used to prepare his ambulance call reports, there appears to be a high degree of reliability to the narration of what Ms. Knight said about what had happened to her.
92Since the statement comes within a traditional exception, a finding of admissibility on this basis is conclusive unless the party opposing admission challenges the exception itself (which has not happened here) or when it is one of the “rare” or “most exceptional cases” cases which should also be found to be admissible under the principled analysis before it may safely be admitted: Nurse at paras. 89-95; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para 212 [Starr]; Mapara at paras. 15 and 34; R. v. Kler, 2017 ONCA 64 at para. 79. I have not been so satisfied. The issues raised by the defence, including the possibility that trauma or age affected the perception and memory of Ms. Knight and she may have misreported what occurred, are not unique to this case. I note that insofar as Ms. Knight’s cognition is concerned, notwithstanding the assaults she sustained, the evidence of Mr. O’Field is that Ms. Knight was calm, alert, oriented, and able to answer his questions. She had a normal score on the Glasgow coma scale. There is nothing so remarkable about her mental state at the time of this statement that this case comes within the rare case exception. The weaknesses in the evidence highlighted by the defence go to weight and can be properly assessed in determining the ultimate reliability of the statement.
93Very little focus was given by the parties to the admissibility of the ambulance call report as a business record. Given my conclusion that the statement is admissible as a spontaneous utterance, it is not necessary to consider whether it is also admissible under s. 30 of the Canada Evidence Act.
Statement 2 – Verbal Statement to Officers at the Hospital on June 2, 1995
94I am also satisfied that this statement is admissible as a spontaneous utterance, largely for the same reasons as I have found Statement 1 to be admissible.
95While this statement was given even later after the events Ms. Knight described, it was still sufficiently proximate to those events (in this instance, approximately 3 hours after the 911 call) that I remain satisfied that the prospect of fabrication or concoction can be safely discounted.
96I am also satisfied that Ms. Knight’s condition had not changed significantly since leaving her home. The stress of events and the acute impact of her injuries would have been operative. The further passage of time did not change that.
97I am further satisfied that Ms. Knight expressed no reluctance to speak with the officers at the hospital, and that any questions posed to her were general in nature. Officer Wicklam testified she wanted a pure version of events when speaking with Ms. Knight and that she went over her statement with Ms. Knight afterwards so as not to interrupt her. This indicates Ms. Knight was able to provide her narrative with minimal questioning by police.
98Insofar as the accuracy of what Ms. Knight said is concerned (at least as it is reported by these narrators), following this process, Ms. Knight made a correction. Both officers were trying to be as accurate as possible as they took their notes, of which Officer Wicklam’s case reflected Ms. Knight’s comments verbatim.
99In these circumstances, I find the statement is sufficiently spontaneous and proximate to events to come within this traditional exception to the hearsay rule. Any issues as to the discrepancies in what Ms. Knight is reported to have said will go to weight.
100For the same reasons I have given above, and because the statement is presumptively admissible having satisfied the requirements of a traditional exception, I decline to consider whether this statement is also admissible under the functional approach.
Statement 4 – Sworn Videotaped Statement to Officers on June 5, 1995
101I am satisfied that Ms. Knight’s sworn videotaped statement is admissible under the principled approach.
102I find the statement meets the standard for threshold reliability. I arrive at this conclusion based on the statement’s combined markers of procedural and substantive reliability. I am satisfied that the markers of reliability overcome the hearsay dangers sufficiently that I may rationally evaluate the truth and accuracy of the hearsay when it becomes necessary to assess the statement’s ultimate reliability.
103The procedural reliability markers include the fact that the statement was given under oath following a caution about the consequences of lying. The statement is videotaped. In these circumstances, I am satisfied that the statement is accurately recorded and I am able to observe the declarant’s demeanour at the time the statement was given. Thus, some of the hearsay dangers are overcome by these procedural markers of reliability. The chief hearsay danger that this statement presents is that it may not be tested through cross-examination.
104As is evident by the position of the defence, the hearsay dangers here (in both Statement 3 and Statement 4) relate to the declarant’s memory and perception and the possibility that she may not have accurately reported what she experienced because of cognitive issues. No issue is taken with Ms. Knight’s sincerity. Accordingly, my analysis considers whether the collective markers of reliability overcome these particular dangers.
105I consider that the standard for substantive reliability is high.
106In assessing the reliability markers present here, I commence with consideration of the circumstances in which the statement was given and whether they enhance or detract for the inherent trustworthiness of the statement.
107The timing of the videotaped statement is still relatively proximate to events – just three days later. There is no motive for Ms. Knight to lie or any reason to think she was not telling the truth. The videotaped interview is a model of open-ended questioning, and there is no evidence that Ms. Knight was told about anything else she had previously said about what happened by the officers involved in the video. Plainly, Ms. Knight’s knowledge of events came from the fact that she lived through them – there is no risk she received information from elsewhere. The statement also contains some level of detail, and the demeanour of Ms. Knight when she gave it does not detract from any conclusion that she was doing her utmost to tell the truth.
108Here, the difficulties relate to Ms. Knight’s capacity to perceive or remember events, and Ms. Knight’s condition at the time the statement was made. There is no doubt that Ms. Knight had sustained a traumatic event and this may have rendered her less able to recall what had occurred even three days later. The contradictions within the statement demonstrate that concern. Therefore, while the circumstances in which the statement was given are generally supportive of the trustworthiness of the statement, I am alive to this concern.
109Consequently, I look to extrinsic evidence in assessing the inherent trustworthiness of what Ms. Knight reported. Given the photographs of her injuries and the scene, and the DNA evidence, the core of Ms. Knight’s account of having been the victim of a home invasion where she was beaten and taped to a chair is corroborated. Her reports of how she was assaulted are corroborated by the photographs of her injuries and the observations of those who attended to her. Her report that she let the assailant into the house finds corroboration in the absence of any sign of forced entry. Her report that the assailant was looking for money is supported by the state of the home. These core elements of Ms. Knight’s account are amply corroborated by independent evidence. I have no doubt that Ms. Knight was the victim of a major crime.
110As for the additional things Ms. Knight said about what transpired, such as whether or not the man had anything with him (like the gun she had previously described) or said anything (such as the threats she had earlier reported), the record of her statements shows contradictions in these accounts. The defence relies heavily on these contradictions to demonstrate that there are inaccuracies in Ms. Knight’s account since not all her utterances about what happened can be true. On this basis, the defence says the court should exclude all her statements, including this one.
111I have considered this argument and the clear discrepancies in the accounts given by Ms. Knight as it relates to other details about what went on during the home invasion (e.g. how she came to leave the house, whether the assailant said anything to her of a threatening nature, and whether he had anything with him), as well as her description of the assailant. There is also potentially contradictory physical evidence insofar as Ms. Knight describes being bound with string when tape was found on the chair in her house. There are obvious issues regarding the ultimate reliability of those aspects of her account.
112The concern here is that because of cognitive issues arising from what happened to her or for other reasons, Ms. Knight has misremembered and mistakenly reported what occurred in her home. This is the alternative explanation for her utterances which I consider in determining whether the statement has met the standard of threshold reliability: Bradshaw at para. 48.
113I am satisfied that this alternative explanation is not equally consistent with the explanation that it is true, at least insofar as the core of her account is concerned. The manifest reliability of the core of her account reassures me that she was not so cognitively impaired at the time she gave the statement that her utterances as a whole are so unreliable that they should be excluded in their entirety, as argued by the defence. In other words, even though there are discrepancies in her account, the circumstances in which she gave the statement and the evidence which corroborates the core details she provided allow me to rule out the alternative explanation and find, on a balance or probabilities, that the only remaining likely explanation for the statement is Ms. Knight’s truthfulness.
114I note that in Thyagarajah at para. 10, the Court held that a material inconsistency in the complainant’s evidence was “only one aspect of a much larger evidentiary framework” on which threshold reliability was properly established. It is also worth repeating that what is at issue at this stage is threshold reliability which does not require that reliability be established with “absolute certainty” before hearsay may be admitted: Bradshaw at para. 31, citing Smith at p. 930. I am alive to the inconsistencies here (fully set out in the defence factum for this application), but having regard to the entire evidentiary framework, I find threshold reliability has been made out.
115At this point, I note that the Crown’s reliance on the four statements it seeks to adduce is confined to certain facts (largely those at the core of her account), which appear not to include Ms. Knight’s description of the assailant or some of the other details she provided over the course of her four statements. The Crown states at para. 52 of its factum that it seeks to introduce the statements “to establish that Ms. Knight was assaulted and the circumstances of that assault. The circumstances include that a lone male knocked at her door, pushed his way into her house, bound her to a chair and assaulted her in the hopes of stealing from her. He ransacked her home in the process and then fled. He threatened her. He knew her husband was dead, and nobody was coming to save her.” I view the facts outlined here, with the exception of the alleged threats and the comments about her husband, as elements of the core of her account for which there is considerable corroboration in the photographs of the scene, the photographs of her injuries, and the CFS evidence regarding Ms. Knight’s DNA.
116In this videotaped statement, the core of Ms. Knight’s account was that a man had come into her house, assaulted her, pushed her into a chair, bound her to it, and said he wanted money. This core narrative is corroborated as I have described above. The alternative explanation that she misperceived or misremembered these details is not equally consistent with the explanation that she reported them because they were true.
117As for the remaining details of her account about which there may be a dispute, both parties seek to have those tendered for their truth. It is of strategic benefit for the defence to do so in the face of the admissibility of even one of her statements since the complete record permits a more persuasive attack on the ultimate reliability of the statements. At this juncture I will say only that as regards those additional details, I am alive to the issues highlighted by the defence and will determine the ultimate reliability of Ms. Knight’s account, including any details from her four accounts that are disputed, based on the evidentiary record once the trial is complete and having considered the arguments made by the parties as to what use that evidence may or may not safely be put.
118In the end result, I am satisfied that the truth and accuracy of the videotaped statement can be sufficiently tested: Bradshaw at para. 109; Khelawon at para. 63. I am also satisfied that I will be sufficiently equipped to evaluate the ultimate reliability of the disputed details provided by Ms. Knight in the statement. It is in this sense that cross-examination would add little to the process. Since I am so satisfied, the statement may be admitted.
Statement 3 – Verbal Statement to Officers on June 3, 1995
119I arrive at a similar conclusion regarding the statement given on June 3, 1995.
120This statement does not have any markers of procedural reliability. However, the lack of an oath is not a significant factor here, since it is difficult to imagine that Ms. Knight did not appreciate the need to tell the truth: see Rowe at para 58. I am also not persuaded that the inability to assess Ms. Knight’s demeanour as she gave the statement is a significant deficit, particularly given the observations about her demeanour recorded by the officers who spoke with her. Again here, the concern relates to the inability to test the evidence by cross-examination.
121Ultimately, I am persuaded that the markers of substantive reliability overcome that danger. The analysis is similar to that for Statement 4.
122Here, the circumstances in which the statement was made include that the statement was close in time to the events that occurred; the absence of any motive to lie or misrepresent; the reasonable level of detail in the statement; and the absence of any leading questioning by the officers. I consider as well that Ms. Knight would have understood that she was speaking to a police officer and the seriousness of the circumstances.
123Again here, the concerns about the circumstances in which the statement was taken relate to Ms. Knight’s condition at the time and the possible difficulties with respect to her capacity to have perceived and recollect events. She was groggy for part of the interview, and possibly under the influence of drugs. She showed some confusion.
124On the other hand, the core of her account can be corroborated as I have outlined for statement 4. In this instance, there is also some support in the extrinsic evidence that supports Ms. Knight’s assertion that the assailant threatened to burn the house down and put papers under her chair, since photos of her residence show the taped chair in the dining area with newspaper pages underneath it. While again here there are differences between this account and others she gave, I am satisfied that sufficient substantive reliability has been demonstrated that this statement may also be admitted. The impact of any differences in her accounts will be assessed in determining the ultimate weight of her statements.
125With both Statement 3 and Statement 4, I am satisfied that to the extent there is a competing explanation for anything Ms. Knight said (e.g. she was mistaken or confused and what she reports occurred did not), I will be in a position to choose between the explanations notwithstanding the lack of contemporaneous cross-examination: Bradshaw at para. 40.
126While the Crown has referenced additional evidence it says corroborates the account given by Ms. Knight, I rely only on those aspects of the evidence I have identified above. I prefer not to rely on any of the accused’s utterances or the evidence linking Bob Parker to the accused or Ms. Knight.
Prejude v. Probative Value
127In determining Ms. Knight’s statements are admissible, I have considered whether their probative value is outweighed by their prejudicial effect. I find that they are not. None of the statements implicate the accused as her assailant, though I appreciate that arguments going to the identity of Ms. Knight’s attacker will be made based on the accounts she has provided. However, looking at Ms. Knight’s statements on their own, they contain nothing that is prejudicial to the accused’s fair trial rights. Their probative value is high. The cost/benefit analysis favours admission.
128To the extent that prejudice can be said to flow from the admissibility of the statements in this judge-alone trial because there are inconsistencies between them, any prejudice caused is ameliorated by the approach taken by the defence, agreed to by the Crown, and supported by the law – that is, fairness requires that if one of Ms. Knight’s statements is admitted, all must be: see for instance R. v. S.S., 2022 ONCA 305 at para. 71; R. v. Hawkins (1995), 1995 CanLII 1859 (ON CA), 22 O.R. (3d) 193 (C.A.), 96 C.C.C. (3d) 503 at para. 24, aff’d 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, 111 C.C.C. (3d) 129; and R. v. Fisher, 2003 SKCA 90 at paras. 70-77, leave to appeal refused [2004] 3 S.C.R. viiii. Consequently, the defence may fully address the ultimate weight to be accorded to Ms. Knight’s statements, and the court will have a better record upon which to consider its ultimate reliability findings. I doubt that additional cross-examination of Ms. Knight would produce a significantly better record for the defence to attack the ultimate reliability of some of the utterances.
Cumulative Hearsay
129Given the foregoing, I also find that there is no bar to the admission of the statements because they constitute cumulative hearsay: see Mohamad at para. 123; R. v. J.L., 2021 ONCA 269 at paras. 39-42. I find that the statements are not merely repetitions, and in any event, fairness requires that all the statements be admitted as I have explained above.
130I turn now to the admissibility of the report of Dr. Deck.
The Admissibility of the Post-Mortem Report of Pathologist Dr. John Deck
131Four days after the death of Ms. Knight on November 4th, 1995, an autopsy was performed by Dr. John Deck. Dr. Deck also prepared a post-mortem report which was signed on November 30th, 1995.
132Dr. Deck is now approaching 90 years of age and is unable to testify due to his advanced age. The Crown seeks to have Dr. Deck’s report admitted for its truth. It says the report is admissible under the common law exception of a statement made under a duty and under the principled analysis.
133The evidence that is relevant to the admissibility of Dr. Deck’s report includes the following.
Dr. Deck’s Qualifications
134Dr. Deck’s qualifications included a specialty in neuropathology. He practiced as a neuropathologist for a number of years and was a Professor of Pathology at the University of Toronto. His extensive qualifications are further set out in copies of Dr. Deck’s curriculum vitae filed in the application record.
135Dr. Michael Pollanen is the Chief Forensic Pathologist for the Province of Ontario. In a letter dated August 21, 2020, he provided a synopsis about Dr. Deck, as well as comments about his review of the autopsy report relating to Ms. Knight. Dr. Pollanen states that at the time he practiced, while Dr. Deck was not officially credentialed as a forensic pathologist, he was “widely accepted by his peers and the criminal justice system as an expert in forensic pathology”. By the end of his career, Dr. Deck was the Deputy Chief Forensic Pathologist in Ontario. He was recognized by his peers as an expert in head injury cases.
136Dr. Deck’s expertise is not contested in this voir dire.
Dr. Deck’s Post-Mortem Report
137Dr. Deck’s post-mortem report indicates that the autopsy on Ms. Knight was performed four days after her death, and after she was embalmed. In the section of the report setting out his findings upon his internal examination, Dr. Deck notes a number of organs and tissues that were perforated during embalming, some “extensively”, including the heart and lungs.
138In the section entitled “summary of information and findings”, Dr. Deck sets out his understanding of Ms. Knight’s medical history following the assault upon her on June 2, 1995. He indicates at the end of that paragraph that after Ms. Knight was transferred to a chronic care hospital on July 26, a CT scan done on August 4th showed re-bleeding. He then writes: “She developed congestive heart failure and on the 20th of August she developed left hemiparesis, left facial weakness, renal failure and died”.1 In discussing his findings, Dr. Deck noted that “[c]entrolobular necrosis of the liver suggests terminal congestive heart failure but other signs of failure which may have been present were obscured by the embalming process.”
139The sum total of the opinion provided thereafter is as follows:
Cardiac, respiratory and renal failure can be considered as complications of the debilitated state that resulted from cerebral injuries complicating raised intracranial pressure from subdural hemorrhage.
CAUSE OF DEATH:
… in my opinion the cause of death was: COMPLICATIONS OF SUBDURAL HEMORRHAGE FROM BLUNT FORCE INJURIES TO THE HEAD.
Medical Records and Photos
140While many of Ms. Knight’s medical records are available, there is a gap in the records available between early August and her death on November 4th, 1995.
141The photos of Ms. Knight’s injuries, the scene where she was assaulted, and from her autopsy remain available.
Subsequent Review of Dr. Deck’s Report
142Two forensic pathologists have reviewed the evidence available at this time. Both have indicated that they are unable to independently review the case, in part, because of the gap in medical records. Both pathologists state that they can neither dispute nor confirm Dr. Deck’s conclusions.
Dr. Michael Pollanen
143In a letter to Crown counsel filed in the application record, Dr. Pollanen states:
Dr. Deck’s opinion on the cause of death in the autopsy report in this case is not independently reviewable. This implies it cannot be independently verified by another forensic pathologist reviewing the case today. Furthermore, the autopsy report does not explain the reasoning, or the precise factual basis, for his opinion on the cause of death.
Overall, I am unable to reconstruct how Dr. Deck arrived at the conclusion he opined; however, neither can I exclude his opinion as unreasonable. Essentially, I am unable to agree with his opinion, but I cannot exclude his opinion as untenable.
Dr. Jeff Tanguay
144Dr. Jeff Tanguay is an anatomic and forensic pathologist. He is the Director of the Kingston Regional Forensic Pathology Unit.
145Dr. Tanguay gave evidence in this voir dire. During his evidence, he expanded on the conclusion he provided in a letter to Crown counsel which is part of the application record. In his letter, Dr. Tanguay states: “[i]n my opinion, there is insufficient pathological material available to render an independent forensic pathology review of the death. There are minimal postmortem photographs, and other materials including microscopic slides and rough notes were not located to allow me to review the case independently”. He further testified that while he had “plenty of historic information” required in the first step of a typical autopsy, he didn’t have “much else”. He said:
There were very minimal pictures of the autopsy taken. For example, I don’t think the inside surface of the brain was even depicted. So, I can’t evaluate that, independently. The microscopic sections, of which Dr. Deck took several, I couldn’t … they could not be located, in Toronto, and therefore I could not examine them independently. So, really, I’m left with the history, as provided – mostly from medical records – and then an autopsy report. So those were my major limitations. I don’t have much material before me. Now, I have reviewed cases where there’s fifty or a hundred pictures of the autopsy. And, I mean, this has changed, over time. Back in the 90s, we maybe didn’t take as many pictures, but now we take a lot more pictures, to allow for independent reviewability. … So that’s what I’m lacking, in this case. You know, the other thing that struck me, in this case, is that I really did not have a good understanding what happened between the July admission and death. So, that was a whole “black box” to me that, you know, was a problem for me.
146Dr. Tanguay additionally gave the following evidence:
a. At the time of the autopsy, Dr. Deck was better equipped than he was to render an informed opinion in this case and had the type of forensic evidence that a pathologist should have;
b. While he was unable to agree with Dr. Deck’s conclusions, he was not saying he disagreed;
c. Dr. Deck’s conclusion was reasonable, though he qualified this by adding “from what I can see, from a reading of the history and his report”;
d. Dr. Tanguay confirmed that the medical records that remain available show there were complications from the subdural hematoma. He also testified that it was hard to know if Ms. Knight’s pleural effusions were a complication of the subdural hematoma because elderly and frail people commonly develop pneumonia in hospital as a result of being in a debilitative state in a hospital bed. It was thus hard to know if this was “directly related” to the neurological symptoms. However, he agreed it was reasonable to conclude that the reason she was in hospital was because of a subdural hematoma, and that the associated treatment (e.g. inserting a breathing tube during surgery) might also have been a risk factor for developing pneumonia;
e. Dr. Tanguay agreed there were blunt-force injuries to Ms. Knight and there were complications from a subdural hemorrhage. He said it was possible, but he could not conclude, that the events of June 2nd and the injury documented in the CT scan of July 12th related to the same thing;
f. He agreed with Dr. Pollanen that:
i. He was unable to agree with the opinion of Dr. Deck or exclude it as untenable;
ii. That the case is not independently reviewable;
iii. The autopsy report does not explain the precise factual basis for Dr. Deck’s opinion on the cause of death;
iv. He is unable to reconstruct how Dr. Deck arrived at his conclusion.
g. He agreed it was fair to say that there was lack of reviewable forensic evidence and all that was available in Dr. Deck’s report (other than the “data points regarding organ weight and that kind of thing”) were statements of conclusion. He said “there’s a lot of conclusions I cannot evaluate”;
h. Dr. Tanguay confirmed that where medical staff suspect a person has been “subject to foul play” they should not be released to a funeral home. The coroner should be contacted. Given the state of the medical records, he could not say if any of the medical staff who were treating her at the time thought Ms. Knight’s death was unnatural. He could only say that “someone released her to a funeral home before a coroner probably was involved”;
i. The embalming process introduced an unknown factor into the pathological examination which was limiting. Dr. Tanguay acknowledged the puncturing of Ms. Knight’s heart and said that the fluids that might have built up around the lungs from heart failure may also have been removed in the embalming process. To some extent, the prior embalming curtailed the scope of scientific examination that was possible. He agreed this could “place limitations” on the determination of the cause of death;
j. Dr. Tanguay could not say how Dr. Deck arrived at the conclusion that Ms. Knight had renal failure, and whether this was a conclusion derived from medical records or from looking at the kidneys under the microscope. He did not find anything in the medical records to support this conclusion;
k. Dr. Tanguay agreed that Ms. Knight had a number of medical factors present that could occur naturally and with age. When asked if she could have died of old age, he said “Well, that’s a possibility”;
l. Dr. Tanguay explained that in looking for causes of death, he is also looking for intervening causes. He said “you know, I was struck by the period of time between the injury and the diagnosis of subdural, and I was looking for evidence of an intervening cause in her chart, but I did not see anything there. But it was also kind of a “black box” so to speak”. He testified that the medical records documented that Ms. Knight had a fall while in hospital on July 15th during which she received a small laceration to her forehead and one of her wrists. He agreed the fall was taken seriously enough that staff instituted a concussion protocol, and a CT scan was subsequently done. He agreed this fall could potentially be an intervening cause, or an intervening “exacerbation”. While he acknowledged that there were signs of a head injury before this fall, he could not exclude the fall on July 15th as the cause of death;
m. He was unable to come up with “an evidence-based opinion” on the cause of death;
n. It was fair to say that there is “no forensic evidence linking the subdural hematoma to the assault” or to blunt-force trauma. When it was suggested to him that “we cannot forensically tie the assault to her death”, he answered, “not definitely”.
The Positions of the Parties
The Crown
147The Crown emphasizes that Dr. Deck was a pathologist specializing in neuropathology and that he was especially qualified to discuss the nature of the brain injury being caused by blunt force, the healing response and age of the injury, and its relation to other bodily functions. His report is first-hand and signed. It was written contemporaneously with the post-mortem examination recounting what he did and saw including his opinions. Further, medical records corroborate aspects of his report, including that Ms. Knight had injuries to the left side of her head; CT scans show significant fluid build-up in her brain due to a chronic brain injury to the point that it had to be “drained”; and there were complications to the brain injury in that it re-bled. The Crown says the fact that there was a post-mortem examination is confirmed by photos.
148The Crown argues that Dr. Deck’s report is not qualitatively different than nurses’ notes and falls within the common-law exception relating to statements made in the course of one’s duty which was recognized and explained in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608, 14 D.L.R. (3d) 4 [Ares]. In that case, the court held that hospital records, including nurses’ notes, were presumptively admissible because they were made contemporaneously by someone “having a personal knowledge of the matters then being recorded and under a duty to make the entry or record”: Ares at p. 626. The court held that in these circumstances, the records “should be received in evidence as prima facie proof of the facts stated therein”: Ares at p. 626. The Crown argues the same should occur here.
149The Crown further submits that the report is admissible under the principled analysis because the threshold reliability of the statement is made out. The Crown argues that unless the post-mortem report of Dr. Deck is admitted, the court will lose the most knowledgeable medical voice on factual causation in this case. It says procedural reliability is established because there are adequate substitutes for testing Dr. Deck’s report even though it cannot be tested by cross-examination. The court will have other means of rationally evaluating whether what Dr. Deck said was true and accurate. Substantive reliability is made out because the circumstances in which Dr. Deck’s report were made make it inherently trustworthy. There is also corroborative evidence, particularly from the medical records, which corroborate material aspects of Dr. Deck’s report.
150The Crown acknowledges the court’s residual discretion to exclude the report where the evidence is more prejudicial than probative. Counsel emphasizes that “this discretion has nothing to do with whether the Court feels the Crown needs the report to prove its case”. It submits the report is highly probative. As for the potential prejudice caused by the admission of the report, the Crown says the cost/benefit analysis does not require its exclusion, particularly in this judge alone trial where the defence has shown (through the cross-examination of Dr. Tanguay and possibly by calling its own expert witness) that it is able to effectively highlight its “problem areas”. In these circumstances, there is no danger that the court will be unable to properly assess the weight to be placed on the report. Ultimately, the Crown submits that Dr. Deck’s report is reliable enough to be admitted into evidence.
The Defence
151The defence does not contest either the relevance or necessity of the report. It says that what is at issue is the reliability of the opinion expressed in the post-mortem report and the prejudice that the Respondent would face if the opinion is admitted for the truth of its contents when it is otherwise unchallengeable by the defence.
152The defence cites a number of authorities for the proposition that hearsay evidence should not be admitted where it also includes opinion evidence and argues that the report is not admissible under either the common-law exception or the principled approach. It says there is a difference, on the first basis of admissibility argued, between factual observations recorded in medical records and opinions expressed in medical records and reports.
153With respect to the admissibility under the principled approach, the defence says the most significant hearsay danger arises from the interplay “between the possibility that Dr. Deck misperceived or misinterpreted what he saw at the post-mortem examination and how admitting the report would deprive the defence an ability to test that possibility through cross-examination”. The indicia of reliability relied upon by the Crown do not address the most significant hearsay danger, that is, that Dr. Deck made a mistake when he reached his opinion. The evidence in the medical records does not assist in overcoming this danger. The opinion cannot be tested because Dr. Deck did not articulate how he came to his opinion.
154The defence reminds the court of the findings of the Goudge inquiry (as well as the circumstances giving rise to it) and the fallibility of even well qualified expert witnesses. It emphasizes the importance of the testing of expert evidence by means of cross-examination, and the shift in the jurisprudence from a “trust me” approach to expert evidence to an evidence based “show me” approach: R. v. Millard, 2018 ONSC 4410 at para. 60. The Goudge Report, cited in Millard at para. 60, identifies as one of four predicate conditions for practicing a “show me” strategy for ensuring the integrity of expert evidence that
(4) the expert must clearly express not only the opinion, but also the complete reasoning process that led to it, and must be candid about the shortcoming of the theory or technique employed and the opinion reached, offering fair guidance on the level of confidence that can be placed in the opinion expressed.
155The defence submits that the Crown’s argument suggests that the hearsay dangers are addressed because both parties have access to the report and have retained their own forensic pathologists who could speak about any shortcomings in Dr. Deck’s report. It says this proposition is undermined by the fact that Dr. Deck’s report lacks anything outlining the reasons for his opinions, what observations he did or did not rely on, what other facts he may have taken into consideration, including potential shortcomings or factors that may detract from his ultimate conclusion. While the Crown may suggest that Dr. Deck based his opinion on what he saw in the post-mortem examination and knew of Ms. Knight’s medical history, in the absence of reasons tied to specific observations, the report is basically a bald conclusory statement which cannot be meaningfully reviewed. The defence says that while the circumstances surrounding the preparation of the report may allay concerns about Dr. Deck not being truthful or accurate about what he observed, they do not preclude the very real possibility that he was mistaken in his opinion, a possibility the defence says is supported by the fact that two reviewing pathologists are unable to confirm it.
156The defence notes that evidence may be prejudicial in different ways, including if it cannot be adequately tested and challenged through cross-examination: R. v. Frimpong, 2013 ONCA 243 [Frimpong] at para. 18. It says that far from reducing the prejudice that will be occasioned if the report is admitted, Dr. Tanguay’s cross examination highlights the difficulties in assessing Dr. Deck’s opinion. Counsel argues that the risk of an injustice occurring if the report is admitted is very real because if admitted, the defence would not have any meaningful way to respond to the unreviewable opinion that Ms. Knight’s death was due to blunt force injuries to her head.
The Legal Principles
157In addition to the law I have already summarized, the following body of law applies to consideration of the admissibility of Dr. Deck’s report.
The Common-Law Exception – Statements Made in the Course of Duty
158The decision in Ares established a common law exception to the hearsay rule. The court held at p. 626 that:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so.
159Subsequent academic texts and jurisprudence have suggested that where the following criteria are met, a record will be admissible: (i) an original entry; (ii) made contemporaneously; (iii) in the routine course; (iv) of business; (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it; (vi) who had a duty to make the record; and (vii) who had no motive to misrepresent: see R. v. Larsen, 2001 BCSC 524 at para. 8 [Larsen] citing R. v. Wilcox, 2001 NSCA 45 at para. 49; R. v. Monkhouse, 1987 ABCA 227, [1988] 1 W.W.R. 725, 61 C.R. (3d) 343 (Alta. C.A.).
160As noted in Larsen, the rationale for the admission of such records was that a record created that met these criteria would demonstrate circumstantial guarantees of trustworthiness. In part, this is based on the assumption that “a declarant would fear censure and dismissal should an employer discover an inaccuracy in the statement”: see para. 9.
Can hearsay evidence include opinion evidence?
161The defence cites a number of authorities which have held that hearsay evidence should not be admitted where it includes opinion evidence. Aside from R. v. West, 2001 CanLII 28424 (ON SC), [2001] O.J. No. 3413, 45 C.R. (5th) 307 (S.C.) [West], these decisions were made in civil cases where a party was attempting to tender an expert report without the requirement of calling a witness who was available to testify. While the concerns about admitting untested opinion evidence expressed in those cases is noted, ultimately, they provide little assistance in the context of a hearsay application where the declarant is deceased or unavailable to testify.
R. v. West
162West, however, is such a case. In that case, Hill J. considered the admissibility of the report of a forensic scientist who was deceased at the time of trial 31 years after his involvement in the case.
163The evidence in that case related to forensic testing of a vaginal swab taken from the deceased who had been sexually assaulted and murdered. The declarant was a senior forensic biologist at the Centre of Forensic Sciences (CFS). He analyzed the swab for the presence of blood and semen and also did blood typing. The declarant had died by the time the trial took place. The prosecution sought to have his report admitted for various purposes which engaged consideration of the evidence for its truth.
164Unlike this case, the application record contained the handwritten lab notes of the declarant in addition to his report. The notes recorded dates of exhibit examinations and tests together with the findings and conclusions: para. 21. Summaries of the findings were also set out in hand-written notes. Some subsequent testing was done on items worn by the victim which identified spermatozoa thereby confirming the declarant’s conclusion: para. 24. Two scientists testified at the preliminary hearing in the case and provided their own expert opinions, which made extensive reference to items originally tested by the declarant.
165While the admissibility of the report was argued with reference to the traditional and principled exceptions, Hill J. found the report was admissible for its truth under the principled exception. He considered the factors that buttressed admissibility under the traditional exceptions, including the statement or declaration made in pursuance of a duty.
166He noted that had the declarant been “called to testify at a trial 31 years after his forensic examinations, in all likelihood, he would be unable to recollect the specific testing” done in that case: para. 41. Consequently, necessity would likely have been made out even if the declarant had not died. The circumstances are similar in this case, where it seems unlikely that Dr. Deck’s recollections of his work would have been sustained for the 27 years between the time of his report and this trial.
167Hill J. considered whether the fact that this hearsay statement involved opinion evidence precluded its admissibility. He noted that there was disagreement in the jurisprudence about whether opinion, subjective observations, and conclusions in writing were admissible for their truth. Nevertheless, he concluded that hearsay could be admitted even if it included opinion evidence. He wrote at paras. 63-64:
There is of course a continuum of subjective opinonism with observations positioned at one end and conclusions clearly steeped in expert skills at the other. In some instances, observations of the expert declarant, while informed by a measure of special knowledge or expertise, are arguably little more than the expression of opinion permitted by a lay witness (Ares v. Venner, supra (skin colour and relative temperature of skin); H. (S.), supra (emotional condition of patient); R. v. S. (G.), supra (observations of patient behaviour); Conley v. Conley, supra (physical movements of subjects and opportunity for togetherness). On the other hand, some opinion statements are almost wholly the product of application of specialized skill and experience as in the hard science of forensic pathology: R. v. Larsen, supra (cause of death as asphyxia). Documentary Evidence in Canada, J.D. Ewart et al. (1984) at pages 65-7; Report on Evidence, supra at pages 25 (Draft Evidence Code, s.27), 27 (Draft Evidence Code, s.31(a)), 69-70, 72-3; Canadian Criminal Evidence, P.K. McWilliams. (3rd ed., 1997) at page 8-16, § 293; and, United States Uniform Rules of Evidence—Federal Rule 803(6) recognize the admissibility of opinion evidence in a document where the opinion evidence would otherwise be admitted were the declarant available to testify. In my view, there is no longer a compelling case for adherence to the shopbook vestige of the traditional 2001 CanLII 28424 (ON SC) exceptions. The conclusion of the authors in The Law of Evidence in Canada, supra at page 218, § 6.137, is correct:
Accordingly, the exception now appears to include recorded opinions, so long as they fall within the declarant’s normal scope of duty.
It may be that, in a given case, the novelty of the science at issue, the high degree of subjectivism as in psychiatric assessment, or the centrality of the hearsay opinion to the ultimate issue in the proceeding, will attract application of the court’s residual discretion to exclude evidence whose prejudicial effect outstrips its probative value: McCormick on Evidence, supra at page 266, § 293.
168Hill J. noted the danger presented by the lack of presence and cross-examination of the declarant. He then analyzed whether the circumstances surrounding the making of the report cast the evidence as inherently trustworthy.
169Amongst the factors considered in finding the report met the standard of threshold reliability, Hill J. considered the circumstances in which the statement was made which were relevant to the “avoidance of mistake” at para. 84. He noted that “the work of a forensic biologist in a homicide case requires care and diligence of the highest order”, and that this impressed “the laboratory work with attention to accuracy”. The declarant’s report was also the subject of quality control and was checked by the head of the CFS biology section, “a measure aimed at detection of mistake or ambiguity”. He noted that the declarant would also have known he would likely be cross-examined under oath about the accuracy of his report. He concluded that “the stakes at hand, the supervision, and the stigma of public embarrassment in the event of error, all point to statements made in an environment designed to be error free”: at para. 84.
170In concluding that the report’s probative value outweighed its prejudicial effect and should not be excluded pursuant to the court’s residual discretion, he noted that “simply because the report is admitted in untested form does not preclude the defence from challenging its contents … The defence has access to the declarant’s notes and is in a position to examine CFS witnesses at trial who knew the declarant, his qualifications, his reputation for care and attention, and the standard tests he conducted”: at para. 86. At this stage of the analysis (Starr was the law at the time and precluded the consideration of corroborating evidence in assessing threshold reliability), he also relied on the corroborative testing that had been done by the current forensic team: at para. 87. This fortified his conclusion about the probative value of the hearsay evidence.
R. v. Larsen
171Subsequently, one of the decisions cited by Hill J. in West, Larsen, was reviewed by the Court of Appeal for British Columbia in R. v. Larsen, 2003 BCCA 18.
172Larsen involved the murder of a teen-aged girl in 1978. The victim had been sexually assaulted and killed. Semen was found in her body and on her clothing. DNA testing in 1998 revived the investigation and led to a prosecution. By this time, the pathologist who had done the autopsy, and prepared a supplemental report, had died. Another pathologist (Dr. Harris) was also involved during the investigation in 1978 and gave evidence at trial. While he had examined the victim’s body and had attended the field where the victim’s body was discovered, he did not do the autopsy. Dr. Harris’ evidence about his external examination of the body confirmed two important observations made in the autopsy reports.
173The original autopsy report set out the pathologists’ findings and observations from the autopsy but offered no opinion about the cause of death. The supplemental report was made 14 months later. It provided an opinion that the victim had died as a result of asphyxia. It also stated that the mechanism of the asphyxia was “not entirely clear”.
174The trial judge found that the first report was admissible under the common law exception of declarations made in the course of duty but that the second report was not because it was not made contemporaneously. However, both reports were ruled admissible under the principled exception to the hearsay rule.
175On appeal, the defence argued that the trial judge had failed to consider the possibility that the pathologist’s observations and conclusions were mistaken and that he had incorrectly ruled that other evidence casting doubt on the reliability of the pathologist’s statements was inadmissible.
176In response to this argument, the court reasoned at para. 22 that:
While the possibility that the observations of the absent declarant were mistaken is a relevant factor on the question of reliability, the possibility will take on greater or lesser weight depending upon the circumstances in which the statement was made. In R. v. Smith, the circumstances surrounding the statement in question were such that the possibility of mistake was overriding on the question of reliability. That will not be so in every case.
177Since the defence had not pursued the means available to it to adduce the evidence it said had been improperly excluded, the court was not persuaded by this argument. It held that “as there was no evidence properly before him from which he could have concluded that Dr. Sturrock’s recorded observations were mistaken, the trial judge did not err in failing to expressly consider that possibility”: at para. 28. Further, the court reasoned that because the pathologist had offered no opinion about whether the death was a homicide or the mechanism of the asphyxia, the additional evidence cited by defence did not give rise to the inference that the reports were unreliable. It concluded at para. 30:
Thus, the appellant’s objection does not relate to the accuracy or reliability of anything stated in Dr. Sturrock’s reports. Rather, it amounts to an assertion that Dr. Sturrock might have expressed, on the basis of the observations in his reports, conclusion and opinions favourable to the appellant had he been available to testify at the trial. That is not a ground for excluding the reports from evidence on either the established exception or on the principled approach.
178The court also addressed the argument that the reports should have been excluded as an exercise of the trial judge’s residual discretion since the absence of an opportunity to cross-examine the pathologist rendered the trial unfair. The court found that there was nothing in the reports or in the circumstances in which they were prepared that would cast doubt on the reliability of the pathologist’s “recorded observations and assessments”, or that he would not have been a credible witness. The defence was also not taking issue with the finding that the cause of death was asphyxiation (it argued that the victim had died accidentally after swallowing semen during consensual fellatio or that she was subsequently strangled by someone else). It was the evidence of other pathologists at trial which suggested that the death had occurred during the sexual assault and the defence had had a full opportunity to cross-examine those experts about their opinions that the cause of death was manual strangulation during the course of sexual assault. In these circumstances, the court held that it was “difficult to see how a cross-examination of Dr. Sturrock could have produced anything that would have significantly weakened these opinions”. Consequently, the admission of the reports without cross-examination caused minimal prejudice (if it caused any at all) and no prejudice to the integrity of the trial process: at para. 35.
179Finally, the court considered the trial judge’s ruling admitting the first report as a declaration made in the course of duty. On that issue, the defence argued that the report could not qualify as a statement made in the course of duty because it contained “expert observations and opinions”: at para. 36. The court dismissed this argument summarily stating that the principle applied in respect of the observations, assessments, and opinions recorded by the pathologist in his first report and the trial judge had not erred in finding that the first report fell within the traditional exception: at para. 38.
Analysis
180I find that the evidence meets the requirements of a declaration made in the course of duty. While West and Larsen are not binding upon me, I agree with the conclusion reached in those cases that opinion evidence may be admitted within this common-law exception (or under the principled exception) and is not a bar to its application: see West at paras. 58-63; Larsen, 2003 BCCA 18 at paras. 35 and 38. The statement in this case meets the remaining criteria set out in the case law for the admission of a declaration in the course of duty. As I understand the law in Nurse, further analysis is not required as to whether the statement also meets the test for admission under the principled exception.
181I will say, however, that I recognize there is much to be said in support of such a finding. The statement was not made in circumstances of suspicion. That the statement meets the criteria for admissibility of a declaration in the course of duty shows that the statement was created in circumstances that demonstrate a circumstantial guarantee of trustworthiness. I have no doubt that Dr. Deck had no motive to misrepresent or any interest in making the statements he made. The statement is recorded. The report was written contemporaneously with the autopsy Dr. Deck performed. I have no reason to believe anything other than he took his duties as a pathologist seriously, including the preparation of his report. It is also an easy conclusion that given Dr. Deck’s duties and the professional standards he was obliged to follow that he would have been aware of the consequences of giving a false statement. The statement thus demonstrates certain markers of procedural reliability as well.
182Nevertheless, I find that the hearsay danger posed by this evidence gives rise to such significant prejudice that the exercise of my residual discretion to exclude the evidence is required. In this instance, the hearsay danger is primarily that the defence will not be able to adequately explore the basis for Dr. Deck’s opinion and its reliability by way of cross-examination. None of the corroborating evidence cited by the Crown goes to the material issue contained in the opinion of Dr. Deck. The inability to adequately explore the basis for Dr. Deck’s opinion and its reliability are not overcome by the presence of corroborating evidence in this case. I rely on my residual discretion to exclude the evidence because I find that the probative value of the evidence does not exceed the prejudicial effect of its admission.
183I pause here to note that relevance and probity are not the same thing. There is no doubt that Dr. Deck’s report is highly relevant. But I must also consider its probative value. In doing so, I take guidance from the comments of Rosenberg J.A. in R. v. Pascoe, 1997 CanLII 1413 (ON CA), [1997] O.J. No. 88, 113 C.C.C. (3d) 126 [Pascoe] for the Court of Appeal for Ontario at paras. 41-48. In particular, I note the following principles:
a. Whether or not the evidence is “necessary” in the sense of being vital to the prosecution is not the “sole” consideration on the question of probative value (para. 42);
b. The probative value of evidence may be assessed by scrutinizing the evidence to “determine its tendency to establish the proposition that it is offered to prove” (para. 42);
c. In considering the probative value of evidence, a judge should also take into account the frailties in the evidence and, in the case of an opinion, the weight that might be attached to it (para. 43).
184While the facts in Pascoe related to opinion evidence on a very different issue, it is of some relevance to this case that Rosenberg J.A. found that, as in this case, the expert witnesses did not provide any real basis for their opinion. Rosenberg J.A. found that post-R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, expert evidence had to be subject to very careful scrutiny. In Pascoe, the witnesses were asked to give an opinion on the “ultimate and only live issue in the case”. Accordingly, the prejudice to the appellant in admitting the evidence was “extremely high”. The Court ultimately held that the trial judge had erred by failing to “consider that the manner in which the evidence was led, without any foundation facts, completely deprived the jury of the means of evaluating the expert opinion and deprived the appellant of the opportunity to fairly challenge the strength of those opinions” [emphasis added]: para 51. In these circumstances, when the probative value and prejudicial effect were “properly analyzed”, it was “clear” that the prejudicial effect far outweighed the probative value of the evidence, and it ought not to have been admitted: para. 60.
185Here too the dangers posed by the inability of the defence to adequately test the evidence in cross-examination are significant. I agree with the defence that Dr. Deck’s conclusion in the post-mortem report is a baldly stated opinion that cannot be meaningfully assessed by other experts, let alone the court, given other deficiencies in the evidence given the passage of time. It is hard to see what probative value an unsupported and unexplained expert opinion may have, or the weight it could legitimately be given if it was admitted at trial given the paucity of additional evidence to permit a reasoned assessment of the weight it deserves. I find that the probative value of the evidence is so diminished in these circumstances that it does not survive the cost/benefit analysis in considering whether to use my residual discretion to exclude the evidence.
186The Crown’s argument for admissibility rests heavily on the fact that Dr. Deck was well qualified to conduct the autopsy, and, by virtue of his expertise as a neuropathologist, and his access to all the information available at the time that would be necessary to form an opinion, his report is the best evidence on the issue of what caused the death of Ms. Knight. I agree with the defence that in the post-Goudge era, the undoubted expertise of Dr. Deck is not a sufficient answer to the significant reliability concerns posed by his untested opinion when there is insufficient additional information available now to permit it to be meaningfully reviewed and supported.
187It is also significant to my analysis that his opinion relates to a central issue in dispute in the Crown’s allegation of manslaughter. As the Crown acknowledged in oral submissions, causation is a “hot” issue on this count. While the facts that bear on that issue may be broader than Dr. Deck’s opinion (the Crown has emphasized in its written submission the distinction between factual and legal causation), Dr. Deck’s opinion goes to the heart of the causation issue and is very important evidence. As I understand counsel’s submissions, Dr. Tanguay will not testify further at trial about the death of Ms. Knight and there will be no additional evidence that is likely to affect the assessment of the weight to be given to Dr. Deck’s opinion if admitted.
188Dr. Tanguay’s evidence gives rise to a number of concerns, including the inability to assess or independently review:
a. How Dr. Deck reached his conclusion;
b. If or how the impact of the embalming process on the examination was considered by Dr. Deck;
c. If or how other issues, such as Ms. Knight’s advanced age and her fall on July 15th, were considered by Dr. Deck;
d. When and in what circumstances Ms. Knight developed renal failure.
189Given the limited evidence available and considering the contents of the report of Dr. Deck, Dr. Tanguay cannot provide an “evidence-based opinion” on the cause of death. The concerns raised in Dr. Tanguay’s evidence about Dr. Deck’s opinion about the cause of death are so significant that it is hard to see how a trier of fact could safely rely on Dr. Deck’s opinion. In addition to not being able to adequately test the opinion of Dr. Deck, the deficiencies in the evidence which remains available are also such that the defence would not be in a position to present its own evidence about the cause of death. I find that admitting the evidence in these circumstances would cause significant prejudice to the defence.
190I have considered that this is a judge alone trial and that I am confident that in my ultimate analysis of the issues in the case I would be careful to guard against faulty reasoning and other potential prejudicial impacts of the evidence. Even so, where it is clear that the evidence is so problematic that it would not be entitled to much if any weight, the cost/benefit analysis favours exclusion of the evidence. In Frimpong, the Court of Appeal for Ontario confirmed that “[e]vidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process”: para 18. Pascoe effectively affirmed this principle too. This type of prejudice is present here.
191In arriving at my conclusion, I have considered the circumstances and reasoning in the cases most like this one, such as West and Larsen (both at trial and on appeal), and the parties’ additional written submissions about them. Expert opinion and pathology reports were admitted in those cases on bases similar to those argued by the Crown in this case. However, the circumstances in each of those cases were very different than are present here.
192In West, the Court (and other scientists) had significant evidence available that described the testing procedure that was followed by the declarant, including his lab notes. It appears that other scientists were, as a result of the additional material available to them beyond the expert report, able to confirm its conclusions. The defence also would have had the ability to test the procedure and the results. Further, and as argued by the defence in this case, the subject matter of the testing was the presence of blood, the type of blood and the presence of semen and spermatozoa, and the opinion would be expressed as a binary – yes or no. I agree with the defence that “the proffered evidence, while not mere measurements, was far closer to that end of the spectrum between objective measurement and expert opinion relating to a matter more dependent on an interpretation of the findings.” The possibility of misinterpretation here is correspondingly greater.
193In Larsen, where pathology reports were admitted, an opinion was contained only in the expert’s supplementary report. However, another pathologist had also been involved at the time of the investigation and had examined the victim’s body (externally) and the scene of the crime. That expert was available to testify at trial and confirm a number of observations and conclusions contained in the reports, neither of which described a mechanism for the cause of death. In contrast, here, two forensic pathologists who have reviewed the matter have said there is insufficient material to conduct an independent review, let alone confirm Dr. Deck’s conclusion. That the trial and appellate courts in Larsen did not have residual concerns about the reliability of the opinion in the second pathology report is not surprising given the independent evidence that was available to confirm and explain the opinion at issue. The record here is very different.
194The dangers posed by the inability to adequately test this opinion evidence in cross-examination are acute. The conclusion in Dr. Deck’s report goes to the heart of a central issue on this count and the extent of the Respondent’s potential legal jeopardy. The conclusion cannot be explained or reviewed. The probative value of the evidence is accordingly significantly diminished, while the degree of prejudice upon admission of the evidence would be high. I conclude the cost/benefit analysis in determining whether to exercise my residual discretion requires the exclusion of the evidence.
Conclusion
195For the reasons I have provided, the four statements of Henrietta Knight are admissible at trial, while the report of Dr. Deck is not.
LACELLE J.
Released: September 20, 2022
COURT FILE NO.: CR-19-45
DATE: 20220920
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL WENTWORTH (a.k.a MICHAEL VERNEY)
PRe-trial APPLICATION DECISION
(HearSAY STATEMENTS of henrietta knight and dr. john deck)
LACELLE J.
Released: September 20, 2022
Footnotes
- On the face of it, this statement is at odds with the fact that Ms. Knight died on November 4th, 1995. It is not clear precisely what occurred on August 20th, and in particular when Ms. Knight developed renal failure. As I understand the evidence, the events described by Dr. Deck in this sentence occurred in the period in which there are gaps in or no medical records currently available.