Superior Court of Justice

COURT FILE NO.: CR-22-018

DATE: 20221024

ONTARIO

BETWEEN:

HIS MAJESTY THE KING

– and –

GEORGE BRAZIER

Defendant

COUNSEL:

Indy Kandola and Susan Safar for the Crown

Anthony G. Bryant and Stephanie Marcade for Mr. Brazier

HEARD: September 19, 20, 21, 23 and 30, 2022

RULING ON THE CROWN’S APPLICATION TO ADDUCE MICHELLE MCTAMNEY’S PRELIMINARY HEARING TESTIMONY AS HER SUBSTANTIVE EVIDENCE AT TRIAL

C. BOSWELL J.

[1] Trials are human endeavours. Humans are subject to the vicissitudes of life, including unwelcome illnesses and death.

[2] Sometimes illness or death can interfere with the ability of a witness to testify at trial. Section 715(1) of the Criminal Code provides for the admission of a witness’s evidence taken on an earlier occasion – for instance at a preliminary inquiry – where the witness refuses to testify at trial or is unable to testify at trial due to death, illness or absence from Canada.

[3] Michelle McTamney is an important witness for the Crown in its case against George Brazier. She testified at the preliminary inquiry into the charges of drug trafficking and manslaughter he faces. Ms. McTamney suffers from addiction and mental health challenges and is, according to her family physician, too ill to testify at trial. The Crown applies, under s. 715(1), to adduce a transcript of her testimony at the preliminary inquiry as her substantive trial evidence. The application is opposed by Mr. Brazier.

OVERVIEW

[4] James Glover was a young man with a drug problem. He sought help for it in the form of a residential treatment program offered by the Waypoint Centre for Mental Health in Penetanguishene. He was participating in the program when the first wave of the COVID-19 pandemic washed across Ontario in March 2020. Individuals residing in congregate living facilities were at particularly high risk of contracting the virus. In an effort to attenuate the risk posed to patients, Waypoint released Mr. Glover and others from their facility prior to the completion of the program.

[5] Mr. Glover sadly and immediately relapsed. He purchased drugs the day he was released, including fentanyl and cocaine. He ingested those drugs and died.

[6] The Crown alleges that Mr. Brazier is the person who sold Mr. Glover the drugs that killed him. He faces charges of drug trafficking and manslaughter.

[7] Ms. McTamney’s evidence is central to the Crown’s case against Mr. Brazier.

[8] Ms. McTamney and Mr. Glover met at Waypoint and became friends. They were both released from Waypoint on March 23, 2020 and spent most of that day together. She left him at about 6:30 p.m. in his bedroom at his parents’ residence in Wasaga Beach. His parents found him dead in his room the next morning.

[9] Ms. McTamney’s importance to the Crown’s case is axiomatic. She was purportedly with Mr. Glover when he purchased drugs and when he ingested them on the day he died.

[10] A preliminary inquiry into the charges was held in mid-December 2021. Ms. McTamney testified for half a day on December 13, 2021 and half a day on December 14, 2021.

[11] The preliminary inquiry appears to have been conducted over Zoom, with all participants, including Ms. McTamney, attending remotely. She gave her evidence from the comfort of her living room.

[12] Ms. McTamney’s evidence-in-chief began with the playing of an 18-minute audio-recorded statement she made to the police on March 25, 2021. The statement was introduced into evidence at the preliminary inquiry pursuant to s. 540(7) of the Criminal Code, which permits a justice to receive any evidence that she or he considers credible or trustworthy – even though it might otherwise not be admissible according to Canadian evidence law – including a statement made by a witness that has been reduced to writing or otherwise recorded. Ms. McTamney was not asked to adopt the contents of the statement as true.

[13] Mr. Brazier’s trial was scheduled to commence on September 12, 2022. The Crown anticipated calling Ms. McTamney as its first witness. To that end, she was served by the Crown, on July 4, 2022, with a subpoena to attend at Mr. Brazier’s trial and to provide evidence as part of the Crown’s case.

[14] On August 2, 2022, Crown counsel received a letter from Ms. McTamney’s family physician, Dr. Ashfique Adlul. Dr. Adlul indicated that Ms. McTamney is not sufficiently medically stable to testify in any trial that involves any form of trauma. He said that her participation as a witness at the preliminary inquiry triggered a precipitous decline in her mental well-being and that it had undone months of therapy and treatment she had undertaken. Dr. Adlul highly recommended that she not be put through another event like the preliminary hearing.

[15] Given the concerns expressed by Dr. Adlul, the Crown seeks an order permitting it to file a transcript of Ms. McTamney’s testimony given at the preliminary inquiry as her substantive evidence at trial. The Crown advances both statutory and common law grounds to support the relief it seeks.

[16] Mr. Brazier’s counsel oppose the relief sought by the Crown. They assert that the evidentiary record filed in support of the Crown’s application fails to establish the requisite grounds under either the statutory test or the common law test for admission of Ms. McTamney’s prior testimony in lieu of her attendance at trial.

[17] These reasons explain why the Crown’s application succeeds.

THE GOVERNING PRINCIPLES

[18] The Crown relies on alternate routes to admission of the transcript of Ms. McTamney’s preliminary hearing testimony as substantive evidence at trial.

Admissibility via s. 715(1)

[19] The first route is statutory in nature. In particular, and as I noted above, the Crown relies on s. 715(1) of the Criminal Code which provides as follows:

Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[20] Section 715(1), or more accurately its predecessor, s. 643(1), was considered in detail by the Supreme Court in R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525. The court’s decision includes a number of important rulings in relation to the operation of the section, including:

(a) It is constitutionally compliant, including the imposition of an onus on the accused to establish that he did not have a full opportunity to cross-examine the witness in issue;

(b) It is the full opportunity to cross-examine the witness that is important, not whether a full cross-examination was actually conducted. An accused is not deprived of a full opportunity to cross-examine the witness when his or her counsel elects, for tactical reasons, not to conduct the cross-examination in the same way it might have been conducted at trial; and,

(c) Even where the prerequisites of the section are met, the trial judge retains a discretion to refuse to allow the previous testimony to be admitted in circumstances where it would operate unfairly to the accused. This unfairness may relate to the manner in which the evidence was obtained. Alternatively, it may arise where the evidence sought to be tendered is highly prejudicial to the accused and of only modest probative value.

[21] The “full opportunity” to cross-examine the witness at the preliminary hearing is a key requirement of s. 715(1), as it tends to support both trial fairness and the proper functioning of the adversarial system.

[22] Our adversarial model of adjudication is predicated on the notion that the truth of a matter is most likely to be arrived at by permitting self-interested litigants to zealously present their cases and to challenge their opponents’ cases with equal zeal. Cross-examination - the scrutinizing, testing and challenging of evidence before the trier of fact - is an essential part of the adversarial process and its truth-seeking aspiration. Indeed, Professor Wigmore famously characterized cross-examination as the “greatest legal engine ever invented for discerning the truth”. See for instance, Lilly v. Virginia, 527 U.S. 116 (1999).

[23] The Supreme Court has consistently recognized cross-examination as being of fundamental importance in a criminal trial and has situated it within an accused person’s constitutional right to make full answer and defence. See, for instance, R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at paras. 157-160 and R. v. Lyttle, 2004 SCC 5 at paras 1-2.

[24] Depriving a litigant – particularly one facing a loss of liberty – of a full opportunity to cross-examine a key opposition witness not only significantly handcuffs that litigant’s defence but tends to undermine the truth-seeking function of the trial.

[25] At the same time, s. 715(1) aspires to ensure that important evidence is not lost to the trier of fact because a witness who has testified at a preliminary hearing is no longer willing or able to testify at trial. The loss of important evidence to the trier of fact also tends to undermine the truth-seeking function of the trial.

[26] Section 715(1) offers something of a compromise. Permitting a transcript of the witness’s preliminary hearing evidence to stand in for her trial evidence ensures that important evidence is not lost. Insisting that the accused has had a full opportunity to cross-examine the witness at the preliminary inquiry ensures that the evidence does not go in untested and thereby supports trial fairness and the adversarial model of adjudication.

[27] Much of the litigation under s. 715(1) has focused on whether the accused has had a full opportunity to cross-examine the witness in issue. Certain principles are now well-settled, including:

(a) An accused has not had a full opportunity to cross-examine the witness where the witness refused to answer questions properly put to him or her on cross-examination, became unavailable before or during cross-examination, or where the justice presiding at the preliminary hearing improperly curtailed the cross-examination. See R. v. Lewis, 2009 ONCA 874 at para. 68; and,

(b) The acquisition, after the preliminary inquiry has concluded, of additional information that may be of impeachment value with respect to the witness does not have the effect of converting what was, at the time, a full opportunity to cross-examine the witness, into a basis upon which to deny relief under s. 715(1). See R. v. Saleh, 2013 ONCA at para. 72 and R. v. Michaud (2000), 2000 CanLII 14347 (NB CA), 144 C.C.C. (3d) 62 (N.B.C.A.) at paras. 21-22.

[28] The exercise of the trial judge’s discretion to exclude evidence otherwise admissible under s. 715(1) on trial fairness grounds has also been the subject of a great deal of litigation.

[29] In R. v. Saleh, as above at para. 74, Watt J.A. observed that the exclusionary discretion provided for in s. 715(1) is primarily directed at two forms of mischief: (1) unfairness in the manner in which the preliminary inquiry evidence was obtained; and (2) unfairness in the trial itself caused by the admission of the preliminary inquiry evidence. He cautioned that a trial judge should only exercise the discretion after weighing the fair treatment of the accused and society’s interest in the admission of the evidence to get at the truth of the allegations in issue.

[30] Watt J.A. suggested that, among other things, a trial judge might consider, when exercising the discretion to exclude, the crucial nature of the evidence as well as the crucial nature of the credibility of the witness. See Saleh, para. 77.

[31] The discretion to exclude evidence otherwise meeting the entry criteria of s. 715(1) should not be considered an “open license to undermine the object of s. 715(1) by excluding previous testimony as a matter of course. See Saleh, para. 78. Trial judges must remember that trial fairness is not the sole concern of accused persons. A trial must be fair from both the perspective of the accused and the perspective of the community. See Saleh, para. 81. An accused is not entitled to a perfect trial, but rather one that is fundamentally fair. See R. v. Find, 2001 SCC 32 at para. 28.

[32] In Potvin, Wilson J. instructed that cases in which the discretion is exercised in favour of exclusion will be relatively rare. That approach has been reinforced in numerous appellate decisions since. See Saleh, as above, at para. 78, R. v. Solomon-Jones, 2015 ONCA 654 at para. 43, and R. v. Kuzmich, 2020 ONCA 359 at para. 84.

Admissibility via the principled approach to hearsay evidence

[33] The second route of admission advanced by the Crown is common law in nature and invokes the principled exception to the rule against hearsay evidence.

[34] Hearsay is defined as an out-of-court statement adduced to prove the truth of its contents, where there is an absence of a contemporaneous opportunity to cross-examine the declarant. Hearsay evidence is presumptively inadmissible.

[35] There is no dispute that Crown counsel are tendering hearsay evidence for admission when they offer up Ms. McTamney’s preliminary inquiry transcripts as substantive evidence at trial.

[36] The rule excluding hearsay evidence is well-known, as is its central rationale. It is the general inability to test the reliability of the statement that supports its exclusion. When the maker of the statement is not in court, it may not be possible to test that person’s perception, memory, narration and sincerity. Accordingly, the rule excluding hearsay evidence is intended to enhance the accuracy of fact-finding in the trial process. See R. v. Khelawon, 2006 SCC 57 at para. 2.

[37] Sometimes, however, there may be minimal risks associated with the admission of evidence caught by the rule and its exclusion, rather than its inclusion, may impede, rather than enhance, accurate fact-finding.

[38] Over the years a number of categorical exceptions and a principled exception to the presumptive rule of exclusion have been recognized. In this instance the Crown relies only on the principled approach to the admissibility of hearsay evidence.

[39] The principled approach requires the proponent of hearsay evidence to establish, on a balance of probabilities, that the proffered evidence is both necessary and sufficiently reliable to justify its admissible.

Necessity

[40] The necessity requirement demands reasonable necessity, not absolute necessity. See R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 at para. 29.

[41] Necessity may be established in a number of different ways. A declarant may have died or otherwise be unavailable. Or it may be that evidence of an equivalent value is not available from the declarant or other source, for instance where the declaration recants or can no longer remember the events in issue. Necessity may also be established where the declarant is incompetent to testify or would suffer emotional trauma if summoned to testify. See David Watt, Watt’s Manual of Criminal Evidence, 2022 (Toronto: Ont: Thomson Reuters, 2022) at §28.02.

[42] The necessity requirement “must be given a flexible definition capable of encompassing diverse situations”. See R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 at para. 106. It must, however, be established on evidence in each case. Of particular significance here, evidence that the witness will suffer trauma by attempting to give evidence may be a sufficient reason to pre-empt her testimony by hearsay evidence even if she is physically available to testify. See R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178 at para. 77. See also R. v. Dubois (1997) 1997 CanLII 9935 (QC CA), 118 C.C.C. (3d) 544 (Que. C.A.), leave to appeal refused, (1998), 227 N.R. 152 (S.C.C.) at paras. 32-33.

Reliability

[43] At the admissibility inquiry, it is the threshold reliability of the evidence, not its ultimate reliability that is of issue. Ultimate reliability refers to the weight, or worth, assigned to the evidence by the trier of fact in the final analysis. The concern with threshold reliability, on the other hand, is about whether the evidence is sufficiently reliable to warrant presentation to the trier of act for consideration. See Khelawon, as above, at para. 50 and R. v. Hart, 2014 SCC 52 at para. 98.

[44] A proponent of hearsay evidence may establish threshold reliability by showing, on a balance of probabilities, that (1) there are adequate substitutes for testing the truth and accuracy of the evidence (procedural reliability); (2) there are sufficient circumstantial guarantees that the evidence is inherently trustworthy (substantive reliability); or, (3) there are features of both procedural and substantive reliability that in combination are sufficient to overcome the dangers of hearsay evidence. See Khelawon, as above, at paras. 61-63, R. v. Bradshaw, 201 SCC 35 at para. 27, and R. v. Youvarajah, 2013 SCC 41 at para. 30.

THE PARTIES’ POSITIONS

[45] The positions of the parties are relatively straightforward and antipodal.

The Position of the Crown

[46] Crown counsel indicated that their primary position is that this application should be granted under s. 715(1) of the Criminal Code. They rely on the principled exception only as a fall-back position.

[47] On the issue of necessity, the Crown relies heavily on the evidence of Dr. Adlul. They assert that his evidence was consistent and compelling and that it establishes that Ms. McTamney will be traumatized if compelled to testify at Mr. Brazier’s trial. The risk to her mental health is so substantial that it rises to the level of life and death.

[48] There is no question that Ms. McTamney’s evidence at the preliminary inquiry was taken in the presence of Mr. Brazier and, in the submission of the Crown, that his counsel had a full opportunity to cross-examine her. The only remaining issue is whether the court ought to exercise its residual discretion to exclude the evidence on the basis that its admission would result in trial unfairness.

[49] The Crown contends that trial fairness will not be significantly impacted by the admission of Ms. McTamney’s preliminary hearing evidence in all the circumstances. While some arguably new facts may have come to light since the preliminary inquiry, they do not significantly impact on the credibility or reliability of Ms. McTamney’s prior evidence. Moreover, defence counsel not only had a full opportunity to cross-examine Ms. McTamney at the preliminary inquiry, they took full advantage of that opportunity and conducted a very vigorous and thorough examination.

[50] In terms of the principled approach to the admission of hearsay evidence, the Crown unsurprisingly repeats its submissions on necessity. The Crown relies primarily on procedural guarantees to support the reliability of the proffered evidence. In particular, the evidence was taken in court; it was under oath; it was recorded; and it was subjected to a full and vigorous cross-examination.

The Position of the Defence

[51] Defence counsel agree that necessity is the central issue on this application. And the defence submit that the Crown has failed to establish the necessity requirement on a balance of probabilities.

[52] The Crown’s case is grounded largely in the evidence of Dr. Adlul. He was offered as an expert witness but it was clear that he did not give his testimony in the objective way that is demanded of experts. Instead, say defence counsel, he appeared as an advocate for Ms. McTamney. The court must approach his biased evidence with great caution and afford it little weight.

[53] Dr. Adlul, for instance, failed to take into account the possibility that Ms. McTamney’s mental health issues have been triggered by factors other than her testimony at the preliminary inquiry. He has also failed to take into account that mental health is fluid.

[54] Witnesses with mental health challenges can, and regularly do, testify in criminal proceedings. The defence contends that there is no evidentiary basis to support a conclusion that Ms. McTamney is physically unable to attend the trial. There is insufficient evidence that Ms. McTamney is too mentally fragile to testify at trial, particularly in light of available support mechanisms such as the presence of a support person, the ability to testify remotely, and the possibility of more frequent or lengthier breaks. No one appears to have made any effort to explore possible accommodations with her.

[55] Even if the court is satisfied that necessity has been made out, defence counsel assert that (1) they did not have a full opportunity to cross-examine Ms. McTamney at the preliminary inquiry; and, (2) in any event, the court should exercise its discretion to exclude the evidence on the basis that it would render the trial unfair to Mr. Brazier.

[56] In terms of the issue of cross-examination, the defence asserts that the presiding justice at the preliminary inquiry improperly curtailed the cross-examination of Ms. McTamney. For instance, he did not permit defence counsel to ask Ms. McTamney about her mental health diagnosis, the medications she takes, whether she had been “formed” under the Mental Health Act, why she did not complete a course in nursing, and about her previous experience with a friend dying in her presence.

[57] The defence also points to important evidence that has come to light since the preliminary inquiry that the defence ought to have an opportunity to cross-examine on. For instance, Ms. McTamney had a letter from her physician, Dr. Adlul, in July 2021 in which the doctor indicated that the subpoena she was served with in relation to the preliminary inquiry triggered symptoms of anxiety and PTSD. He recommended that she not give evidence in person. From what I understand, the defence was not provided with a copy of the letter until partway through this application.

[58] In addition, Dr. Adlul testified that Ms. McTamney had come to see him after she was served with the subpoena to appear at the preliminary inquiry. She appeared to him to be delusional. She expressed concern about the Hell’s Angels involvement in this case and was afraid her life would be in danger if she testified. Defence counsel say they may wish to explore the Hell’s Angels angle with her in cross-examination. They may also wish to explore a statement purportedly made by Ms. McTamney to a psychiatrist – Dr. Parker – whom she met with in North Bay in early August 2022. She purportedly said that she had given Naloxone to Mr. Glover and tried to revive him without success. That statement is in contrast to what she said about the events of the occasion in issue during her testimony at the preliminary inquiry.

[59] Defence counsel rely on the “new” evidence that has arisen subsequent to the completion of the preliminary inquiry to support their assertion that the trial would be rendered unfair should Ms. McTamney not be compelled to testify. They say that the inability to explore this new evidence with Ms. McTamney in cross-examination will significantly impact on the fairness of the trial. Ms. McTamney is a crucial Crown witness. The credibility and reliability of her evidence is of central concern.

[60] Defence counsel raise a further concern about the manner in which the evidence was obtained at the preliminary hearing. This submission revisits their concern about not being provided with a copy of Dr. Adlul’s July 31, 2021 letter prior to the preliminary inquiry. In Potvin, the Supreme Court recognized, as one type of potential unfairness, the situation where the Crown knows a witness will be unavailable at trial yet fails to inform the accused of that fact so that he might make the best use of the opportunity to cross-examine at the preliminary hearing. Defence counsel contend that Crown counsel received a copy of Dr. Adlul’s July 31, 2021 letter sometime in September 2021. They knew, as a result of that letter, that Ms. McTamney’s ability to testify at trial may come into question, yet they failed to disclose the letter to the defence or to notify the defence of its contents.

[61] For the reasons expressed, defence counsel urge the court to conclude that the Crown has failed to establish the necessity of filing a copy of Ms. McTamney’s evidence at the preliminary inquiry as substantive evidence at trial. Even if necessity has been made out, the court should exercise its residual discretion to exclude the evidence. In either event, the Crown’s application should be dismissed.

DISCUSSION

[62] I intend to conduct my analysis of the live issues on the application in the following order:

(i) Is Ms. McTamney too ill to testify? In other words, has the Crown established a necessity to admit her preliminary hearing transcripts?

(ii) Did the defence have a full opportunity to cross-examine Ms. McTamney at the preliminary inquiry?

(iii) Should the court exercise its residual discretion to exclude the evidence?

(iv) Is the evidence admissible under the principled exception to the hearsay rule?

Issue One: Necessity – Is Ms. McTamney too ill to testify?

The Evidentiary Record

[63] Three witnesses testified during the hearing of the Crown’s application. The principal witness for the Crown was Dr. Adlul. He testified for a little over a day. In addition, the officer in charge of the investigation, Acting Detective-Sergeant Ashley Hogg, testified at the behest of the Crown. Dr. Vivian Parker – a psychiatrist at North Bay Regional Health Centre – was called by the defence.

[64] A number of exhibits were filed during the course of the application including: Dr. Adlul’s letters of July 31, 2021, August 2, 2022 and September 1, 2022; the lightly redacted clinical notes and records of Dr. Adlul; a bundle of occurrence reports detailing the numerous interactions Ms. McTamney has had with police offices subsequent to the preliminary inquiry; copies of email communications between Ms. McTamney and the Crown and A/Det-Sgt. Hogg; and the transcripts and exhibits from the preliminary inquiry.

[65] The transcripts of Ms. McTamney’s testimony at the preliminary inquiry are fairly lengthy, running to some 234 pages, not including a transcript of the audio statement she gave to the police. It is difficult to assess the demeanour of a witness from the written page, but there appears to be very little in the transcripts to suggest that Ms. McTamney was struggling in any way out of the ordinary while giving her evidence. There were a couple of instances where she became upset enough to prompt questions about whether she needed to take a break. But that it far from remarkable.

[66] I understand that Ms. McTamney was served with a subpoena to testify at trial on July 4, 2022. She appears to have had a consultation with Dr. Adlul on July 6, 2022 but there is no mention in his notes of her having received the subpoena.

[67] She next met with Dr. Adlul on August 2, 2022. His notes on that occasion reflect that she asked him to prepare a letter for the “subpoena not to be answered to”. He noted that he prepared a letter for her because the “previous pre-trial session triggered her emansely (sic)”.

[68] Dr. Adlul’s letter of August 2, 2022 – the one that triggered the Crown’s application – says only the following:

Please note that Ms. McTamney is not medically stable enough to be a witness in any trial that involves any form of trauma.

She was part of the pre-trial and it had left her medically sick and had undone months of therapy and treatment that she went through.

I highly recommend against another event such as this for her to sit through.

[69] On September 1, 2022 Dr. Adlul provided further correspondence to the court which offered the reasoning behind the letter he wrote on August 2, 2022. He expressed, amongst other things, that:

• Ms. McTamney has a complicated history of abuse, substance abuse and mental health difficulties;
• Prior to the preliminary inquiry, she appeared to be managing her illness reasonably well. He noted that she spent three months at Waypoint in early 2020 and followed up thereafter with him as well as with a social worker, psychologist and psychiatrist. She was compliant with her medications and follow-up appointments and was doing her best to get back on her feet. She had an extended period of sobriety following July 2020. In short, he observed that she was reasonably stable and functioning well prior to July 2021;
• He met with Ms. McTamney on July 31, 2021 after she received her subpoena for the preliminary inquiry. It was apparent to him, at that time, that her months of treatment and supports were unravelling. She was exhibiting heightened symptomatology, including low mood, trouble focusing, low energy, panic attacks and insomnia. She had begun to use alcohol again;
• Following the preliminary hearing, she became “undone”. Her binge drinking increased, she was getting into altercations with her partner and mother, and she was having difficulty keeping up with her studies and work. She was non-compliant with her medications and was making frequent visits to the hospital emergency room. She began to exhibit symptoms of new psychiatric diagnoses not previously seen by him, including symptoms of psychosis and manic episodes, leading to a provisional diagnosis of either bipolar disorder or schizoaffective disorder; and,
• Since she testified at the preliminary hearing, Ms. McTamney has been involuntarily committed to hospital on a Form 1 under the Mental Health Act on two occasions. The most recent of those occasions was August 4, 2022.[^1]

[70] Dr. Adlul summarized that Ms. McTamney’s excessive drinking, threats of self-harm, risky behaviour, new provisional diagnoses and lack of functionality – all triggered by having to testify at the preliminary inquiry – support the conclusion that testifying again poses a serious risk to her mental health and, indeed, to her life. He expressed the view that it is fortunate that she has not yet committed suicide or become sufficiently intoxicated to overdose.

[71] Dr. Adlul’s testimony during the voir dire was consistent with the content of his September 1st letter. He testified that he has been treating Ms. McTamney as her family physician since March 2019. Since then he has been able to form an impression of the things that trigger her mental health struggles.

[72] He more or less provided contrasting snapshots of Ms. McTamney before and after the preliminary inquiry. Prior to the hearing, she was relatively stable. She was compliant with her medications. She was actively engaging in mindfulness exercises, yoga and other physical activities. She had been substance free for an extended period.

[73] Subsequent to the preliminary inquiry, he has witnessed more symptoms of bipolar disorder, PTSD, major depressive disorder, threats of suicide, violent outbursts towards others, difficulty coping with life stressors and drinking. She has had numerous run-ins with the police and her driver’s license has been suspended as a result of an impaired driving charge.

[74] Dr. Adlul said his greatest concern is that she stopped taking her medications. He had not previously observed her to be non-compliant. She is, he said, at significant risk in two respects: suicide due to major depressive disorder; or, otherwise engaging in dangerous conduct in a state of sudden mania.

[75] Defence counsel conducted a thorough cross-examination of Dr. Adlul, during which he repeatedly reinforced the evidence he gave in direct examination – specifically that Ms. McTamney’s participation in the preliminary inquiry triggered a precipitous deterioration in her mental health status, from which she has not recovered.

[76] He acknowledged that there is nothing physically preventing Ms. McTamney from attending at the trial and providing evidence. He said that he last met with her on September 12, 2022 and on that occasion she presented as stable. He could detect no issues during the interview. He acknowledged that Ms. McTamney may be triggered by a number of factors apart from testifying in court. Conflict with her mother is a possible trigger; problems in her romantic relationships is another.

[77] He maintained, however, that the major trigger for her mental health problems post-January 2022 was the preliminary hearing. In his view there were no other known triggers at that period of time. She was stable prior to the hearing and has been markedly unstable since then. He described her as “one person before and a whole different person thereafter”. The “thereafter” person, he said, poses a significant risk to her own life.

[78] Ms. McTamney, he said, has been involved in 13 incidents with the OPP since the preliminary inquiry – 10 in this calendar year alone. These incidents speak, he said, to the risky behaviour she engages in as a result of sudden states of mania. The occurrence reports filed by the Crown corroborate Dr. Adlul’s testimony that Ms. McTamney has had frequent run-ins with the police since the preliminary inquiry. Counsel are agreed that the occurrence reports may not be considered for the truth of their contents. But they do support the conclusion that Ms. McTamney has had difficulties functioning during the 2022 calendar year.

[79] Dr. Vivian Parker testified that she conducted a psychiatric assessment of Ms. McTamney on August 5, 2022 while she was an involuntary patient at the North Bay Regional Health Centre. She observed Ms. McTamney to be co-operative, appropriate in her responses to questions, and lacking any delusional content in her thought contents. She found no evidence of hallucinary experience, nor any depressed or manic state. There was, in Dr. Parker’s view, no justification to keep her in the hospital against her will.

[80] Dr. Parker also testified however, that mental health can be very fluid. A person can be exhibiting symptoms that more than justify a Form 1 detention on one day, but appear entirely stable on the next.

Analysis

[81] I am satisfied that the Crown has established, on a balance of probabilities, that Ms. McTamney is too ill to testify.

[82] There are a number of assertions advanced by the defence that I tend to agree with. For instance:

(a) There is no physical impediment to Ms. McTamney’s attendance at trial. She is physically healthy enough to attend;

(b) Individuals with mental health challenges regularly testify before the court in Ontario;

(c) Mental health is fluid. Ms. McTamney’s history of episodic breakdowns does not mean that she will not be sufficiently stable to testify. Nothing in the preliminary inquiry transcript suggests that she was not stable and capable of testifying on December 13-14, 2021;

(d) There are a number of triggers capable of undermining Ms. McTamney’s mental health. One cannot conclude that all of her mental health challenges since the preliminary inquiry have been the result of testifying in that hearing; and,

(e) There are a variety of testimonial aids that may alleviate the stress of testifying. Testifying remotely, taking more frequent or longer breaks, and the presence of a support person are all available means of making the experience of testifying more comfortable.

[83] I expect that Ms. McTamney could be compelled to attend the trial and I expect that one way or another her evidence could be obtained.

[84] What I am primarily concerned about, however, are the repercussions of testifying. I accept Dr. Adlul’s evidence that Ms. McTamney essentially “unravelled” after testifying at the preliminary inquiry. He has been her primary care physician for three and half years. He meets with her regularly. He is well-aware of her numerous mental health challenges. He described her as relatively stable prior to the preliminary inquiry. She was functioning reasonably well. She was compliant with her medications. She was attending mindfulness and yoga classes.

[85] Dr. Adlul’s records reflect that he met with Ms. McTamney three times in January 2022. On January 5, 2022 Ms. McTamney reported that she was having a difficult time coping after the hearing and that it triggered her in a number of ways. On January 8, 2022 she repeated the triggering effect of the hearing and she advised Dr. Adlul that she had consumed alcohol as a result. On January 19, 2022, Dr Adlul noted his observation that she was “under quiet a good amount of stress”.

[86] By March 2022, Ms. McTamney appears to have stabilized somewhat, but it was not to last. She learned that her medical records from Waypoint were being sought by the defence, which again triggered her.

[87] I accept the evidence of Dr. Adlul that Ms. McTamney is presently in a very precarious state of health. And while I appreciate that a number of different circumstances may trigger crises in her mental health, there is no doubt that there has been a demonstrated fall off in her health since she testified at the preliminary inquiry. She has directly indicated that testifying at that hearing triggered her on multiple levels.

[88] Dr. Adlul witnessed her decline, as her primary care physician, and he testified rather passionately on her behalf. Defence counsel argue that he was a little too passionate and strayed from his lane as a professional expert into the lane of advocacy. It is hard not to disagree. He did advocate rather forcefully on her behalf. That said, he did not come across as holding biased views or as having tunnel vision. He struck me as genuinely and deeply concerned about Ms. McTamney’s health and safety.

[89] Taking a high-level view, I consider Dr. Adlul’s expressed concerns to be well-founded and supported by the circumstantial evidence. Ms. McTamney is not simply a nervous witness. She has a documented history of serious mental illness and addiction. Long before she was subpoenaed as a trial witness, she was in crisis. The number of hospital visits and interactions with police in 2022 support the conclusion that she has not functioned well for the most part since the preliminary inquiry. She has been formed under the Mental Health Act twice since May 2022. She has returned to binging on alcohol and is non-compliant with her medications. She is, in my view, in a state of genuine fragility.

[90] It is my judgment that compelling Ms. McTamney to attend the trial – even with reasonable accommodations – would be to roll the dice with her health, her future and indeed, her life. That there may be accommodations available to assist Ms. McTamney’s testimony is irrelevant. It is the aftermath of the testimony and its obvious and serious triggering effect that is the concern. In the circumstances, I am satisfied that the Crown has established that Ms. McTamney is too ill to testify.

Issue Two: Did the defence have a full opportunity to cross-examine Ms. McTamney at the preliminary inquiry?

[91] As I noted above, the cross-examination of Ms. McTamney at the preliminary inquiry proceeded over two half-days. It began after the lunch recess on December 13, 2021 and continued until just after the lunch recess on December 14, 2021. The transcript of the cross-examination runs to 169 pages.

[92] In my view, having reviewed the transcript in detail, Ms. McTamney was appropriately responsive and answered each question properly put to her by defence counsel.

[93] One is hard-pressed in the circumstances to conclude anything but that the defence was afforded a full opportunity to cross-examine her. That said, the defence has raised a number of concerns about the cross-examination and I will address each of those in turn.

[94] By way of recap, the concerns expressed by defence counsel include:

(a) The presiding justice improperly curtailed the cross-examination by prohibiting defence counsel from asking Ms. McTamney about her mental health diagnosis, the medications she takes, whether she had been “formed” under the Mental Health Act, why she did not complete a course in nursing, and about her previous experience with a friend dying in her presence; and,

(b) New and important evidence has come to light since the preliminary inquiry including:

(i) Evidence that Ms. McTamney had a letter from Dr. Adlul dated July 2021 in which the doctor opined that Ms. McTamney ought not to give evidence in person (the letter was not provided to defence counsel prior to the preliminary hearing);

(ii) Evidence that Ms. McTamney has expressed a concern to Dr. Adlul, and perhaps others, that the Hell’s Angels are involved in this case in some way; and,

(iii) Evidence that Ms. McTamney told Dr. Parker that she had given Narcan to Mr. Glover and tried to revive him without success.

The Assertion of Improper Curtailment of the Cross-examination

[95] As I noted, I have reviewed the transcript of Ms. McTamney’s cross-examination in detail. I noted a number of instances where, as a result of an objection or on the presiding justice’s own initiative, defence counsel were prohibited from pursuing certain questions. I noted the following:

(a) Counsel were permitted to ask about how long Ms. McTamney attended medical school, but they were not permitted to ask why she left the program before it was completed. The presiding justice concluded that it was not relevant why she left;

(b) Counsel were permitted to ask Ms. McTamney about her medical diagnosis and about whether she was compliant with any prescribed medications. They were not permitted to ask her what specific medications she was prescribed. The presiding justice deferred the issue of specific medications for further consideration and argument, but it was not returned to;

(c) Counsel were prohibited from asking whether Ms. McTamney had been on an Antabuse regime prior to entering Waypoint or whether it started at Waypoint. The ruling of the presiding justice appears to be based on both relevance and privacy concerns;

(d) Counsel were prohibited from asking if she had ever been formed under the Mental Health Act. The presiding justice based his ruling on relevance grounds, holding that there is no connection between being formed and issues of credibility and reliability; and,

(e) Counsel were not permitted to ask for the name of Ms. McTamney’s friend who overdosed while she was in the same residence as him. I am not entirely clear about when this incident occurred, but it was clearly before Ms. McTamney entered the rehabilitation program at Waypoint. Counsel were permitted to ask about the general circumstances of the overdose and Ms. McTamney’s observations of her friend’s appearance on the date in question. The name of the deceased was determined by the presiding justice to be irrelevant to the live issues at the preliminary inquiry.

[96] In my view, though there were certain restrictions placed on cross-examination, they were neither improper nor consequential.

[97] It is not my function to sit on appeal of the evidentiary rulings made by the presiding justice at the preliminary inquiry. Having said that, on my review of the transcript and having considered the reasons provided for his rulings, I have no basis upon which to conclude that he was in error in respect of the rulings made.

[98] Moreover, the issues counsel were prevented from exploring were, in my judgment, peripheral at best. The rulings did not meaningfully impair defence counsel’s opportunity to conduct a comprehensive cross-examination – which counsel did.

[99] In R. v. Lewis, as above, Moldaver J.A., as he then was, took a very narrow view of the type of circumstances that might support a conclusion that a full opportunity to cross-examine the witness was undermined by improper curtailment by the presiding justice. He said, specifically, at para. 75:

…I reject an interpretation that would effectively stultify [s. 715] in cases where erroneous evidentiary rulings of a non-jurisdictional nature have prevented cross-examination on isolated matters. This is to be contrasted with evidentiary rulings that, for example, place a blanket proscription on counsel's right to cross-examine on matters of credibility at a preliminary inquiry.

[100] In this instance, I am not satisfied that the evidentiary rulings made by the presiding justice were erroneous. At any rate, they were non-jurisdictional rulings and do not fall into the type of rulings identified as problematic in Lewis.

The Assertion of New Evidence

[101] Appellate courts have been clear: the acquisition of new information that may be of impeachment value does not convert what was otherwise a full opportunity to cross-examine the witness into a basis upon which to deny a s. 715(1) application. See R. v. Saleh and R. v. Michaud, as above.

[102] In Lewis, at para. 68, Moldaver J.A. held that a failure to cross-examine on information obtained subsequent to the preliminary inquiry does not undermine the accused’s full opportunity to conduct cross-examination, regardless of the reason why the information in issue was not earlier available. Circumstances where an accused has been deprived of an opportunity to cross-examine on evidence not earlier available is best left to a consideration of the issue of trial fairness.

[103] In the result, I will consider the presence of “new” evidence and any inability of Mr. Brazier to cross-examine on that evidence in the next section.

[104] In the meantime, I am satisfied, in all the circumstances, that Mr. Brazier not only had a full opportunity to cross-examine Ms. McTamney, but that he exercised it. Said another way, I am not satisfied that Mr. Brazier has met his onus to establish that he did not have a full opportunity to cross-examine Ms. McTamney.

[105] In the result, I am satisfied that the threshold requirements of s. 715(1) have been made out. It remains to be determined whether the court should exercise its residual discretion to exclude Ms. McTamney’s preliminary hearing evidence on trial fairness grounds.

Issue Three: Should the court exercise its residual discretion to exclude the evidence?

[106] In Potvin, the Supreme Court made it clear that the residual discretion to exclude evidence otherwise admissible under s. 715(1) should be exercised in relatively rare circumstances. It should not be used to undermine the object of s. 715(1) as a matter of course. Subsequent appellate authority has continued to endorse this approach. See R. v. Kuzmich, as above, at para. 84.

[107] The object of s. 715(1), to be clear, is to ensure that evidence, including important and highly probative evidence, is not lost to the trier of fact due to the unavailability of a witness at trial. See Potvin at p. 553 and Kuzmich at para. 80.

[108] The exercise of the residual discretion requires a careful weighing of the fair treatment of the accused and society’s interest in the admission of probative evidence to get at the truth of the allegations in issue. See R. v. Saleh, as above, at para. 74. The focus, ultimately, must be on the protection of the fairness of the trial process, keeping in mind that what the accused is entitled to is not a perfect trial, but one that is fundamentally fair.

[109] In Potvin, Wilson J. identified two “main types of mischief” at which the residual discretion may be directed. The first is the manner in which the evidence is obtained. The second is where admission of the prior testimony impacts on the fairness of the trial.

[110] In this instance, Mr. Brazier asserts that the manner in which the evidence was obtained was unfair to him. In particular, he says the failure of the Crown to produce, prior to the preliminary inquiry, a copy of Dr. Adlul’s July 31, 2021 letter, was prejudicial to him. More specifically, he says the Crown ought to have known, on the basis of the July 31, 2021 letter, that there was a reasonable possibility that Ms. McTamney may not be able to testify at trial. The Crown ought to have made the defence aware of that possibility because it may have impacted on how the cross-examination of Ms. McTamney was conducted.

[111] In my view, the July 31, 2021 letter is a relatively insignificant issue. Defence counsel did not elaborate on how their cross-examination might have been conducted differently had they known about the letter. Candidly, I do not believe it would have made any material difference. The cross-examination conducted was comprehensive. The letter did not provide any information about Ms. McTamney’s mental health status not already known to defence counsel. Indeed, they had a great deal of information about her mental health status at their fingertips because Ms. McTamney has been quite open about her struggles, discussing them publicly in a number of podcast forums.

[112] That Ms. McTamney preferred to testify remotely was hardly compelling information. My guess is that an overwhelming majority of witnesses would prefer to testify remotely if given the opportunity.

[113] Defence counsel expressed concern that the Crown improperly withheld the July 31, 2021 letter from them. In R. v. Lewis, Moldaver J.A. observed, at para. 57, that the Crown’s failure to disclose relevant information prior to the preliminary hearing may be a factor for the trial judge to consider when assessing whether the proposed evidence should be excluded under s. 715(1) on grounds of trial fairness. But he was careful to distinguish between flagrant and deliberate breaches involving highly relevant information from inadvertent failures to disclose evidence of marginal relevance.

[114] The instant case is not one where the Crown deliberately failed to disclose highly relevant evidence. The Crown had a four-line letter from a doctor recommending that Ms. McTamney not testify in person. But the fact is, Ms. McTamney was never anticipated to appear in person, since the preliminary inquiry was being conducted remotely. The relevance of Dr. Adlul’s letter was, in the circumstances, dubious. It certainly did not contain any fruits of the investigation, nor did it form part of the case to be met by the defence. The Crown might be forgiven for failing to attach any relevance to the letter at the time it was received.

[115] Beyond the assertion that the Crown failed to disclose the July 31, 2021 letter, the only serious concern about trial fairness arises from the fact that certain new information has arisen since the preliminary inquiry that the defence has yet to have an opportunity to cross-examine on. I have earlier identified that new information. For ease of reference, it includes:

(a) The content of Dr. Adlul’s July 31, 2021 letter;

(b) Utterances made by Ms. McTamney regarding the possible involvement of the Hell’s Angels in the circumstances of this case; and,

(c) Ms. McTamney’s indication to Dr. Parker that she attempted, without success, to revive Mr. Glover with Naloxone.

[116] I will comment on each item in turn.

[117] As I alluded to earlier, there is little, if any, significance to Dr. Adlul’s letter of July 31, 2021. He suggested that Ms. McTamney should be accommodated through a remote attendance. She was, but not because of his letter. The whole proceeding was conducted remotely. I am not clear on how the letter is otherwise relevant to any of the live issues in the proceeding.

[118] Similarly, there is little significance, in my view, to any evidence that Ms. McTamney may have suggested the Hell’s Angels are involved in this case in some way. Dr. Adlul was clear that he considered her utterance to that effect to be delusional. On August 4, 2022 she told OPP officers that apprehended her for mental health concerns that she was herself a member of the Hell’s Angels. Further, that she had a broken arm (untrue) and that she was charged with manslaughter (also untrue). Ms. McTamney has been, and continues to be, in a serious mental health crisis.

[119] Finally, evidence that Ms. McTamney told Dr. Parker that she tried to revive Mr. Glover with Naloxone is of some significance because it is inconsistent with the evidence she gave at the preliminary hearing. That said, it is not particularly compelling evidence for a couple of reasons. First, there is no evidence that I am aware of, that anyone administered Naloxone to Mr. Glover. Second, I understand that an unused Narcan[^2] kit was located in Mr. Glover’s bedroom, or in close proximity to it.

[120] In any event, defence counsel are in possession of evidence of Ms. McTamney’s inconsistent statement. They are not prevented from using it to undermine the credibility and reliability of Ms. McTamney’s evidence.

[121] It would be preferable, of course, if Ms. McTamney was able to be present at the trial to provide her evidence in a manner capable of contemporaneous cross-examination. Ms. McTamney is a crucial Crown witness and her credibility and reliability are crucial issues. But her personal attendance is not reasonably possible in the circumstances. The question is whether the trial will be rendered unfair if the evidence is not excluded. In my view, it would not.

[122] Mr. Brazier’s ability to make full answer and defence is not impacted other than in a minor or trivial way as a result of his inability to cross-examine Ms. McTamney on the “new” evidence.

[123] On the other hand, the loss of the evidence contained in her preliminary inquiry transcript would seriously impact the truth-seeking function of the trial and the court’s ability to make accurate findings of fact. It contains evidence crucial to the Crown’s case.

[124] The crucial nature of the evidence is a factor that cuts both ways. It is imperative that Mr. Brazier have a fair opportunity to fully challenge crucial evidence. I find that he has had that opportunity. At the same time, it is vitally important to the truth-seeking function of the process, that this crucial evidence be available to the trier of fact for consideration.

[125] In my view, this is not one of the relatively rare cases where the court’s residual discretion should be exercised to exclude evidence otherwise admissible under s. 715(1).

[126] In the result, I am satisfied that the Crown’s application under s. 715(1) succeeds.

Issue Four: Is the evidence admissible under the principled exception to the hearsay rule?

[127] It is unnecessary to address this last question, in light of my conclusion that the evidence in issue is admissible under s. 715(1) of the Criminal Code.

[128] That said, I am satisfied that it is also admissible under the principled approach to the hearsay rule. I will provide very brief reasons for that view.

[129] Recall that the principled approach requires the party tendering the evidence – in this case the Crown – to establish its necessity and its threshold reliability.

[130] I find that necessity is made out for the same reasons it was made out under s. 715(1).

[131] Reliability, as I noted, may be established by way of procedural guarantees of reliability or by substantive guarantees of reliability, or by a combination of both.

[132] In this instance, there are sufficient procedural guarantees of trustworthiness to establish threshold reliability. In other words, to warrant the evidence being placed before the trier of fact for consideration.

[133] The procedural safeguards are relatively obvious. The evidence, though technically hearsay, was taken in a courtroom. It was given under oath before a presiding justice. It was recorded. And it was subjected to a lengthy and rigorous cross-examination.

CONCLUSION

[134] The Crown’s application is granted. The transcripts of Ms. McTamney’s preliminary inquiry evidence are admissible as substantive evidence in this proceeding.

[135] I add one caveat. The parties did not make submissions about the significance, if any, of the fact that Ms. McTamney’s audio-recorded police statement was introduced as part of her evidence-in-chief at the preliminary inquiry. While she said that the recording accurately reflected what she told the police, she was not asked to adopt the content of the recording as her evidence for the purposes of the preliminary inquiry.

[136] The recorded police statement does not form part of the transcripts but was filed as an exhibit at the preliminary hearing. Counsel did not make submissions about whether that recording forms part of the evidence subject to s. 715(1). Candidly I did not pick up on this issue until I sat down to prepare this ruling.

[137] In the result, this ruling is subject to counsel’s further submissions on the admissibility of the recording filed during the preliminary hearing under s. 540(7) of the Criminal Code.

C. Boswell J.

Released: October 24, 2022

[^1]: The circumstances of Ms. McTamney’s hospitalization on August 4, 2022 are worth noting. In the context of the Crown’s application under s. 715(1), a corollary application was brought to obtain copies of Dr. Adlul’s clinical notes and records. Counsel was appointed for Ms. McTamney. She had a telephone consultation with that counsel on August 4, 2022. She expressed suicidal ideation during the call. The content of the conversation was sufficiently alarming to counsel that he contacted the authorities to report that she was suicidal. She was apprehended by the police and transported to the West Nipissing Hospital and later transferred to the North Bay Regional Health Centre for psychiatric assessment.

[^2]: Narcan is Naloxone in a nasal spray form.