COURT FILE NO.: CR-18-50000563-0000

DATE: 20221209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ERIK BERGMANN

G. Kim, for the Crown

K. McArthur, for Mr. Bergmann

HEARD: 20 September 2022

S.A.Q. AKHTAR J.

RULING ON S. 715 APPLICATION

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

1In March 2014, Microsoft Corporation contacted the National Centre for Missing and Exploited Children in the United States to report the upload and accessing of several images of child pornography by one of their users on a Sky Drive account. Microsoft provided the details of the person involved including their email address, name, and an IP address which was located in Toronto. This information was passed on to the Toronto Police Service.

2A production order relating to the IP address was obtained and served on Bell Canada who confirmed the IP address belonged to the accused, Erick Bergmann.

3On 28 July 2015, police executed a search warrant at the accused’s address of 71 Lakeland Drive. Its terms authorised the search and seizure of any electronic device capable of storing data. As a result, officers found 165,592 images and 1,905 videos containing child pornography on four separate devices. The material included graphic images and videos of adults having sex with young children.

4Consequently, Mr. Bergmann was charged with possession of child pornography contrary to s. 163.1(4)(a) of the Criminal Code.

5The Crown called Mr. Bergmann’s mother, Elvira Bergmann, as a witness at Mr. Bergmann’s preliminary inquiry on the issue of who lived at 71 Lakeland Drive. Ms. Bergmann testified that only she and the accused were residents at the address and that Mr. Bergmann had lived there since 1967. She also explained that her daughter, Kim, had not lived at the house for almost 20 years.

6When questioned about the computer found in her home, she confirmed that it belonged to the accused. Ms. Bergmann explained that she had never used it because she “did not know how to go on the computer”. Ms. Bergmann also testified that she had never seen anyone else use the computer.

7Ms. Bergmann died earlier this year.

8The Crown brings an application to have Ms. Bergmann’s preliminary inquiry testimony read in as evidence pursuant to section 715 of the Criminal Code, or alternatively, admitted under the principled exception to the hearsay rule. The defence opposes the application.

The Proceedings at the Preliminary Inquiry

9Ms. Bergman’s testimony at the preliminary inquiry was not without controversy. Even though Ms. Bergmann and her daughter had been subpoenaed by the Crown, Ms. McArthur, counsel for the accused, advised both not to attend the hearing.

10When this was brought to the attention of the court, Ms. McArthur provided two reasons for directing the witnesses to be absent.

11First, she said that she had already told the Crown the accused would concede that neither Ms. Bergmann or her daughter had anything to do with the findings to be made at the preliminary inquiry and therefore their evidence “wasn’t necessary”. Ms. McArthur took the view that as an elderly woman, Ms. Bergmann should not be forced to attend court for health reasons.

12Secondly, Ms. McArthur alluded to the fact that the subpoena issued may not have been valid because it failed to identify Ms. Bergmann’s correct age.

13The Crown, Mr. Kim, pointed out that the subpoena did have Ms. Bergmann’s correct date of birth and that he had been advised earlier by Ms. McArthur that she had told Ms. Bergmann not to attend court. Significantly, Ms. McArthur brought no formal motion to quash the subpoenas that had been issued.

14Having reviewed the subpoenas issued, the presiding preliminary inquiry justice found that they were lawful and valid on their face, and ordered the attendance of Ms. Bergmann and her daughter.

ANALYSIS

The Evidence Is Admissible Under s. 715 of the Criminal Code

15Ms. McArthur does not take issue with the s. 715 requirements having been met, but opposes the admission of Ms. Bergmann’s evidence on the basis that the subpoena compelling her to attend the Ontario Court of Justice was issued by the wrong court. She argues that the subpoena is invalid because it was issued by the Superior Court of Justice and not the Ontario Court of Justice, something not permitted by the Criminal Code.

16Section 699 of the Criminal Code deals with the issuance of subpoenas and reads as follows:

699 (1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.

(2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

(a) by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or

(b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.

17Section 2 of the Code defines “justice” as “a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction”.

18Ms. McArthur argues that the Code accordingly does not provide for a judge of the Superior Court of Justice to issue a subpoena for a witness who is to testify at the Ontario Court of Justice. That being the case, Ms. Bergmann’s testimony was obtained without a legal basis and cannot be used at Mr. Bergmann’s trial.

19For the following reasons I disagree.

20First, the Criminal Code must be read in conjunction with s. 5 of the Justices of the Peace Act R.S.O. 1990, c. J.4, which reads as follows:

Every judge of the Supreme Court of Canada, the Federal Court of Canada, the Court of Appeal, the Superior Court of Justice and every provincial judge is by virtue of his or her office a justice of the peace and also has power to do alone whatever two or more justices of the peace are authorized to do together.

21It is clear from this statute that a Superior Court judge has the powers of a justice of the peace and can therefore exercise the issuance of subpoenas for potential witnesses at the Ontario Court of Justice.

22Secondly, if Ms. McArthur took issue with the impropriety of Ms. Bergmann’s attendance at the preliminary inquiry because of an invalid subpoena, the proper course of action would have been to bring a motion to quash.

23From my review of the transcripts, no such motion was ever moved. Instead, Ms. McArthur initially told Ms. Bergmann not to attend, and then when asked by the presiding judge to explain her actions, complained of Ms. Bergmann’s attendance for health reasons.

24If her complaint of a defect in the subpoena (the date of birth) can be treated as a motion to quash, it was rejected by the judge who found the subpoena to be valid. In my view, the judge acted appropriately and Ms. Bergmann’s testimony was properly received.

25Thirdly, the obvious fact is that Ms. Bergmann testified at the preliminary inquiry. It is immaterial how she appeared as a witness or under what authority. Witnesses do not have to be subpoenaed to testify. Once Ms. Bergmann stepped into the witness stand and was affirmed, her testimony was available for use by a court of law subject to the governing statutory and evidentiary rules.

26Section 715 of the Code states that:

715 (1) 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.

27It is clear that these conditions have been satisfied: Ms. Bergmann is now deceased, and the accused was present at the preliminary inquiry when she testified. There can be no question that Mr. Bergmann had a full opportunity to question his mother through counsel.

28Although there is a discretion to exclude such testimony even when the s. 715 conditions are satisfied, that discretion “is directed at two principal types of mischief: unfairness in the manner in which the preliminary inquiry evidence was obtained, and unfairness in the trial itself caused by the admission of the preliminary inquiry evidence”: R. v. Saleh, 2013 ONCA 742, at para. 74.

29I see no unfairness here. It is clear that Ms. Bergmann had relevant and material evidence to give with respect to who lived at the residence and who had access to the devices containing the illicit material. This would assist the Crown in narrowing access to the computer on which the material was found to the accused. There is no suggestion that the evidence is unreliable, nor can it be considered prejudicial in any other manner.

30For these reasons, I find Ms. Bergmann’s testimony to be available for use by the Crown under s. 715 of the Criminal Code.

The Evidence Is Admissible Under the Principled Exception to the Hearsay Rule

31I would also find that Ms. Bergmann’s preliminary inquiry testimony admissible under the principled exception to the hearsay rule.

32In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, the Supreme Court of Canada reviewed the jurisprudence on the admission of hearsay in criminal cases and identified two potential routes of admissibility.

33The first route identified by the Court was the use of “traditional” exceptions of hearsay such as res gestae, dying declarations, and “state of mind” as continuing exceptions to the admission of out of court statements tendered for their truth. The second way in which hearsay could be admitted was through the application of the principled exception to the hearsay rule, which required the out of court utterance to be both necessary and reliable.

34The Court described the interaction between the two types of hearsay with the traditional exceptions being subject to the principled approach in “rare” cases with the onus on the party challenging admission to justify exclusion: Starr, at para. 214; R. v. Kler, 2017 ONCA 64, at para. 75; R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241 at para. 110; R. v. MacKinnon, 2022 ONCA 811, at para. 32.

35In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the Court further clarified the approach to hearsay utterances prescribing a “functional approach” to determine whether out of court statements tendered for their truth should be accepted into evidence. Re-affirming the presumptive admissibility of the traditional exceptions, the Court provided guidance on the factors to be used in applying principled approach. Necessity and reliability remained the twin pillars of the test.

36The Court in Khelawon, at paras. 62-3, indicated that one way of determining threshold reliability was to examine the circumstances in which it was made. If those circumstances supported the statement’s trustworthiness there could be little objection to admission. Another way was to show that a hearsay statement’s truth could be sufficiently tested in court, for example through cross-examination. The Court re-iterated that the ultimate reliability of the statement was a matter left to the trier of fact.

37The Court also overruled Starr in one significant aspect: corroborative evidence could be used to assist in deciding whether the proposed hearsay utterance was sufficiently reliable to warrant admission.

38In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, the Supreme Court of Canada placed stringent limits on the use of corroborative evidence. The Court described two strands of reliability which would justify admissibility: (1) procedural reliability (where adequate substitutes for testing the evidence exist such as a video recording, the presence of an oath, and a warning about lying); and (2) substantive reliability (where the statement is inherently trustworthy).

39In this case it is clear that the preliminary inquiry testimony would satisfy the procedural reliability threshold. The preliminary inquiry evidence was taken under solemn affirmation, in a court proceeding where the accused had a full opportunity to test the evidence through cross-examination. There is a clear basis to rationally evaluate the proposed evidence: MacKinnon, at para. 62. As I have already noted, the evidence was material and reliable and carried with it no prejudice.

40Accordingly, Ms. Bergmann’s testimony is also admissible under the principled exception to the hearsay rule.

41In light of this finding, it is unnecessary to deal with Crown’s alternative submission that the preliminary inquiry testimony is admissible under the substantial reliability criterion using Mr. Bergmann’s utterances to the police as a basis for corroboration. I would add that there is no legal basis to the accused’s argument that the voluntariness of the statement would have to be determined before it could be used in this way: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at paras. 17-25.

S.A.Q. Akhtar J.