COURT FILE NO.: CR-19-1630

DATE: 20221223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Julia De Vuono, for the Crown

• and -

K.P.

Alison Craig, for the Accused

HEARD: October 10-12, 2022

REASONS FOR RULING ON ADMISSIBILITY OF KGB STATEMENT

BALTMAN J.

Introduction

1K.P. faces numerous human trafficking and sexual violence charges, said to have occurred between May 2016 and February 2017. There are two alleged victims: S.D. and K.W.

2S.D. has disappeared. Before police lost track of her, she gave a KGB statement implicating K.P. that the Crown wants admitted for its truth, pursuant to the principles in R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 ("K.G.B.") and R. v. Khelawon, 2006 SCC 57 ("Khelawon").

3After hearing evidence and submissions on the application, I ruled S.D.'s statement inadmissible, with reasons to follow. These are my reasons.

Factual Overview

4On February 3, 2017, K.W. ran into the street in bare feet, with visible injuries on her body. The driver of a passing motor vehicle picked her up and called 911. K.W. gave a KGB statement to police advising that both K.P. and S.D. had forcibly confined her in the townhome from which she had escaped, and that K.P. forced her to perform sell sexual services over several months and kept much of the proceeds.

5S.D. was arrested on May 11, 2017 and charged with forcible confinement. She subsequently gave three audio and video recorded statements: May 11, 2017; May 16, 2017; and January 18, 2018. In the latter statement (the KGB statement of January 18, 2018) S.D. was specifically cautioned about the importance of telling the truth and the criminal consequences of making a false statement. Importantly, before giving her KGB statement, S.D. spoke with a lawyer, and, immediately after giving her statement, the charge of forcible confinement against her was dropped.

6In her KGB statement, S.D. asserted:

a) She met K.P. in May 2016, in Dartmouth, Nova Scotia, shortly after she turned 19.

b) She was working independently in strip clubs at the time.

c) After about a month, K.P. introduced her to K.W. Between June 2016 and February 3, 2017, she and K.W. worked in the sex trade under the direction and control of K.P.

d) She earned between $800-$1000 per day, all of which she turned over to K.P.; if she needed money, she would ask him for it.

e) K.P. assaulted her on occasion by pinching, grabbing, slapping and punching her.

f) K.P. began to suspect that K.W. was stealing money from him and would beat her; in January and February of 2017 the beatings intensified and went on for several days; at his insistence she tied up K.W.'s legs with tape.

g) Approximately one month after, K.W. she returned to K.P.

h) To her knowledge K.P. had no income other than the sex trade earnings he received from her and K.W.

7Since giving that statement S.D. has disappeared. It is undisputed that police have made extensive efforts to locate her, without success.

Legal Framework

8Normally witnesses give their evidence in court before the trier of fact, where they are available to be cross-examined on behalf of the accused. However, an exception can be made based on the two criteria of necessity and threshold reliability. As S.D. has disappeared, the defence has conceded necessity. The dispute is whether her statement is sufficiently reliable to be admitted.

9In the recent Supreme Court discussion of the rule, R. v. Bradshaw, 2017 SCC 35 ("Bradshaw"), Karakatsanis J., writing for the majority, largely followed the approach to hearsay established in prior caselaw: see K.G.B.; Khelawon. Justice Karakatsanis confirmed that threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. The hearsay dangers relate to the difficulties of assessing the declarant's perception, memory, narration or sincerity. These dangers can be overcome by demonstrating procedural reliability and substantive reliability: see Bradshaw, at paras. 26-27.

10Procedural reliability is established by showing that there are adequate substitutes for testing the truth and accuracy of the evidence, given that the evidence is not being given in court, under oath, and subject to contemporaneous cross-examination. Such substitutes include a video recording of the statement, and the presence of an oath or solemn affirmation after a caution about the consequences of lying. Importantly, the court emphasized that some form of cross-examination, such as preliminary inquiry testimony or cross-examination of the recanting witness at trial, is usually required. Jury warnings about the dangers of hearsay evidence or unsavory witness testimony do not establish procedural reliability: see Bradshaw, at paras. 28-29.

11Substantive reliability is established when the statement is inherently trustworthy, and thus unlikely to change under cross-examination. In that regard, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement: see Bradshaw, at para. 30.

12These two approaches to establishing threshold reliability are not mutually exclusive and can work in tandem to overcome hearsay dangers. However, the standard for threshold reliability remains high, and the statement must be sufficiently reliable to overcome the hearsay dangers it presents: see Bradshaw, at para. 32; R. v. Taylor, 2015 ONCA 448 ("Taylor"), at para. 72.

13Moreover, and of particular relevance to this case, Khelawon also asserts that the court must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in authority, or other forms of investigatory misconduct: see Khelawon, at para. 87. See also R. v. Threefingers, 2016 ABCA 225, at para. 56; R. v. Post, 2005 BCSC 1492, at para. 37; R. v. MacLean, 2006 ONCJ 120, at paras. 66-68.

14Finally, as always, even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude such evidence if its prejudicial effect outweighs its probative value: see Khelawon, at para. 49; Bradshaw, at para. 24; Taylor, at para. 75.

15To that extent, Bradshaw did not alter the established principled approach to hearsay in Canadian law. Where Bradshaw went further, and what the majority focused on primarily, is the limited role of corroborative evidence in establishing threshold reliability at the voir dire. The majority determined that not all evidence that validates the declarant's credibility, or the accused's guilt, helps to establish threshold reliability. Corroborative evidence may only be relied upon 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": see Bradshaw, at para. 44 [emphasis added].

Analysis

16As noted above, the courts have identified three procedural safeguards when evaluating hearsay statements: (1) the availability of the declarant for cross-examination; (2) the presence of an oath or affirmation after a caution about the consequences of being being untruthful; and (3) videotaping the statement in its entirety. Of those three, the availability of the declarant for cross-examination is widely considered to be the most important: R. v. Rowe, 2021 ONCA 684, at para. 53; R. v. Couture, 2007 SCC 28, at para. 95.

17In this case, the inability to cross-examine S.D. is a huge obstacle. Not only is she not testifying at this trial, she has not, at any point, been made available for cross-examination. There was no preliminary hearing. Thus her credibility, reliability, memory, and motive to fabricate cannot be tested.

18That latter factor – motive to fabricate – is particularly relevant here. When S.D. gave her statement she was under arrest for forcible confinement. Before agreeing to give her statement, S.D. was hesitant, and asked to speak with a lawyer. Arrangements were made for her to do that. She returned the next day and gave a statement. Immediately after the statement was delivered, the charge of forcible confinement was dropped.

19While the officer in charge testified that no offers were made by the police in exchange for the statement, there is no evidence as to what, if any, understanding may have existed between her lawyer and the Crown. At the very least, S.D. might reasonably have hoped – or expected – the favourable result that transpired.

20Substantive reliability is also a concern here. The Crown argues there is corroborating evidence to support the statement, in particular the anticipated testimony of K.W., the advertisements for sexual services, items seized during the search, and the photographs of K.W.'s injuries. However, K.W. has not yet been cross-examined and the defence has already identified potential gaps in her testimony. The remaining evidence relied on by the Crown as corroborative – advertisements, items seized, and photographs – may be corroborative of the assault charges and even confirm that both women were working as escorts, but it does not corroborate the charges that lie at the heart of this prosecution, namely human trafficking.

21For those reasons, I determined S.D.'s statement was not admissibile.

Baltman J.

Released: December 23, 2022

COURT FILE NO.: CR-19-1630

DATE: 20221223