Court File and Parties
COURT FILE NO.: CR-19-70000258 DATE: 20230317
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MARCO GUTIERREZ
Counsel: Tom Schreiter, for the Crown Ingrid Grant, for Marco Gutierrez
HEARD: January 11, 2023
Ruling on Crown’s s. 715 Application
P.J. Monahan J.
[1] Marco Gutierrez was charged with committing sexual offenses against two complainants (respectively, “Complainant One” and “Complainant Two”), in relation to incidents that took place in the 1990s, when the complainants were under the age of 14. One of the Crown’s witnesses was IL, the complainant’s grandmother. Although she testified at the preliminary inquiry in this proceeding, she passed away in February 2022. The Crown therefore sought a ruling that her preliminary inquiry evidence was admissible at trial, pursuant to s. 715(1)(a) of the Criminal Code.
[2] At the conclusion of the voir dire, I ruled that the preliminary inquiry testimony of IL was admissible, with written reasons to follow. These are my reasons.
Background Facts
[3] As noted above, IL testified at the preliminary inquiry in this matter in March 2019. Mr. Gutierrez was personally present for IL’s testimony and was represented by counsel, who cross-examined IL.
[4] IL testified as follows:
a. In the 1990s, IL and her husband (the complainants’ grandfather) resided in an apartment (the “Gutierrez Apartment”) in Toronto with Mr. Gutierrez and his family. The family included Complainant One (IL’s grandson), his mother (IL’s daughter), Mr. Gutierrez (Complainant One’s stepfather) and Mr. Gutierrez’s two sons (Complainant One’s stepbrothers).
b. Complainant Two is Complainant One’s cousin and is also IL’s grandson. Complainants One and Two are the same age and were close growing up. Complainant Two would sometimes sleep over at the Gutierrez Apartment.
c. One night, IL woke up to get her husband a glass of water. On that particular night, Complainant Two was sleeping over at the Gutierrez Apartment, on the couch in the living room. IL observed Mr. Gutierrez standing in the living room, looking at Complainant Two while he slept. Mr. Gutierrez was standing close to Complainant Two and was dressed in his pajamas. IL told Mr. Gutierrez to go back to his room and he did, right away.
d. Complainant Two was about 13 years old at the time. He either did not sleep over again or did so less frequently after this incident.
[5] Complainant Two also testified at the preliminary inquiry. His evidence was that sometime in the summer of 1998, when he was approximately 13 years old, he was sleeping over at the Gutierrez Apartment. Complainant Two said that Mr. Gutierrez rubbed his erect penis against Complainant Two’s buttocks, then groped and touched his penis. The incident stopped when Complainant Two’s grandfather awoke and went to the kitchen to get a drink for IL.
[6] Sadly, IL died on February 20, 2022 at the age of 90. She had been in palliative care since March 2021 after her initial admission to the hospital in January 2021.
The Parties’ Positions
[7] The Crown seeks to admit IL’s preliminary inquiry evidence on the basis of s. 715(1)(a) of the Criminal Code, which provides as follows:
Where, at the trial of an accused, a person whose evidence was given … on the preliminary inquiry into the charge, … if facts are proved on oath from which it can be inferred reasonably that the person (a) is dead, … 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.
[8] Both the Crown and defence agree that the statutory conditions set out in s. 715(1)(a) have been met in this case, since IL, who is now deceased, testified in the presence of Mr. Gutierrez, who had full opportunity to cross-examine her.
[9] However, counsel for Mr. Gutierrez argues that I should exercise my residual discretion to exclude the evidence since its prejudicial effect outweighs its probative value. Defence counsel argues as follows:
a. IL’s evidence is so vague, ambiguous, and inconsequential that it is lacking in meaning and irrelevant. Counsel notes that IL did not say she saw Mr. Gutierrez touching Complainant Two. Nor is there any basis upon which the trier of fact could find that IL was describing the same occasion as the single occasion Complainant Two claims Mr. Gutierrez touched him. Moreover, Complainant Two described the assault differently, since he claimed that it was interrupted by his grandfather rather than by IL.
b. An adult looking at a child is not evidence that the adult is a child molester. It is an action with entirely ambiguous meaning, or no meaning at all. It is simply not probative of anything relevant to this trial.
c. The prejudicial effect of allowing the evidence is high. The implication of the evidence is that Mr. Gutierrez must have been looking at Complainant Two with a prurient interest, demonstrating a propensity to commit the offenses charged. It is an attempt at trial by innuendo and suspicion, not evidence. Even if the evidence had marginal probative value, it would not outweigh this prejudicial effect.
d. IL suffered from dementia before she passed away. Mr. Gutierrez provided an “expert opinion” from Dr. Ken Berger, a medical doctor who, based on a review of IL’s medical records and a transcript of her preliminary inquiry evidence, states that “it is clear that IL was suffering from dementia at the time of her preliminary inquiry testimony on March 14, 2019.” On this basis, Mr. Gutierrez argues that IL’s preliminary inquiry evidence was manifestly unreliable and should not be introduced at trial.
[10] The Crown agrees that I have a residual discretion to exclude evidence that satisfies the statutory conditions in s. 715(1)(a) where the prejudicial effect of the evidence outweighs its probative value. However, the Crown also submits that this residual discretion should be exercised sparingly. The Crown argues that, in this case, the evidence has probative value and there is no reasoning or moral prejudice arising from its admission. Accordingly, this is not a case where I should exercise my residual discretion to exclude the evidence, and it should be admitted under s. 715(1)(a).
Analysis
a. The evidence has probative value
[11] Evidence has probative value where it tends to increase or decrease the probability of a fact at issue. The threshold for relevance is low. There is no necessity that the evidence “firmly establish … the truth or falsity of a fact in issue”, and judges can admit evidence that has modest probative value.[^1] Moreover, in assessing probative value, judges should take care not to usurp the role of the finder of fact; concepts like ultimate reliability, believability, and probative weight have no place when deciding threshold relevance.[^2] In determining whether the disputed evidence logically tends to make a fact in issue more or less likely, the trial judge may consider that evidence in light of the context of the other evidence at trial.
[12] The Crown’s theory is that IL came upon Mr. Gutierrez while he was assaulting Complainant Two and that, therefore, IL’s evidence tends to corroborate the evidence of Complainant Two. Although Complainant Two maintained that it was his grandfather rather than IL who interrupted Mr. Gutierrez during the assault, this discrepancy between the evidence of Complainant Two and IL may be attributable to the fact that the event occurred over 20 years ago. This inconsistency is therefore a matter of weight and ultimate reliability and does not render IL’s evidence inadmissible.
[13] In my view, IL’s evidence easily meets the modest standard of threshold relevance. I find that it would be open to a properly instructed jury to conclude that Complainant Two is simply honestly mistaken as to who interrupted the assault, given that the incident in question took place over 20 years ago at a time when Complainant Two was under 14 years old. On this basis, the jury could conclude that IL was in fact describing the very incident alleged by Complainant Two. Such evidence would tend to make it more likely that Complainant Two’s allegations are true.
[14] I therefore conclude that IL’s preliminary inquiry evidence has probative value. The inconsistency between IL’s evidence and that of Complainant Two is a matter for the jury to consider in determining how much weight to attach to IL’s evidence.
b. There is no reasoning or moral prejudice that would result from the admission of IL’s evidence
[15] Evidence is not prejudicial simply because it tends to establish that the accused committed the offence with which he is charged. Rather prejudicial effect relates to the likelihood that a jury will misuse the evidence in some way, or there would be a significant unfairness associated with admitting it, such that it would render the accused’s trial unfair.
[16] There are two general types of prejudice that can result from the admission of evidence, ‘moral prejudice’ and ‘reasoning prejudice’. Moral prejudice refers to the risk that the evidence will be used to infer guilt using a forbidden chain of reasoning based on the accused’s general disposition or propensity to act in a certain way, while reasoning prejudice can arise from the trier of fact not properly focusing on the charge itself in their reasoning.[^3]
[17] Neither type of prejudice would arise from the admission of IL’s evidence. There is no moral prejudice because the Crown is not tendering this evidence in order to show that Mr. Gutierrez has a general propensity or tendency to commit an offence of the type alleged. Rather, the Crown’s argument is that the IL’s evidence corroborates the evidence of Complainant Two that the incident he describes actually occurred. As such, it is being tendered by the Crown to rebut the defence argument that the incident never occurred.
[18] Nor is there any reasoning prejudice since the evidence relates to the very acts alleged by the Crown. As such, there is no basis to believe that the introduction of the evidence would distract the jury from the findings it is required to make.
c. IL’s evidence should not be excluded on the basis of the letter provided by Dr. Berger
[19] Mr. Gutierrez provided an unsworn letter dated October 17, 2021 from Dr. Berger, stating that he believed that IL was suffering from dementia at the time of her preliminary inquiry testimony. In Dr. Berger’s view, there are “legitimate medical concerns that likely undermined her ability to give reliable and trustworthy evidence to the court.”
[20] There are numerous difficulties with Dr. Berger’s letter. Most obvious are that although Dr. Berger prepared his letter prior to IL’s death and he did not actually examine or observe IL. Rather, his report is based largely on his review of the transcript of IL’s evidence at the preliminary inquiry. Dr. Berger also had a brief telephone call on October 5, 2021 with IL’s daughter, and reviewed various medical reports prepared by other physicians who treated IL between September 2019 and June 2021. None of these medical reports were attached to his letter.
[21] Dr. Berger critiques IL’s preliminary inquiry testimony, pointing out that she was vague or uncertain about certain aspects of her evidence. For example, Dr. Berger notes that IL first testified that, when she came into the living room on the night in question, she saw a shape, which she later testified was a person. IL was also initially unsure if that person was sitting or standing.
[22] Dr. Berger further observes that there are certain statements found in the medical reports that indicate that IL suffered from delirium and hallucinations. On this basis, he argues that there is a real possibility that IL’s description of having come upon Mr. Gutierrez standing in the living room near Complainant Two was “a product of her own imagination, or her memory and cognitive abilities impacted her testimony.”
[23] In considering what weight to give to the opinions expressed in Dr. Berger’s unsworn letter, I note that IL was describing events that took place over 20 years prior. It is thus hardly surprising that she might well have had some difficulty in recalling particular details of the events in question.
[24] I also note that IL was cross-examined with respect to a number of other matters regarding the family history, apart from the incident involving Complainant Two. IL described in some detail the layout of the apartment where the family was living in the late 1990s. She also described the different locations where the family had lived over the years, although in some cases she had difficulty recalling where the family had been living at a particular point in time.
[25] There is no suggestion that IL was mistaken with respect to any of these matters, much less that her evidence on these matters was a product of her imagination. Again, the fact that IL was uncertain on some matters (such as where the family might have lived at a particular point in time) is hardly surprising given the length of time that elapsed since the relevant events took place.
[26] I therefore see no basis in the record before me upon which it can be concluded that IL was hallucinating or delirious at the time of her preliminary inquiry testimony in March 2019. I find Dr. Berger’s opinion in this regard to be based on little more than speculation and conjecture. When IL’s evidence is considered fairly, and as a whole, it simply does not support the claim that IL was suffering from delusions or hallucinating when she gave her evidence.
[27] To be sure, the Dr. Berger’s criticisms of IL’s testimony can certainly be raised by defense counsel in her submissions to the jury. But the determination of the ultimate reliability and weight to be attached to IL’s preliminary inquiry evidence falls to the jury, not to me in my limited gatekeeper role.
[28] I therefore decline to exercise my residual discretion to exclude IL’s preliminary inquiry evidence on the basis of the opinions expressed in Dr. Berger’s unsworn letter.
Disposition
[29] IL’s preliminary inquiry evidence satisfies the statutory criteria for admissibility as set out in s. 715(1)(a) of the Criminal Code. I also find that her evidence has probative value, and its admission would not result in moral or reasoning prejudice to Mr. Gutierrez. The Crown’s application to admit IL’s preliminary inquiry evidence of pursuant to s. 715(1)(a) is therefore granted.
P. J. Monahan J.
Released: March 17, 2023
COURT FILE NO.: CR-19-70000258 DATE: 20230317
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MARCO GUTIERREZ
RULING ON CROWN’S S. 715 APPLICATION
P. J. Monahan J.
Released: March 17, 2023
[^1]: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38. [^2]: See R. v. Schneider, 2022 SCC 34, at para. 39. [^3]: See David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at pp. 80-82.