COURT FILE NO.: CR-22-00000025-0000 DATE: 2023-04-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING James Cavanagh, Michael Purcell and Tara Schuck, for the Crown Applicant

• and -

ARCHIE MCKAY Ryan Amy, for the Respondent Respondent

HEARD: March 13, 14 and 15, 2023 at Kenora, Ontario.

Mr. Justice J.S. Fregeau

REASONS ON APPLICATION

INTRODUCTION

[1] Archie McKay (the “accused”) stands charged with five counts of first-degree murder arising from an early morning fire at 854 Macheetao Road in the First Nation community of Kitchenuhmaykoosib Inninuwug (“KI”) on May 2, 2019. Tragically, Geraldine Chapman, the accused’s common law spouse, and four young children died in the fire.

[2] During the investigation into the fire, the police spoke with Sarah Jane Bluecoat (“Ms. Bluecoat”) on three occasions, namely May 2, 2019, July 14, 2021, and August 3, 2021.

[3] Ms. Bluecoat was the sister-in-law to Linda McKay, the accused’s mother, and the aunt of the accused. Ms. Bluecoat was born on February 20, 1944, and was 75 years old on May 2, 2019, and 77 years old in the summer of 2021. Ms. Bluecoat died on September 28, 2022.

[4] A preliminary inquiry was scheduled to begin on January 24, 2022. However, a direct indictment was filed on January 10, 2022 and the preliminary inquiry was cancelled. The accused’s trial is scheduled for November 2023.

[5] The Crown now applies for an order granting the admission of Ms. Bluecoat’s statements to police into evidence at the accused’s trial pursuant to the principled exception to the rule prohibiting hearsay evidence.

BACKGROUND

[6] The May 2, 2019 fire at the home of Ms. Chapman was captured on a surveillance camera posted on a nearby store. The fire is first visible on the video at approximately 4:48 a.m. Numerous neighbors were alerted to the fire very shortly thereafter. The first emergency call was placed at 5:02 a.m. and police arrived at the scene at approximately 5:05 a.m.

[7] Neither the neighbors nor the police who attended the scene of the fire observed the accused at the scene until after 7:00 a.m. Given his absence, there was concern that he, along with Ms. Chapman and the four children, had died in the fire.

[8] The accused was first observed at the scene of the fire shortly after 7:00 a.m. As he rushed toward the rubble of the burned home, the accused was intercepted by police and arrested for public intoxication. The accused had a burn on the right side of his forehead and the back of his left hand was badly burned. When asked by police where he was coming from, the accused replied, “my aunt’s, Sarah Jane’s”.

[9] Detective Constable Brad Slade (“D/C Slade”) attended the home of Ms. Bluecoat in KI during the early evening of May 2, 2019, for the purpose of obtaining a statement from her. Ms. Bluecoat spoke only Oji-Cree. D/C Slade was therefore accompanied by Delphine Lachinette, an O.P.P. Detachment Administrator in KI who was fluent in English and Oji-Cree, to act as a translator.

[10] Upon arrival at Ms. Bluecoat’s home, D/C Slade, assisted by Ms. Lachinette, introduced himself, explained why he was there and asked Ms. Bluecoat if she would provide a statement. She agreed to do so and invited D/C Slade and Ms. Lachinette into her home. Ms. Bluecoat’s spouse, Eli Bluecoat, was also present that evening.

[11] The Bluecoat home is a small, single-family bungalow with a kitchen, living room, two bedrooms and a washroom. According to D/C Slade, he, Ms. Lachinette and Ms. Bluecoat sat at the kitchen table. D/C Slade’s recollection was that Mr. Bluecoat remained in the living room, approximately 15 feet from where the interview took place. Ms. Bluecoat was aware of the tragic circumstances of the fire that morning. D/C Slade described Ms. Bluecoat’s demeanor that evening as normal, calm and pleasant.

[12] The police detachment in KI had a video interview room and D/C Slade had access to an audio recording device on May 2, 2019. However, D/C Slade had been instructed to record Ms. Bluecoat’s statement on his laptop in “typed question and answer format”. He therefore brought his laptop with him for the purpose of transcribing Ms. Bluecoat’s statement that evening. D/C Slade testified that this was a practice commonly used by him at the time to record a witness statement.

[13] The interview began at 6:34 p.m. Ms. Bluecoat was not cautioned or provided any warnings prior to the start of the interview. She was not advised that the police were conducting a homicide investigation in relation to the fire that morning. All of D/C Slade’s communications with Ms. Bluecoat were through Ms. Lachinette. When taking the statement, D/C Slade typed out each of his questions, and Ms. Lachinette translated each question into Oji-Cree for Ms. Bluecoat. Ms. Bluecoat responded in Oji-Cree, and Ms. Lachinette translated the response into English. D/C Slade typed the response into his laptop. The interview concluded at 7:05 p.m. Mr. Bluecoat did not participate.

[14] The May 2, 2019 Interview Report of Sarah Jane Bluecoat is reproduced below:

Q: My name is Brad Slade with the Ontario Provincial Police and with me is Delphine LACHINETTE who is assisting to translate. The police are investigating a fire at a house that happened earlier today. Before we begin can you tell me a little about yourself?

A: I'm an elder in Big Trout and lived here my whole life. I live here with my husband Eli BLUECOAT.

Q: What can you tell me about what you know about the fire?

A: I didn't know about the fire until Archie's mom told me this morning.

Q: What were you told about the fire?

A: Linda MCKAY asked me if I heard about the house fire and I said no. Linda said that Solomon called her to tell her that Geraldine's house was on fire. That's all.

Q: When were you told this?

A: I just woke up and didn't look at the time.

Q: Can you tell me about Archie MCKAY coming to your house?

A: He just come here to use the washroom. He said he just came from William CROMARTY's. He came here after his mother called me about the fire. I strartled him with the news of the house fire. While he was here we called Linda again. When Linda called the first time, Linda was worried that she didn't know where Archie was and she was concerned that he was in the house. We called her back to say that he was ok. He just walked in like he was normal. My granddaughter Karen PAISHK told me that Archie went to the fire.

Q: What time did he come?

A: About 5 minutes after Linda called.

Q: What was Archie wearing?

A: Black jacket and maybe black pants. Not wearing a hat.

Q: Was Archie injured?

A: No.

Q: How long was Archie at your house?

A: 10 minutes. Then he took off to the fire.

Q: Did you or Archie call anyone else about the fire other than Linda?

A: No. He was hysterical when I told him about the fire.

Q: Did he come back?

A: No. My granddaughter Karen, told me that he was picked up at the scene.

Q: What did Archie say about his night?

A: He didn't say. He didn't come here. I assume he was at William's.

Q: Do you know who lives at the house where the fire happened?

A: She knows that Geraldine was living there and looking after the kids. I'm not sure how many kids she's looking after, but Geraldine's oldest daughter is out of town in Sioux Lookout.

Q: How are you related to Archie MCKAY?

A: His mom is her sister in Law. Archie is my nephew.

Q: Have you heard anything more about the fire since?

A: All I know is what Linda told me this morning.

Q: Is there anything else you think I should know?

A: No.

Q: Was there any other times that Archie came to the house?

A: Only the one time.

Q: Have you had the chance to review this statement?

A: Yes.

Q: Are you willing to sign this statement to say that everything you've told me is true to the best of your knowledge?

A:

[15] D/C Slade, who does not speak Oji-Cree, testified that he had no concerns as to Ms. Bluecoat’s comprehension. He described Ms. Bluecoat’s answers as timely and responsive to the questions asked. As can be seen from the report reproduced above, the final question put to Ms. Bluecoat was:

Are you willing to sign this statement to say that everything you’ve told me is true to the best of your knowledge?

[16] Ms. Bluecoat then signed the statement on D/C Slade’s laptop and he counter signed it. D/C Slade testified that he had no concerns about the truthfulness of Ms. Bluecoat’s answers to his questions. He recalled that Ms. Bluecoat reviewed her statement prior to signing it but could not recall exactly how she did so.

[17] D/C Slade acknowledged that he relied entirely on Ms. Lachinette’s translation of Ms. Bluecoat’s answers and that he did not record Ms. Bluecoat’s responses, as translated to him by Ms. Lachinette, verbatim, testifying that he was as accurate and complete as possible, but omitted responses such as “ums and ahs”.

[18] Ms. Lachinette grew up in KI and has worked for the O.P.P. for 17 years. She is fluent in English and Oji-Cree and has interpreted for the O.P.P. before and after May 2, 2019. She is not an accredited interpreter. Ms. Lachinette has known Mr. and Ms. Bluecoat for approximately 40 years.

[19] Ms. Lachinette accompanied D/C Slade to the Bluecoat home during the evening of May 2, 2019 and explained to Ms. Bluecoat that D/C Slade was in KI assisting with the police investigation into the fire. She told Ms. Bluecoat that D/C Slade would like to obtain a statement from her and Ms. Bluecoat agreed to provide a statement.

[20] Ms. Lachinette recalled that she and D/C Slade sat in the living room and that Ms. Bluecoat sat at the kitchen table. Ms. Lachinette remembered Mr. Bluecoat being present, either in the living room or in one of the bedrooms. Ms. Lachinette explained that the interview was conducted by D/C Slade asking individual questions, her translating the questions into Oji-Cree for Ms. Bluecoat, Ms. Bluecoat responding to her in Oji-Cree and her translating Ms. Bluecoat’s answers into English for D/C Slade.

[21] Ms. Lachinette described Ms. Bluecoat as “calm” and “helpful”. Ms. Lachinette testified that she had no difficulty translating D/C Slade’s questions or Ms. Bluecoat’s answers, that Ms. Bluecoat was clear in expressing herself and had no difficulty understanding or responding to any of the questions put to her. Ms. Lachinette did not recall having to repeat, explain or clarify any questions put to Ms. Bluecoat.

[22] Ms. Lachinette recalled reviewing the statement with Ms. Bluecoat by “reading everything back” to her. She did not have a specific recollection of Ms. Bluecoat signing the statement.

[23] Mr. Bluecoat provided a statement to the police on May 9, 2019. He told the police, among other things, that the accused had come to their home on the morning of the fire, that he did not know about the fire when he arrived, that he and Ms. Bluecoat told him about the fire and “that’s when he [the accused] started crying”.

[24] Detective Constable Deschamps (“D/C Deschamps”) became File Coordinator for this investigation in August 2020. In July 2021, she was also assigned investigative duties, including having earlier statements taken from key witnesses adopted under oath, if the statements of these witnesses had not been taken under oath in the first instance. Ms. Bluecoat was one of six such witnesses that D/C Deschamps was assigned to contact for this purpose.

[25] D/C Deschamps testified that she was informed that Ms. Bluecoat was in hospital in Sioux Lookout in July 2021 but that she was not advised of, nor did she have any knowledge of, Ms. Bluecoat having any serious, pressing health concerns in July 2021.

[26] D/C Deschamps arrived at the Sioux Lookout hospital at 3:10 p.m. on July 14, 2021 and was taken to Ms. Bluecoat’s room. She was accompanied by two interpreters, Tom Chapman, Geraldine Chapman’s uncle, and Mr. Beaver. D/C Deschamps had audio/video recording equipment with her. D/C Deschamps described Ms. Bluecoat as “elderly and somewhat frail” and not “engaged” but she did not observe her to be in any medical distress.

[27] D/C Deschamps, assisted by the interpreters, explained to Ms. Bluecoat that the purpose of her attendance with her that day was to have her May 2, 2019, statement adopted and sworn under oath so that it could be used in court if she was unable to attend. Ms. Bluecoat declined to be interviewed that day.

[28] D/C Deschamps briefed her superior officers about what had occurred on July 14, 2021 and was instructed to follow up later with an accredited interpreter. D/C Deschamps did so and re-attended Sioux Lookout hospital on August 3, 2021, with Linda Makela and a commissioner of oaths.

[29] D/C Deschamps and Ms. Makela arrived at the hospital at 2:03 p.m. August 3, 2021. Upon their arrival, Ms. Bluecoat was in a common area. The group was provided with a boardroom for privacy. D/C Deschamps once again had audio/video recording equipment with her. D/C Deschamps testified that Ms. Bluecoat was asked if she remembered meeting her in July and Ms. Bluecoat nodded.

[30] Ms. Bluecoat, with the assistance of Ms. Makela, was sworn on a bible. Before she was referred to her May 2, 2019, statement, Ms. Bluecoat asked if she was in trouble or if she would be charged with anything. She was told that it was a criminal offence to lie under oath and that she would be charged only if she lied under oath.

[31] Ms. Bluecoat was not advised that her statement was part of a police investigation relating to five counts of first-degree murder. Ms. Bluecoat was not formally cautioned and advised that she did not have to participate that day. However, she was told that “it was all voluntary”.

[32] The questions and answers from her May 2, 2019, statement were read to Ms. Bluecoat by Ms. Makela. She was instructed to tell the officer if she wanted to add or change anything from that statement. She did not do so, responding at the conclusion of the statement through Ms. Makela, “that’s just the way it was”.

[33] D/C Deschamps testified that Ms. Bluecoat was confused with the chronology involved at questions #11 and #12 of her May 2, 2019 statement, but that once explained to her she understood. D/C Deschamps further testified that she took a break partway through this interview because Ms. Bluecoat dozed off. Ms. Bluecoat was provided water and juice and was, according to D/C Deschamps, fully awake and cognizant when they continued, such that she had no concerns about Ms. Bluecoat’s comprehension going forward.

[34] Ms. Makela has been an accredited courtroom interpreter for approximately 25 years. She is fluent in Oji-Cree and English. She has only been to KI once in her life, at 16 years of age, and did not know Ms. Bluecoat prior to August 3, 2021.

[35] Ms. Makela testified that she and Ms. Bluecoat communicated well on August 3, 2021, partly due to the fact that Ms. Bluecoat, an elder, spoke the “proper native language”. She further testified that she had no difficulty understanding Ms. Bluecoat, but that Ms. Bluecoat had some difficulty understanding her, such that she had to “rephrase some individual words” and “present words in another way”. But for these instances, Ms. Makela testified that she has “no difficulty in communicating with [Ms. Bluecoat]”.

THE POSITIONS OF THE PARTIES

The Crown

[36] The Crown submits that a trial judge, when considering an application to admit evidence under the principled exception to the hearsay rule, functions as a gatekeeper making a preliminary assessment of the threshold reliability of the hearsay statement. The Crown emphasizes that ultimate reliability is left to the trier of fact.

[37] The Crown submits that it is crucial for the court to bear in mind that the trial judge’s gatekeeper function is limited to determining whether the statement is sufficiently reliable to allow the trier of fact a satisfactory basis for evaluating the truth of the statement.

[38] The Crown suggests that courts have, since the introduction of the principled exception to the hearsay rule, analyzed the issue of threshold reliability on a spectrum. Given the death of Ms. Bluecoat and the indicia of reliability in the circumstances of this case, the Crown submits that we are far enough along the threshold reliability spectrum to allow the hearsay statement of Ms. Bluecoat into evidence to be evaluated and weighed by the jury.

Necessity

[39] The Crown submits that necessity is a flexible concept, the analysis of which must consider the circumstances of each case. Evidence will be necessary within the meaning of the test where the direct evidence – the viva voce evidence of the hearsay declarant – is not available. Necessity is established if the declarant has died, according to the Crown.

[40] The Crown, with the benefit of hindsight, acknowledges that the evidence of Ms. Bluecoat could have been preserved differently, either by video and/or audio recording of her evidence on May 2, 2019, or pursuant to s. 709 of the Criminal Code, at any time after the indictment was preferred and prior to her death on September 28, 2022.

[41] However, the Crown submits that KI is a small, isolated community that experienced a tragic event on May 2, 2019. The limited police resources available in the community necessitated numerous police officers being flown in to investigate the circumstances surrounding the fire that occurred that day.

[42] The Crown notes that a single video interview room was available at the KI detachment and a large number of witnesses had to be interviewed. While D/C Slade had ready access to audio recording equipment which could have been used when interviewing Ms. Bluecoat on May 2, 2019, he testified that he was familiar and comfortable with the typewritten format he used, which allowed for the immediate review of the statement with Ms. Bluecoat, as described by Ms. Lachinette.

[43] The Crown submits that reasonable efforts were taken to enhance the reliability of Ms. Bluecoat’s evidence, and the evidence of other witnesses, in the summer of 2021. If witnesses’ initial statements had not been taken under oath, police met with these witnesses and reviewed their statements with them on video and requested they adopt their statements under oath, as was done by D/C Deschamps with Ms. Bluecoat on August 3, 2021.

[44] The Crown acknowledges that Ms. Bluecoat was 77 years old and in hospital in the summer of 2021. However, the Crown submits that there is no evidence that she was suffering from any urgent medical condition such that it could have been anticipated that she would be deceased by the time of trial.

[45] The Crown submits that its decision to proceed by direct indictment enjoys a presumption of good faith. While doing so precluded the defence cross-examination of Ms. Bluecoat at the preliminary hearing scheduled for January 24, 2022, nine months before the death of Ms. Bluecoat, there is no evidence that Ms. Bluecoat was in medical distress at the time the indictment was preferred, according to the Crown. The Crown notes that the procedure set out in s. 709 of the Code is available to both the Crown and defence and submits that the accused could have applied to have Ms. Bluecoat’s evidence, direct and cross-examination, taken by a commissioner at any time prior to her death.

[46] The Crown submits that the police took positive, reasonable steps to preserve Ms. Bluecoat’s evidence prior to her death. Unfortunately, Ms. Bluecoat is now deceased. The Crown submits that the criterion of necessity is founded on society’s interest in getting at the truth. These broader societal concerns impart reasonableness and flexibility into the consideration of necessity, according to the Crown.

[47] The Crown submits that it has established the requirement of necessity, given the death of Ms. Bluecoat.

Reliability

[48] The Crown, citing R. v. Khelawon, 2006 SCC 57, R. v. Bradshaw 2017 SCC 35 and R. v. McMorris 2020 ONCA 844, submits that threshold reliability may be established if there are (1) adequate substitutes to permit the ultimate trier of fact to sufficiently test the truth and accuracy of the hearsay evidence (procedural reliability); or (2) sufficient circumstantial and evidentiary guarantees that the hearsay evidence is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability.

[49] The Crown submits that the authorities confirm that procedural and substantive reliability are not mutually exclusive and that they may complement each other to establish threshold reliability in appropriate cases. The Crown suggests, however, that in this case threshold reliability has been established by way of procedural reliability and by way of substantive reliability such that the third avenue for admissibility, while available, is not required.

[50] The Crown submits that in the final analysis, the inquiry into reliability must be functional and case-specific such that the focus is on the particular dangers raised by the hearsay evidence tendered for admission and on those circumstances relied upon by the Crown to overcome those particular dangers.

[51] The Crown suggests that procedural reliability is established when the substitutes for testing the evidence, given the absence of cross-examination, provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay evidence.

[52] The Crown submits that substantive reliability is established if the hearsay evidence is shown to be inherently trustworthy, considering the circumstances in which it was made and any evidence that corroborates or conflicts with the hearsay evidence. The Crown submits that corroborative evidence may be relied on to establish substantive reliability if it goes to the truthfulness or accuracy of the material aspects of the hearsay statement. The function of corroborative evidence at the threshold substantive reliability stage is to mitigate the need for cross-examination on the point that the hearsay evidence is tendered to prove, according to the Crown.

Procedural Reliability

[53] The Crown submits that the procedures used in recording Ms. Bluecoat’s evidence on May 2, 2019 and August 3, 2021 provide the requisite foundation to enable the trier of fact to properly evaluate the truth and accuracy of Ms. Bluecoat’s evidence, such that procedural reliability has been established on a balance of probabilities.

[54] The Crown points to the following in relation to the May 2, 2019 statement:

1. D/C Slade and Ms. Lachinette will testify at trial as to the entire circumstances surrounding the taking of Ms. Bluecoat’s statement;
2. Ms. Bluecoat was amenable to providing a statement and was calm and composed throughout the interview;
3. D/C Slade typed out, and Ms. Lachinette translated, individual questions put to Ms. Bluecoat;
4. Ms. Bluecoat responded, Ms. Lachinette translated, and D/C Slade typed individual responses into his laptop;
5. Ms. Lachinette had no difficulty translating Ms. Bluecoat’s responses and does not recall any confusion or misunderstanding on the part of Ms. Bluecoat at any point during the interview;
6. The answers, as recorded, are responsive to the questions and clear and concise;
7. The interview itself was straightforward and lacked complexity;
8. Ms. Lachinette reviewed all questions and answers with Ms. Bluecoat, following which Ms. Bluecoat signed her statement.

[55] On July 14, 2021, D/C Deschamps attended the Sioux Lookout hospital in an attempt to have Ms. Bluecoat adopt her May 2, 2019 statement under oath and recorded on video. Ms. Bluecoat declined.

[56] The Crown submits that this indicates that Ms. Bluecoat understood her freedom of choice in relation to the police. The Crown undertakes to play the video recording of this interaction at trial to allow the trier of fact to compare it with the video recording of the August 3, 2021 interview of Ms. Bluecoat.

[57] The Crown submits that the audio/video recording of the August 3, 2021 interview of Ms. Bluecoat buttresses the procedural reliability of her May 2, 2019 statement. The Crown suggests that the procedure employed by D/C Deschamps on this date will allow the trier of fact to observe and fully evaluate the reliability of Ms. Bluecoat and her hearsay evidence as contained in the earlier statement.

[58] The Crown submits that the trier of fact will observe that Ms. Makela, an accredited and obviously conscientious interpreter, carefully conducted a line-by-line review of the May 2, 2019 statement with Ms. Bluecoat under oath. The Crown notes that Ms. Makela testified that she and Ms. Bluecoat had no difficulty communicating with and understanding each other.

[59] The Crown suggests that Ms. Makela addressed any areas of uncertainty or confusion with D/C Deschamps and Ms. Bluecoat, all of which can be evaluated by the trier of fact, when viewing the video and observing the cross-examination of D/C Deschamps and Ms. Makela at trial.

[60] The Crown observes that Ms. Makela concluded her August 3, 2021 review of the May 2, 2019 statement with Ms. Bluecoat by asking her if she wanted to add or retract anything, to which Ms. Bluecoat responded, “no that’s just the way it is”.

[61] The Crown submits that the procedure followed in obtaining the May 2, 2019 statement of Ms. Bluecoat, considered in conjunction with the August 3, 2021 review of it under oath and on video, will enable the ultimate trier of fact to rationally evaluate the truth and accuracy of the contents of the May 2, 2019 statement. Procedural reliability has been established on a balance of probabilities, according to the Crown.

Substantive reliability

[62] The Crown submits that the substantive reliability of Ms. Bluecoat’s May 2, 2019 hearsay statement has also been established by the particular circumstances in which it was made, aided by corroborative evidence relating to the material aspects of the statement that the Crown intends to tender for their truth.

[63] The Crown observes the following in relation to Ms. Bluecoat’s May 2, 2019 statement:

1. The statement was taken approximately 12 hours after the events discussed, on an unforgettable day in a small community;
2. Ms. Bluecoat was interviewed in the comfort of her own home, with translation provided by a resident of the same community who had known Ms. Bluecoat for over 40 years;
3. Ms. Bluecoat could not have appreciated the significance of the questions she was being asked or of her responses as to the movements of the accused earlier that day and there appears to be no motive for Ms. Bluecoat not to have been truthful;
4. Ms. Bluecoat’s interactions with the accused that day would have been memorable to her, given the concern that he may have died in the fire, as conveyed to Ms. Bluecoat by the accused’s mother, Linda McKay, prior to the accused arriving at her home;
5. The questions put to Ms. Bluecoat were open ended and not leading;
6. There is no evidence to suggest Ms. Bluecoat experienced any difficulty recalling or describing the events discussed;
7. Ms. Bluecoat was calm and attentive, her answers to the questions put to her were responsive and the events discussed were not complex.

[64] The Crown submits that the video of Ms. Bluecoat’s August 3, 2021 sworn adoption of her May 2, 2019 statement shows that this was more than a simple “pro forma” agreement with the earlier statement. The Crown suggests that Ms. Bluecoat requested, and was provided, with clarification of certain questions and content.

[65] The Crown further submits that there is also corroborative evidence supporting a finding that Ms. Bluecoat’s May 2, 2019 hearsay statement carries sufficient substantive reliability to justify a finding of threshold reliability.

[66] The Crown submits that Eli Bluecoat corroborates his spouse’s statement that the accused came to their home early in the morning on May 2, 2019, that the accused did not know about the fire when he arrived, that he and Ms. Bluecoat told him about the fire and that the accused was upset when told about the fire.

[67] The Crown contends that the evidence of Evelyn Quequish also corroborates aspects of Ms. Bluecoat’s hearsay statement. Ms. Quequish has provided a statement to the police stating, among other things, that she was present in the home of Linda McKay, the accused’s mother, on the morning of the fire. While Ms. Quequish was at Ms. McKay’s home that morning, Ms. McKay received a telephone call from Ms. Bluecoat. Ms. Quequish then heard Ms. McKay telling the accused about the fire and heard Ms. McKay state, after hanging up, that the accused was “very upset”. The Crown submits that this corroborates Ms. Bluecoat’s evidence that the accused was at Ms. Bluecoat’s home that morning and was upset when told about the fire.

[68] The Crown acknowledges that the standard for substantive reliability is high. However, the Crown submits that the circumstances surrounding the taking of the May 2, 2019 and August 3, 2021 statements of Ms. Bluecoat, together with the corroborative evidence noted, establishes the inherent trustworthiness of Ms. Bluecoat’s statement such that it should be admitted into evidence under the principled exception to the hearsay rule.

Probative value and prejudicial effect

[69] The Crown submits that the court should not exercise its residual discretion to exclude the hearsay evidence. The probative value of the evidence of Ms. Bluecoat far exceeds any prejudicial effect, according to the Crown.

[70] The Crown submits that the accused’s attendance at Ms. Bluecoat’s home at approximately 7:00 a.m. on May 2, 2019, is the first time his whereabouts became known after the fire was discovered over two hours earlier. The Crown suggests that this is a critical point in the evidentiary chronology. The Crown further contends that Ms. Bluecoat’s hearsay evidence as to the accused’s reaction when he is told about the fire is also critical evidence. The Crown submits that the probative value of Ms. Bluecoat’s evidence is very high.

[71] The Crown reminds the court that prejudice in this context means evidence which operates unfairly for the accused in the trial, not unfortunately. The Crown submits that there is nothing inherently prejudicial about Ms. Bluecoat’s hearsay evidence.

[72] The Crown contends that this evidence is an important part of a larger body of evidence which incriminates the accused, but it is not, in and of itself, prejudicial. Ms. Bluecoat describes a brief interaction between the accused and herself that is otherwise inconsequential, according to the Crown. The Crown submits that Ms. Bluecoat does not attribute any bad acts or unsavoury conduct to the accused and there is therefore no risk of a jury engaging in propensity reasoning potentially creating unfairness for the accused.

[73] The Crown further submits that there is no realistic danger of Ms. Bluecoat’s hearsay evidence resulting in reasoning prejudice. It will not consume an inordinate amount of time during the trial, it will not distract the jury nor does its admission risk causing an unfocused trial, according to the Crown. The Crown reiterates that the evidence is brief and inconsequential in and of itself. However, it is highly probative when placed within the larger factual matrix, according to the Crown.

[74] The Crown submits that the probative value of Ms. Bluecoat’s evidence far outweighs any negligible prejudicial effect potentially created by its admission at trial such that the court should not exercise its residual discretion to exclude the evidence.

THE ACCUSED

[75] The accused submits that the analysis on an application to admit hearsay evidence under the principled exception to the hearsay rule must begin with the presumption that hearsay evidence is inadmissible and that the admission of hearsay evidence is the exception, not the rule.

[76] The accused acknowledges that the principled exception to the hearsay rule provides three possible routes to admissibility of a hearsay statement: substantive reliability, procedural reliability or a combination of elements of both substantive reliability and procedural reliability. However, the accused notes that the Supreme Court in Bradshaw cautioned trial judges to exercise “great care” if using the “combined approach” to ensure that it does not lead to the admission of statements when both procedural safeguards and guarantees of inherent trustworthiness are lacking.

Necessity

[77] The accused does not concede that the Crown has established necessity, despite the death of Ms. Bluecoat. The accused suggests that in Khelawon, the Supreme Court imparted a standard of reasonableness into the necessity analysis, such that the Crown must show that all reasonable efforts were made to secure the evidence of the declarant in a way that also preserves the rights of the accused.

[78] The accused submits that the right of the accused in this context is the right to cross-examine the declarant and to test the evidence, which is obviously lost if the evidence is admitted in hearsay form. The accused suggests that the Crown is required to show that reasonable efforts were taken to “uphold the constitutional rights of the accused and to allow for cross-examination where possible”. The accused contends that the Crown has failed to establish that reasonable efforts were made to preserve the right to cross-examine Ms. Bluecoat prior to her death in September 2022.

[79] The accused submits that D/C Deschamps was instructed to meet with Ms. Bluecoat in the summer of 2021 and have her adopt her May 2, 2019, statement under oath because she was a key Crown witness whose evidence had to be preserved for trial. The accused notes that Ms. Bluecoat was 77 years old at the time, frail and in hospital and that the police made no inquiries into her medical condition.

[80] The accused submits that the preliminary inquiry in this case was scheduled for January 25, 2022 and that Ms. Bluecoat would have been called as a Crown witness and therefore available for cross-examination by the accused. However, the Crown proceeded by direct indictment on January 10, 2022. Ms. Bluecoat died on Sept 28, 2022.

[81] The accused submits that the Crown, having proceeded by direct indictment such that Ms. Bluecoat’s cross-examination under oath did not occur at the preliminary inquiry and knowing that Ms. Bluecoat was elderly and frail, failed to take reasonable measures to secure her evidence in a way that preserved the right of cross-examination.

[82] The accused submits that the Crown had nine months following the direct indictment in which to proceed pursuant to s. 709 of the Code and failed to take any action. The accused submits that necessity cannot stem from the inaction of the police or Crown. The accused contends that this failure to make any effort to preserve the right to cross-examine Ms. Bluecoat should be fatal to the Crown application.

Procedural reliability

[83] The accused submits that procedural reliability can only be established if it is shown that there are adequate substitutes for testing the truth and accuracy of the hearsay evidence. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement in the absence of contemporaneous cross-examination, according to the accused.

[84] The accused submits that none of the usual substitutes for testing the hearsay evidence, including the presence of an oath, a warning about the consequences of lying to the police and a video recording of the statement, were present on May 2, 2019, when Ms. Bluecoat’s substantive statement was taken. The accused notes that all that was recorded on that date were the words of the translator, Ms. Lachinette, and D/C Slade acknowledged that he did not transcribe responses verbatim.

[85] The accused suggests that it is impossible for a trier of fact to evaluate the credibility of Ms. Bluecoat or the reliability of her evidence based on the typed questions and answers in the May 2, 2019 statement.

[86] The accused acknowledges that the August 3, 2021, interview of Ms. Bluecoat was taken under oath and videotaped. The accused submits, however, that this is essentially a video of Ms. Makela, the translator, and is nothing more than the translator reviewing the questions and answers given by Ms. Bluecoat on May 2, 2019. The accused suggests that this procedure does nothing to enhance the ability of the trier of fact to evaluate the truth and accuracy of the May 2, 2019 statement.

[87] The accused submits that methods employed by the police when taking the May 2, 2019, and August 3, 2021, statements from Ms. Bluecoat fail are simply not adequate substitutes for testing the truth and accuracy of her evidence and therefore fail to meet the test for procedural reliability.

Substantive reliability

[88] The accused submits that the establishment of threshold admissibility of a hearsay statement by way of substantive reliability, or inherent trustworthiness, essentially amounts to a conclusion that contemporaneous cross-examination of the declarant would serve no useful purpose because of the circumstances in which the statement was made and evidence, if any, that corroborates it.

[89] The accused further submits that corroborative evidence relied on by a proponent to aid in establishing substantive reliability is restricted to evidence which corroborates the material aspects of the hearsay statement that the Crown intends to rely upon, as opposed to evidence which merely bolsters the general credibility of the declarant.

[90] The accused submits that the material aspects of Ms. Bluecoat’s May 2, 2019, statement that the Crown intends to rely on are: (1) that the accused did not know about the fire that morning; and (2) the accused’s reaction when told about the fire. The accused submits that the only person potentially in a position to corroborate these material aspects of Ms. Bluecoat’s statement is Mr. Bluecoat.

[91] The accused contends, however, that Mr. Bluecoat’s evidence cannot be used to corroborate the material aspects of Ms. Bluecoat’s May 2, 2019, statement. The accused notes that Mr. Bluecoat was at home with Ms. Bluecoat on May 2, 2019. The accused suggests that it is reasonable to infer that he heard D/C Slade’s interview of Ms. Bluecoat and/or that the two of them discussed it afterward. In these circumstances, Mr. Bluecoat’s evidence is not independent and loses any corroborative value, according to the accused.

[92] The accused further submits that the record on this application contains no evidence as to the relationship between Ms. Bluecoat and the accused. As a result, the court cannot infer that Ms. Bluecoat did not have a motive to lie to the police and motive is simply a neutral consideration, according to the accused.

[93] The accused submits that the circumstances in which Ms. Bluecoat’s May 2, 2019, statement was made cannot act as an adequate substitute for cross-examination of an elderly witness. The accused contends that given the opportunity, Ms. Bluecoat would have been cross-examined on her ability to hear and understand the questions put to her. Given that Ms. Bluecoat told the police that the accused had no injuries on him when he was at her house, in direct contradiction of cogent evidence to the contrary, the accused submits that the reliability of Ms. Bluecoat’s perception is very much in issue.

[94] The accused submits that the Crown has failed to establish the substantive reliability of Ms. Bluecoat’s May 2, 2019, statement.

Probative value and prejudicial effect

[95] The accused declined to make any oral or written submissions on the court’s residual discretion to exclude evidence.

DISCUSSION

[96] While all relevant evidence is generally admissible, hearsay is presumptively inadmissible. Under the principled exception to the rule against hearsay evidence, hearsay can exceptionally be admitted into evidence when the party tendering it demonstrates that the “twin criteria of necessity and threshold reliability are met on a balance of probabilities”: Bradshaw at para. 23.

[97] By admitting only necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper, protecting trial fairness and the integrity of the truth-seeking process. In criminal proceedings, the threshold reliability analysis has a constitutional dimension because the difficulties of testing the hearsay evidence can arguably threaten the accused’s right to a fair trial. Even when satisfied that the hearsay is necessary and sufficiently reliable, a trial judge retains a residual discretion to exclude the evidence if its prejudicial effect outweighs its probative value: Bradshaw at para. 24.

[98] The parties agree on the methodology for trial judges to follow in determining threshold reliability, as set out in Khelawon and Bradshaw and as summarized by the Ontario Court of Appeal in McMorris, at paras. 26-31:

[26] Threshold reliability is established by showing that cross-examination of the declarant is unnecessary because there are: (1) adequate substitutes for testing truth and accuracy (procedural reliability); or (2) sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability); or (3) a combination of elements of both procedural and substantive reliability…

[27] The trial judge must specify the statement’s particular hearsay dangers regarding the declarant’s perception, memory, narration, or sincerity, and must evaluate whether and how the dangers specific to the case can be overcome because the truth of the statement cannot be tested by the declarant’s cross-examination.

(i) Procedural Reliability

[28] Procedural reliability is established by showing that there are adequate substitutes for testing the hearsay evidence to permit the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes might be a video or audio recording of the declarant’s statement, the presence of an oath, or a warning to the declarant about the consequences of lying.

(ii) Substantive Reliability

[29] Substantive reliability is established by showing that the hearsay statement is inherently trustworthy because of the circumstances in which the declarant made it and evidence, if any, that corroborates it.

[30] The standard for substantive reliability is high, but what is commonly referred to as the “circumstantial guarantee of trustworthiness” does not require absolute certainty. The trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process,” for example, when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken,” so that the statement is so reliable that it is “unlikely to change under cross-examination,” or when the only likely explanation is that the statement is true: Bradshaw, at para. 31.

(iii) The Role of Corroborative Evidence

[31] A trial judge may rely on corroborative evidence to find that a hearsay statement shows sufficient substantive reliability to justify a finding of threshold reliability: Bradshaw, at para. 4. Karakatsanis J. set out the methodology and the principles for the use of corroborative evidence in the substantive reliability analysis in Bradshaw, at para. 57:

1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Necessity

[99] It would generally be common ground that the necessity requirement was satisfied if a hearsay declarant had passed away before trial, as in this case. However, the accused, citing Khelawon at para. 104, argues that in the particular circumstances of this case, the Crown has failed to make all reasonable efforts to secure the evidence of Ms. Bluecoat in a manner that also preserves his right to test Ms. Bluecoat’s evidence by contemporaneous cross-examination and that the necessity requirement has therefore not been established.

[100] Ms. Bluecoat was 75 years old when she gave her statement on May 2, 2019. On July 14, 2021, D/C Deschamps met with Ms. Bluecoat at the Sioux Lookout hospital to review the May 2, 2019, statement with her and to request that she adopt the statement under oath. As I understand the evidence, this was done with several Crown witnesses.

[101] D/C Deschamps described Ms. Bluecoat as being “elderly and somewhat frail” and “not engaged” the first time D/C Deschamps met Ms. Bluecoat in July 2021. Ms. Bluecoat declined to adopt her statement under oath on that date. D/C Deschamps was not instructed to make any inquiries about Ms. Bluecoat’s health or medical condition in July 2021, nor did she do so on her own initiative.

[102] On August 3, 2021, Ms. Bluecoat remained in hospital and D/C Deschamps met with her again. D/C Deschamps reviewed Ms. Bluecoat’s May 2, 2019, statement with her with the assistance of an interpreter. On this date, Ms. Bluecoat adopted her May 2, 2019 statement under oath. The interaction was videotaped.

[103] As of August 3, 2021, Ms. Bluecoat had been in hospital for at least three weeks. Once again, D/C Deschamps was not instructed to inquire about Ms. Bluecoat’s health or general medical condition. D/C Deschamps did not ask Ms. Bluecoat directly about her health or medical condition.

[104] The preliminary inquiry in this matter was scheduled for January 24, 2022. Ms. Bluecoat was scheduled to testify and would have been cross-examined about her observations of May 2, 2019. On January 10, 2022, a direct indictment was preferred, the preliminary inquiry was cancelled, and the accused lost his opportunity to cross-examine Ms. Bluecoat who died nine months later, on September 28, 2022, at the age of 78.

[105] The Crown preserved the evidence of Ms. Bluecoat by having her review and adopt her May 2, 2019, statement under oath on August 3, 2021. The Crown did not, however, do so in a way that also preserved the right of the accused to cross-examine the declarant. They also did nothing to preserve the accused’s opportunity to cross-examine Ms. Bluecoat after the cancellation of the preliminary inquiry, suggesting that the procedure set out in s. 709 of the Code is “exceptional” and, in any event, also available to the accused.

[106] The accused submits there is no evidence that the Crown or police gave any thought to preserving his right to procedural fairness, despite knowing there was a chance Ms. Bluecoat would not be alive at the time of trial. Given these facts, the accused submits that the actions of the state were unreasonable, and that necessity has not been proven on a balance of probabilities.

[107] The accused’s argument is persuasive. However, after careful consideration, I reject the submissions of the accused and find that necessity has been established as a result of the death of Ms. Bluecoat and in spite of the actions of the police.

[108] First, as noted by the Crown, there is a presumption that prosecutorial discretion is exercised in good faith: R. v. Anderson, 2014 SCC 41, citing Application Under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 at para. 95.

[109] Prosecutorial discretion is an expansive term that includes the decision to prefer a direct indictment: Anderson at para. 44. I note the Supreme Court’s emphasis that care must be taken to distinguish prosecutorial discretion from the Crown’s constitutional obligations: Anderson at para. 45.

[110] Second, as noted in R. v. Smith, [1992] 75 CCC (3d) 257, at paras. 34 and 36, necessity refers to the necessity of the hearsay evidence to prove a fact in issue because the relevant direct evidence is not available, for one reason or another.

[111] In considering the requirement of necessity and the issue of a proponent’s efforts to preserve the rights of the accused, it must be remembered that the right of the accused in this context is the right to test and challenge the reliability of the declarant’s evidence through cross-examination.

[112] In Khelawon, the Court, at para. 105, comments on this point. The Court notes that the “central concern” arising from the hearsay nature of the evidence is the inability to test the reliability of the evidence in the usual way and that the hearsay evidence will not be admissible unless there is a sufficient substitute basis for testing the evidence or the contents of the statement are sufficiently trustworthy (emphasis mine).

[113] In my view, the Supreme Court is suggesting that the bar for a proponent to establish necessity is not as high as the accused suggests and that the focus of the inquiry under the principled exception to the hearsay rule is on threshold reliability, either substantive or procedural.

[114] In general terms, it is recognized that an accused’s inability to test a declarant’s evidence may impact an accused’s ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms, which is in turn linked to the right to a fair trial.

[115] However, as noted by Charron J. in Khelawon, at para. 48:

The constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns. In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern.

[116] At para. 49 of Khelawon, the Supreme Court further observed that the broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The Court went on to note that the “criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay from”.

[117] The relevant, direct evidence of Ms. Bluecoat is no longer available because of her death. In my view, losing the value of her evidence is inconsistent with society’s interest in having the trial process arrive at the truth, if trial fairness and the overall integrity of the trial process can be ensured at the same time. Ensuring the integrity of the trial process is the function of the criterion of reliability.

[118] The accused has persuasively argued that the Crown has not satisfied its onus of establishing necessity in the circumstances of this case. In Khelawon, at para. 104, Charron J. has, in obiter, alluded to a proponent potentially failing the necessity analysis in the absence of reasonable efforts to preserve the rights of the other party. However, the parties have not provided me with any authority where this has occurred in the 16 years following Khelawon.

[119] I do note that in R. v. Watson 2022 ONSC 6021, the Court refused to admit the unsworn hearsay statements provided to police by two witnesses who were not called at trial as they were believed to be somewhere in China.

[120] In Watson, after taking their statement, police learned the witnesses intended to return to China. However, nothing was done to preserve the evidence through an oath or affirmation or any other means. The Crown sought a direct indictment in the face of “near certainty” that the couple would be gone by the time of trial.

[121] At para. 94, the Court found that necessity cannot be established through the neglect of a proffering party. In addition, the statements were found not to be reliable, in part because police failed to engage a translator despite the unequivocal language barriers.

[122] In this case, it would no doubt have been desirable for the Crown to have taken additional steps to safeguard Ms. Bluecoat’s hearsay statement. However, the facts by no means rise to the level of “neglect” on the part of police or the Crown as contemplated in Watson.

[123] I conclude that the requirement of necessity has been satisfied due to the death of Ms. Bluecoat.

Threshold reliability

[124] Having found that necessity has been established, I must now determine if the Crown has also established the threshold reliability of Ms. Bluecoat’s hearsay statements on a balance of probabilities, such that the jury will have a satisfactory basis for evaluating the ultimate reliability of this evidence.

[125] Threshold reliability is established if it is shown that there are:

• Sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy because of the circumstances in which the declarant made it and evidence, if any, that corroborates it (substantive reliability); or
• Adequate substitutes for testing truth and accuracy (procedural reliability); or
• A combination of elements of both procedural and substantive reliability.

Substantive reliability

[126] The Ontario Court of Appeal in McMorris, at para. 30, citing Bradshaw at para. 31, noted that the standard for substantive reliability is high, but the “circumstantial guarantee of trustworthiness” does not require absolute certainty. As stated by the Supreme Court in Khelawon, at para. 49, “because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”.

[127] In Bradshaw, at para. 31, Karakatsanis J. observed that the level of certainty required to establish substantive reliability has been articulated in different ways by the Supreme Court, including the following:

• The statement is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken;
• The statement is made under circumstances that even a sceptical caution would look upon as trustworthy;
• The statement is so reliable that it is unlikely to change under cross-examination;
• There is no real concern about whether the statement is true or not because of the circumstances in which it came about; or
• The only likely explanation is that the statement is true.

[128] For the purposes of the substantive reliability analysis, it is necessary to identify the material aspects of Ms. Bluecoat’s May 2, 2019, statement which the Crown intends to rely on at trial for their truth.

[129] The Crown submits that the material aspects of the statement which it intends to rely on are:

1. That the accused went to Ms. Bluecoat’s home at approximately 7:00 a.m. on May 2, 2019;
2. That when he arrived at Ms. Bluecoat’s home, he did not mention the fire;
3. That Ms. Bluecoat told the accused about the fire; and
4. That the accused did not mention seeking help in regard to the fire, stating to Ms. Bluecoat that he had been at William Cromarty’s home.

[130] The accused submits that the material aspects of Ms. Bluecoat’s May 2, 2019, statement that the Crown truly intends to rely on are:

1. That Ms. Bluecoat told the accused about the fire; and
2. That the accused was surprised and upset when told about the fire.

[131] For the purposes of this analysis, I accept the position of the accused as to the material aspects of Ms. Bluecoat’s May 2, 2019 statement which the Crown intends to rely on at trial for their truth. The probative value of Ms. Bluecoat’s statement is, in my view, found in these two segments of her statement.

[132] The specific hearsay dangers associated with these two material aspects of Ms. Bluecoat’s statement are that she may been untruthful with D/C Slade on May 2, 2019 and/or that she was mistaken or inaccurately perceived the accused’s reaction when she told him about the fire. As noted by the accused, Ms. Bluecoat answered “no” when asked by D/C Slade if the accused was injured when he attended at her home on the morning of May 2, 2019. There is cogent evidence to the contrary in the record on this application.

[133] The circumstances in which Ms. Bluecoat’s May 2, 2019, statement came about include the following:

1. D/C Slade and Ms. Lachinette met with Ms. Bluecoat in her home to take her statement during the early evening of the day of the fire. The interview began at 6:34 p.m. and concluded at 7:05 p.m. The fire began at approximately 5:00 a.m. that day and Ms. Bluecoat was being questioned about events which occurred at approximately 7:00 a.m. that day. The events of that morning would therefore have been fresh in her mind;
2. D/C Slade and Ms. Lachinette testified that Ms. Bluecoat agreed to provide a statement when told why they were there and invited them into her home;
3. Ms. Lachinette and Ms. Bluecoat had known each other for approximately 40 years;
4. D/C Slade described Ms. Bluecoat’s as being normal, calm and pleasant; Ms. Lachinette described Ms. Bluecoat as calm and helpful;
5. Ms. Lachinette had no difficulty translating D/C Slade’s questions to Ms. Bluecoat, Ms. Bluecoat had no difficulty understanding or responding to any of the questions and Ms. Lachinette did not have to repeat, explain or clarify any questions put to Ms. Bluecoat;
6. The interview was concise and the matters discussed were not complex. Neither D/C Slade or Ms. Lachinette testified as to any difficulties with Ms. Bluecoat’s ability to perceive, remember or relate the matters discussed;
7. Ms. Bluecoat’s answers were directly responsive to the questions put to her. The accused’s attendance at her home that morning was brief, but Ms. Bluecoat provided significant detail in her responses:
8. The events being discussed – the tragic fire 14 hours earlier and the accused being at her home that morning immediately following the fire – were shocking and would have been highly memorable to Ms. Bluecoat, the aunt of the accused;
9. While one question put to Ms. Bluecoat was leading – “Can you tell me about [the accused] coming to your house” – Ms. Bluecoat’s material responses to that question and a subsequent question were not prompted – “I startled him with news about the house fire”, “He just walked in like he was normal”, “He was hysterical when I told him about the fire”; and
10. Ms. Lachinette reviewed the statement with Ms. Bluecoat by “reading everything back to her” prior to Ms. Bluecoat signing it.

[134] D/C Slade and Ms. Lachinette will testify at trial and be cross-examined about the May 2, 2019, interview of Ms. Bluecoat.

[135] The accused has not suggested any plausible alternative explanations for the material aspects of Ms. Bluecoat’s May 2, 2019, statement. In my view, there would have been no reason for Ms. Bluecoat to have been intentionally untruthful in her responses to D/C Slade’s questions, in particular the material aspects the Crown intends to rely on. Ms. Bluecoat could not have been aware of the significance of her responses to D/C Slade’s questions or of the implications or consequences of her responses to the accused. Ms. Bluecoat’s responses in relation to the material aspects of the statement that I have found the Crown intends to rely on are not, in isolation, damaging or incriminating to the accused.

[136] The fact that Ms. Bluecoat appears to have been mistaken when responding to being asked if the accused was “injured” when at her home on the morning of May 2, 2019, does not, in my opinion, negate the inherent trustworthiness of the material aspects of her statement, as identified.

[137] I accept the submission of the accused that the only person potentially in a position to corroborate the material aspects of Ms. Bluecoat’s May 2, 2019, statement is Mr. Bluecoat. I further accept the submission of the accused that because Mr. Bluecoat was present in their home when Ms. Bluecoat was interviewed, it can reasonably be inferred that he overheard Ms. Bluecoat’s statement. As a result, I find that Mr. Bluecoat is not independent and cannot properly corroborate the contents of Ms. Bluecoat’s May 2, 2019, statement.

[138] However, even absent corroboration of the material portions of Ms. Bluecoat’s May 2, 2019 statement, having heard the testimony of D/C Slade and Ms. Lachinette and having reviewed the circumstances in which Ms. Bluecoat’s May 2, 2019, statement was taken, I am persuaded that it is highly unlikely that Ms. Bluecoat was either untruthful or mistaken in her responses to D/C Slade’s questions on May 2, 2019, pertaining to the material aspects of her statement. I therefore conclude that this hearsay evidence is inherently trustworthy and sufficiently reliable to allow a jury a satisfactory basis to evaluate and weigh the evidence.

[139] It is reasonable to conclude that Ms. Bluecoat may very well have been mistaken when she responded “no” when asked by D/C Slade whether the accused was injured when at her home on the morning of May 2, 2019. However, in my view, this is properly a question of ultimate reliability to be considered by the trier of fact.

[140] I find that the Crown has established substantive reliability and therefore the threshold reliability of Ms. Bluecoat’s May 2, 2019, statement.

[141] In the event that I am incorrect in this conclusion, I now turn to an analysis of procedural reliability.

[142] I find that the Crown has also established the procedural reliability of Ms. Bluecoat’s May 2, 2019, statement. In my view, there are adequate substitutes for testing the evidence in the absence of contemporaneous cross-examination.

[143] D/C Slade transcribed each of the questions and answers. The questions were simple. D/C Slade would type the question before posing it, through an interpreter, to Ms. Bluecoat. The answers provided by Ms. Bluecoat were short and responsive.

[144] D/C Slade testified that he did not type each question verbatim. However, he clarified that beyond omitting the “ums and ahs”, he recorded the statement as accurately as possible.

[145] Ms. Bluecoat provided the May 2, 2019 statement in her own home. She did so in the hours after the accused left her residence.

[146] Although the May 2, 2019 statement was not made under oath, I remain satisfied that there are adequate substitutes for testing its truth and accuracy. Ms. Bluecoat’s responses were relayed through Ms. Lachinette, who testified that she had known Ms. Bluecoat since she was a little girl. Ms. Lachinette described her as “calm” and “helpful”. Ms. Bluecoat adopted her statement, under oath, on August 3, 2021. The video shows Ms. Makela taking great care to be precise and accurate in her translation. When asked, Ms. Bluecoat says she has nothing to add or change.

[147] Although Ms. Bluecoat appears to fall asleep during the August 3, 2021 video, Ms. Makela immediately takes steps to ensure that she is alert before resuming with the translation.

[148] In the context of procedural reliability, the Supreme Court in Bradshaw wrote that “[s]ubstitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying…However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial is usually required” (citations omitted, emphasis mine).

[149] Two years later, the Ontario Court of Appeal in McMorris wrote at para. 24:

Although it has been said that some form of cross-examination of the hearsay declarant is usually required, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, the whole point of the principled exception to the hearsay rule is that exceptions are acceptable in certain circumstances (emphasis mine).

[150] In my view, this is a case where there are adequate safeguards which establish procedural reliability, in spite of the absence of any form of cross-examination of the declarant.

Residual discretion to exclude evidence

[151] I accept the submission of the Crown, unopposed by the accused, that the probative value of Ms. Bluecoat’s May 2, 2019, statement outweighs any possible prejudicial effect created by its admission at trial. As a result, I decline to exercise my residual discretion to exclude the evidence.

[152] The Crown’s application to admit the May 2, 2019, July 14, 2021, and August 3, 2021, statements of Ms. Bluecoat into evidence at the trial of the accused is granted.

The Honourable Mr. Justice J.S. Fregeau Released: April 17, 2023

COURT FILE NO.: CR-22-00000025-0000 DATE: 2023-04-17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Applicant - and – ARCHIE MCKAY Respondent REASONS ON APPLICATION Fregeau J. Released: April 17, 2023 /dg