Court File and Parties

COURT FILE NO.: CR-21-5249 DATE: 2023-10-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Kahli Johnson-Phillips Accused

Counsel: Bryan Pillon and Jayme Lesperance, for the Crown Michael A. Moon and Nicole DeBellefeuille, for the Accused

HEARD: October 17, 2023

Ruling on Crown Voir Dire

HEBNER J.

[1] Mr. Johnson-Phillips has been charged on a two-count indictment arising out of an incident that took place in the early morning hours of August 27, 2018, in downtown Windsor. Specifically, Mr. Johnson Phillips is alleged to have committed first degree murder of Jason Pantlitz-Solomon and attempted murder of Camille Lufitha-Molima.

[2] What is before me is an application brought by the Crown to admit at trial a police interview of a witness, Ms. Keima Davis-Baynes, made on July 10, 2019, for the truth of its contents. Admission is sought on the principled exception to the hearsay rule. The accused does not oppose the application. The accused concedes that all of the requirements necessary to admit the statement are present and that the potential prejudicial effect to the accused does not outweigh the probative value.

Overview

[3] The Crown asserts that the accused, along with another male and Keima Davis-Baynes, drove in a white Nissan Altima from Mississauga to downtown Windsor the night of August 26, 2018, arriving in the early morning hours of August 27, 2018. The Crown asserts that the accused and the other male left the vehicle, shot the two victims and returned to the vehicle. All three persons then drove back to Mississauga.

[4] The Peel Regional Police Service conducted a high-risk takedown of the Altima the evening of August 27, 2018, in Mississauga. Police saw a male flee from the vehicle. Ms. Davis-Baynes was seated in the front passenger seat of the Altima at the time of the takedown and was arrested.

[5] Keima Davis-Baynes provided a statement to police on July 10, 2019. In that statement, Ms. Davis-Baines said that it was the accused, Kahli Johnson-Phillips, who accompanied her to downtown Windsor the night of August 26, 2018 and into the early morning hours of August 27, 2018. She also said that it was Mr. Johnson-Phillips who fled from the Altima when Peel Regional Police Service stopped the Altima on the evening of August 27, 2018, in Mississauga.

[6] Ms. Davis-Baynes testified at trial on October 16, 18, and 19, 2023 in a manner inconsistent with her statement to police. In her viva voce trial evidence, she said that it was a man named “George” also known to her as “general” who fled from the Altima at the time of the takedown. She said it was George who accompanied her to downtown Windsor the night of August 26, 2018.

[7] During her testimony on October 16, 18, and 19, Ms. Davis-Baynes was given many opportunities to refresh her memory. She said that would not be of assistance to her.

[8] Ms. Davis-Baynes has not adopted her July 10, 2019 statement. She has recanted her statement that Mr. Johnson-Phillips was in the Altima on the drive from Mississauga to Windsor and back. She has recanted her statement that it was Mr. Johnson-Phillips who fled from Peel Regional police officers the night of August 27, 2018.

Legal Principles

[9] A statement of a witness taken by police and tendered as evidence at trial for proof of what is stated in the statement is classic hearsay. The legal principles are set out in the Supreme Court decision of R. v. Bradshaw, 2017 SCC 35 (“Bradshaw”). At paras. 1 and 24, Karakatsanis J., speaking for the majority, summarizes the concern and the avenue for admission:

Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in the absence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial's truth-seeking process and trial fairness. However, hearsay may exceptionally be admitted into evidence under the principled exception when it meets the criteria of necessity and threshold reliability.

By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects 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 hearsay evidence can threaten the accused's right to a fair trial. Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value (citations omitted).

[10] Accordingly, to deal with the Crown’s application, I must consider whether the videotaped police statement of Ms. Davis-Baynes meets the criteria of necessity and threshold reliability. If those two requirements are met, I must consider whether the prejudicial effect of the hearsay statement outweighs its probative value.

Necessity

[11] In Bradshaw, necessity was established because the witness refused to testify. In R. v. B.(K.G.), [1993] 1 S.C.R. 740 (“B.(K.G.)”), necessity was established because the witness had recanted. In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 78 (“Khelawon”), the Supreme Court said:

As we know, the Court ultimately ruled in B.(K.G.), and the principle is now well established, that necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases, such as in B.(K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.

[12] Here, Ms. Davis-Baynes has recanted her earlier statement. She now claims that Mr. Johnson-Phillips was not in the Altima on the drive from Mississauga to Windsor and back and that Mr. Johnson-Phillips was not the person who fled from police the evening of August 27, 2018. Necessity has been established because that testimony is not available.

Threshold Reliability

[13] The main concern underlying the rule against hearsay is the inability to test the evidence with contemporaneous cross-examination. The reliability requirement is aimed at determining whether this difficulty is sufficiently overcome to justify admitting the evidence as an exception to the hearsay rule.

[14] The Supreme Court, in R. v. Devine, 2008 SCC 36 at para. 20, said:

The reliability requirement is usually met in one of two ways, which are not mutually exclusive. "One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about.... Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested" (Khelawon, at paras. 62-63).

[15] Bradshaw tells us that threshold reliability can be established by showing the presence of either procedural reliability or substantive reliability or some combination of the two.

[16] Procedural reliability is established when “there are adequate substitutes for testing the evidence” given the absence of contemporaneous cross-examination in court. As the statement is offered by itself, the declarant is not present before the fact finder, while under oath, and the declarant’s evidence is not tested by contemporaneous cross-examination. As a consequence, there is a search for substitutes. “These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement” (Bradshaw at para. 28). Traditional substitutes include the video recording of the statement, the presence of an oath and a warning about the consequences of lying. Usually, some form of cross-examination is required (for example, preliminary inquiry evidence or trial cross-examination of a recanting witness as in B.(K.G.)).

[17] Substantive reliability is established if the statement is “inherently trustworthy” (Bradshaw, para. 30). The statement must be “so reliable that contemporaneous cross‑examination of the declarant would add little if anything to the process” (Bradshaw, at para. 31). To determine whether the statement is inherently trustworthy, the trial judge may consider the circumstances in which it was made and evidence that corroborates or conflicts with the statement (Bradshaw, para. 30). The standard for substantive reliability is high but absolute certainty of reliability is not required.

[18] In this case, the statement was made under oath. There is a video of the statement. The witness was warned of the consequences of failing to tell the truth. Most importantly, although there was no contemporaneous cross-examination, the witness is available for cross-examination at the trial. The procedural reliability is established.

[19] As for substantive reliability, the Crown has pointed to multiple instances where information provided by Ms. Davies-Baynes in the statement is corroborated by independent evidence. The corroborations enhance the overall reliability of the statement as a whole.

[20] In my view, the threshold reliability of the statement has been met.

Disposition

[21] I agree with counsel that the prejudicial effect of the statement does not outweigh its probative value.

[22] For these reasons, I grant the Crown’s application.

“original signed and released in hard copy at court by Hebner J.” Pamela L. Hebner Justice

Released: Orally and in writing – October 19, 2023