COURT FILE NO.: 22-M13830
DATE: 2023/09/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King v. Devon Wynne
BEFORE: Justice A. Doyle
COUNSEL: Julian Daller and David Rodgers, Counsel for the Crown
Joseph Addelman and Samantha Robinson, Counsel for the Accused
HEARD: September 26 and 27, 2023
ENDORSEMENT
Overview
[1] Devon Wynne has been charged with the second-degree murder of Jayko Partridge who was stabbed on January 22, 2022 in unit 239 at the 251 Hannah Street apartment building in Ottawa.
[2] The Crown has brought an application to adduce into evidence at the jury trial the video recorded statement of Joobah Attagutsiak, a witness to the stabbing, (also referred to as the “declarant”) who is now deceased.
[3] Mr. Attagutsiak was interviewed by the Ottawa Police Service (OPS) on the morning of January 22, 2022 approximately two hours after the stabbing.
[4] In his statement, Mr. Attagutsiak provides evidence of his observations on the day of the stabbing including observing the accused enter his apartment and stabbing Mr. Partridge.
[5] The videotape footages (referred to as “hallway video”) filed show Mr. Wynne’s presence in the hallway in the Hannah building where units 237 and 239 are located across from each other and his movements back and forth between these two units.
[6] In the hallway video, Mr. Wynne is observed entering into unit 239 right after another individual named Molly Atagootak (“Molly”). Approximately 30 seconds later, Mr. Wynne is escorted out of unit 239 by Andrew Nicholson. Mr. Wynne is carrying a knife. Footage shows Mr. Partridge leaving unit 239 seconds later bleeding profusely followed by Molly. Mr. Partridge died shortly thereafter.
[7] Mr. Attagutsiak’s videotaped statement is hearsay and therefore presumptively inadmissible but may be admitted under the principled exception to the hearsay rule.
[8] The Crown must prove on the balance of probabilities that the evidence is necessary and that it satisfies the procedural and/or substantive reliability requirements.
[9] The defence argues, among other things:
Given that the Crown sought a direct indictment, there was no preliminary hearing which would have afforded the defence the opportunity to cross-examine Mr. Attagutsiak;
The Crown is unable to establish the threshold reliability either procedurally or substantively;
The interviewing officer did not conduct a lengthy interview or ask probing questions and he did not have the benefit of the hallway video to assist him with respect to any inaccuracies in Mr. Attagutsiak’s recollection of that evening;
There are concerns that the declarant’s memory and perception would have been impaired at the time of the interview as he had admitted to consuming alcohol on the night of the stabbing;
It is difficult to determine if the declarant was underestimating or overestimating his sobriety;
His evidence could also be impacted as he had been up all night and he had just observed a traumatic event;
Given that the declarant had a close relationship with Mr. Partridge, the declarant may have a motive to fabricate;
There is no substantive reliability as the declarant’s description of the knife varies;
There is also another inconsistency between the declarant’s evidence and the video as the declarant states that Molly was in the apartment and there was a gap of time before the accused attends, knocks and enters his apartment, whereas the hallway video shows the accused entering the apartment immediately after Molly without knocking;
There is no opportunity to cross-examine the declarant as to this significant inaccuracy and whether it is because, as the Crown suggests, he was in the washroom and his vision may have been obstructed;
There is also the issue as to whether Mr. Partridge had a weapon before the stabbing;
The declarant states that Mr. Partridge did not have one after the alteration and the first responders confirm this as well;
The declarant’s description of the accused is inaccurate as it describes his sweater on that morning as being grey, white, red and black with a red stripe on the bottom part of the sweater and black on top. In contrast, the hallway video shows that the accused was wearing a black sweater. It is speculative to suggest that the red on the sweater is blood;
He also describes Mr. Wynne as a few inches shorter than he really is;
The defence will not be able to cross-examine on previous inconsistent statements made to Constable Cross; and
In conclusion, all the above undermine the substantive relatability of his statement.
Legal Framework
[10] It is settled law that hearsay statements may be admitted if necessity is made out and the threshold of procedural and/or substantive reliability has been shown.
[11] Threshold reliability is established when a hearsay statement “is sufficiently reliable to overcome the dangers arising from the difficulty of testing” the statement: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 26, citing R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49.
[12] Procedural reliability is established by adequate substitutes for testing the evidence such as video recording, an oath or a warning to tell the truth.
[13] Substantive reliability is established if the statement is inherently trustworthy and the court can consider the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement.
[14] In Bradshaw, the Supreme Court of Canada placed stringent limits on the use of corroborative evidence. The Court described two strands of reliability which would justify admissibility: (1) procedural reliability (where adequate substitutes for testing the evidence exist such as a video recording, the presence of an oath, and a warning about lying); and (2) substantive reliability (where the statement is inherently trustworthy).
[15] At para. 40, Karakatsanis J. added that “substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy” (emphasis in original).
[16] Turning to the use of corroborative evidence, Karakatsanis J., at para. 57, directed that in deciding whether corroborative evidence was of assistance in the substantive reliability analysis, a trial judge should:
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
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.
[17] In addition, as stated at para. 32 of Bradshaw, procedural and substantive reliability “may work in tandem.” That is, in certain circumstances, neither procedural nor substantive reliability on their own provide a sufficient basis to admit a hearsay statement but where together they may clear the threshold reliability.
[18] In R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 115, leave to appeal refused, [2019] S.C.C.A. No. 162, Watt J.A. noted that procedural and substantive reliability “afford two routes to the same destination … [and] are equivalents in the quest to establish threshold reliability.”
[19] As stated by the Ontario Court of Appeal in its recent decision of R. v. Budimirovic, 2023 ONCA 609, at para. 21: “If procedural reliability is sufficiently made out, then substantive reliability does not need to be established.”
Background
[20] The Crown alleges that the accused stabbed Jayko Partridge after 6 a.m. on January 22, 2022 in unit 239 of 251 Hannah Street, Ottawa.
[21] The following are the agreed facts for the purposes of this pre-trial motion.
[22] Hallway surveillance videos from 251 Hannah Street on 21-22 January 2022, along with corrected timestamps, are admissible without the need for authentication.
[23] Police photos taken of unit 239 at 251 Hannah Street on 22 January 2022 are admissible without the need for authentication.
[24] On January 21-22, 2022, Joobah Attagutsiak was the tenant of unit 239 at 251 Hannah Street. Christianna Wabano was the tenant of unit 238 across the hall.
[25] Constable Russell and Constable Belair arrived on scene at 215 Montreal Road around 0621 a.m. on 22 January 2022, having been dispatched minutes earlier. They found the injured Jayko Partridge outside of 215 Montreal Road and rendered assistance. No weapons were located on him. No weapons were located by other officers in the general area travelled by Mr. Partridge between 251 Hannah Street and 215 Montreal Road.
[26] Officers attending at unit 239 at 251 Hannah Street on 22 January 2022 did not locate any weapons (i.e. obvious weapons, such as guns or knives) within the room. The kitchen knife, under the microwave stand in the far corner of the room, was dusty and is not considered a weapon.
[27] Around 0623 hours on 22 January 2022, Constable Nicolas Hope arrived at 215 Montreal Road, found an area of fresh blood, and followed a blood trail back to 251 Hannah Street. The blood was visible through the door and along the hallway. He requested a second officer to assist with searching further inside.
[28] Constable Andrew Cross, shortly after 0631 hours on 22 January 2022, joined Constable Nicolas Hope in attending 251 Hannah Street. They attended units 239 and 238. Constable Hope observed the lone male occupant in unit 239, later determined to be Joobah Attagutsiak, sitting on the bed with a blanket wrapped around him, and heard him say the words “he’s gone”. Thereafter, Constable Cross had further dealings with Mr. Attagutsiak.
[29] Constable Hope turned his focus to the occupants of unit 238, Christianna Wabano and Andrew Nicholson, and spoke with them. Constable Hope ultimately directed them to a cruiser for transport to the police station to provide statements. Constable Hope found fresh footprints out the rear of 251 Hannah Street but did not find Mr. Wynne at a nearby residence.
[30] Constable Erik Sundholm temporarily retrieved Joobah Attagutsiak from Constable Cross at 0653 hours and placed him in the rear of his cruiser. They did not discuss the incident. Constable Cross retrieved Mr. Attagutsiak again at 0720 hours for transport to 474 Elgin Street.
[31] Constable Luc Plante attended the lobby of the police station at 474 Elgin Street on 22 January 2022 around 0802 hours, relieving Constable Cross. Witnesses Andrew Nicholson, Christianna Wabano and Joobah Attagutsiak were present and had been provided food and drinks. They had been advised not to speak with each other, and they sat far apart from each other. They did not speak with each other at the lobby. Detective Chris O’Brien retrieved Joobah Attagutsiak for his interview at 0836 hours.
[32] Responding officers did not observe any blood inside unit 238 on 22 January 2022. Beyond those observations, a thorough search of the unit was not conducted, based on information known at the time.
[33] Devon Wynne did not have any obvious injuries when photos were taken after his arrest January 26, 2022.
[34] Following his arrest and police interview, Mr. Wynne was measured as being 177 cm tall (5’10”) and weighing 66 kg (146 lbs).
[35] Those are the facts admitted for the purposes of this motion.
[36] The deceased, Mr. Attagutsiak was a tenant of unit 239 and was present at the time of the stabbing.
[37] After the stabbing on the same day, Mr. Attagutsiak provided a sworn video recorded statement to Sergeant Christopher O’Brien starting at approximately 8:50 a.m.
[38] Mr. Attagutsiak passed away in January 2023 and the Crown was apprised of this fact in May 2023.
[39] At the voir dire, the Crown filed the following as evidence:
Hallway video from January 22, 2022;
Photos of unit 239 taken after the stabbing include a close up of the blood on the carpet in the far-right corner of the unit near the electrical room;
Photos of the accused, the deceased and Molly;
CPIC record showing that Mr. Attagutsiak had no criminal record;
The video recorded statement of Mr. Attagutsiak on January 22, 2022;
A sworn statement signed by Mr. Attagutsiak acknowledging that he had been affirmed, promising to tell the truth. It confirmed that he was advised of the repercussions if he failed to tell the truth and that the evidence he gave may result in criminal charges; and
Statement of Mr. Wynne made to the OPS on January 26, 2022.
[40] The court heard from two witnesses.
[41] Constable Andrew Cross, who was with the OPS at the time, testified that he received a dispatch to 215 Montreal Road on January 22, 2022. When he arrived there, he observed someone, who was covered in blood, banging on the lobby window (later identified as Mr. Partridge). There was a woman with him who was very emotional and hysterical (later identified as Molly).
[42] He received a call on the radio from Officer Hope who had followed the blood trail from 215 Montreal Road to unit 239 at 251 Hannah Street.
[43] Another officer attended to Molly while Constable Cross joined Officer Hope at 251 Hannah Street. They both entered the front door and went to units 238 and 239. Constable Cross is visible on the hallway video and at one point leaves momentarily to go to the front door to check the address number.
[44] Mr. Attagutsiak had opened the door of unit 239 and Constable Cross enters. He was not aware of Mr. Attagutsiak’s involvement and observed that the unit was in disarray and messy with blood on the floor. Mr. Attagutsiak was calm and coherent and spoke in a flat tone.
[45] He eventually took Mr. Attagutsiak to the police station and advised him not to talk to the other witnesses.
[46] He had no specific recollection of searching him for weapons but believes that would have been his normal course given that there was a knife attack.
[47] Mr. Attagutsiak showed no signs of slurring of his speech. He was able to keep a coherent conversation and demonstrated no emotions.
[48] The next and last witness was Sergeant Christopher O’Brien who works with the OPS homicide unit and has been with there for 23 years. It was his day off but he was called in to interview Mr. Attagutsiak. Two other witnesses were also being interviewed by other officers. They were separated in the lobby at 474 Elgin Street police headquarters.
[49] He retrieved Mr. Attagutsiak in the lobby where he was sleeping.
[50] The video of Mr. Attagutsiak’s statement was shown in Court. At the beginning of the video while the detective was obtaining a coffee for him, Mr. Attagutsiak can be seen sleeping in his chair in the interview room.
[51] At the commencement of the interview, Mr. Attagutsiak provided an affirmation that he would tell the truth, and failure to do so could result in perjury charges. He signed a form confirming that his evidence could be used with respect to future charges.
[52] He said that Jayko was staying with him and he did not know his last name but he was his cousin.
[53] Molly, from across the hall in unit 238, had come to his unit earlier in the evening about two hours before the stabbing. Mr. Wynne had been there for three minutes.
[54] Early in the evening Pia had been there and she had left.
[55] Later in the evening Molly returned to the unit. The “young man” (who is later identified as Mr. Wynne) knocked on the door and Molly let him in. He said that Mr. Wynne did not appear aggressive when he entered unit 239.
[56] Mr. Wynne said that Molly had not been respectful to him. Mr. Partridge who had been sleeping on the floor told Mr. Wynne to get out.
[57] Mr. Attagutsiak said he was in the washroom when Mr. Wynne had entered the unit.
[58] After Mr. Partridge told him to get out, he could see Mr. Wynne take out his knife and strike Mr. Partridge. Since he was in the bathroom, he did not know where Mr. Partridge was stabbed.
[59] He did not know who this person who stabbed Mr. Partridge was although he had seen him twice per week for the last couple of months as he had been staying in unit 238 across the hall.
[60] It was approximately one minute from the time the accused entered into the room until the stabbing.
[61] He and Molly pushed Mr. Wynne out of the unit.
[62] Jayko ran out looking for an ambulance.
[63] He identified the deceased, the accused and Molly by photos shown by Sergeant O’Brien.
[64] He was told Mr. Partridge had died.
[65] Mr. Attagutsiak drew a sketch of his unit including the location of the bathroom. He also drew a red circle of where the stabbing occurred.
[66] Sergeant O’Brien left a few times during the interview. Mr. Attagutsiak can be seen fidgeting and a few times. He had his head on his arm which was resting on the back of the chair.
[67] He admitted that he had one beer and two shots of whiskey that night.
[68] The officer indicated that he did not have signs of impairment by alcohol or drugs.
[69] He never told him he was tired or needed a break or that he had been up all night.
[70] He looked tired but nothing in the interview was impacted by his sleepiness.
[71] He did not conduct a search of Mr. Attagutsiak nor did he observe anyone else conducting a search.
[72] He was not interviewed again. He did not meet with him and the Crown and is not aware of whether there was a preliminary hearing.
[73] He did not have the benefit of the hallway video and had it been available he would have asked Mr. Attagutsiak about the inconsistencies with what he said and what was in the hallway video. The video shows Mr. Wynne following Molly into unit 239 without knocking and Mr. Wynne was wearing a black sweater.
[74] It was two hours after the stabbing and Sergeant O’Brien was only aware of the few details in the call for service which included what had happened, i.e. the stabbing of the deceased, the location and the suspect.
Discussion
[75] Firstly, the evidence of Mr. Attagutsiak is relevant as he was in the apartment when the stabbing of Mr. Partridge took place.
[76] Secondly, necessity has been made out as the declarant is no longer available to provide testimony. Defence concedes this requirement.
[77] Next, the court must determine threshold reliability which can be established through procedural and/or substantive reliability.
[78] Ultimate reliability as to whether the statement is true taking into account internal inconsistencies or frailties will be determined by the trier of fact, which in this case is the jury.
[79] I will first turn to procedural reliability which is determined where there are sufficient procedural safeguards or adequate substitutes in place to sufficiently test the truth of the statement.
[80] In this case, there are several indicia of procedural reliability:
the statement was video and audio-recorded in its entirety;
the interview was conducted at the police station, a place of solemnity;
Mr. Attagutsiak was sworn in with an affirmation to tell the truth, a warning about perjury charges for lying and confirmation that the evidence could be used to lay criminal charges; and
a document confirming this was signed by Mr. Attagutsiak.
[81] Within the interview, the court notes the following:
the declarant corrects the interviewing officer on several occasions throughout the interview;
he was sleeping before the interview began, but the video of the interview provides evidence of his ability to respond to the questions asked;
there is no discussion that he is providing evidence for an ulterior motive, such as a vendetta or to gain some personal advantage;
he does not exaggerate the accused’s conduct and in fact stated that initially “young guy was like not being aggressive or anything, like just talk a little bit too loud”; and
he does not appear that he has animus towards anyone involved in this incident that night, rather the only point of annoyance for Mr. Attagutsiak was the fact that the OPS had taken over his unit and he would not be able to return there that night.
[82] He self-reported drinking earlier that evening but there is nothing in the video that would suggest that his answers were impacted by impairment.
[83] Mr. Attagutsiak drank two cups of coffee with dexterity and did not spill any nor did he stumble in his chair. He did not slur his speech.
[84] Regarding the allegation that he was tired and that affected his ability to observe earlier events and recount them, the court notes he was sleeping at the beginning of the interview when Sergeant O'Brien entered in the room. Also, he was resting while the officer was out of the room, but his answers were free flowing and coherent.
[85] He is tired as he yawned and while Sergeant O’Brien was out of the interview room tries to rest. At times he is placing his head on his arm but other times fidgeting.
[86] He actually corrected Sergeant O’Brien when he said that Mr. Wynne was staying across the hall a “few months” and the declarant corrected him and said “couple of months”.
[87] He did not exaggerate. For example, he said when Mr. Wynne came into his unit he was not aggressive.
[88] Sergeant O’Brien who conducted the interview observed that Mr. Attagutsiak’s cadence and manner of speaking is similar to what he experienced when speaking to Inuk individuals from that area of Nunavut, i.e. Arctic Bay as well as people in his age group.
[89] At para. 63 of Khelawon, the Supreme Court stated that:
63 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. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.
[90] The hallway video is not a perfect substitute for cross-examination but it will certainly be available to the trier of fact to determine the statement’s ultimate reliability.
[91] The hallway video is objective evidence that will attenuate the hearsay dangers. Any inconsistencies between what was said by Mr. Attagutsiak can be highlighted through the hallway video.
[92] The hallway video shows that the accused was in the apartment 30 seconds before the stabbing occurred. This corroborates the declarant’s statement that the accused was in the apartment for “not even a minute” just before the stabbing occurred.
[93] The hallway video also shows Molly and the accused previously in the apartment of the declarant before the stabbing.
[94] He stated that a larger woman called Pia who was Inuk had been visiting his unit who left before the stabbing. This is confirmed by the hallway video.
[95] The declarant says that the accused was a “young guy” who appeared to be First Nations which Mr. Wynne admitted during his own videotaped statement.
[96] The accused confirmed he was staying at “Chrissy’s apartment”. The declarant had said that the accused was staying with another female in the unit across the hallway (unit 238). This was later confirmed to be Christianna Wabano.
[97] The hallway video confirms his evidence that Molly came into his unit followed by the accused. He was able to identify the photo of Molly. In his statement, the accused had confirmed that he had had a romantic relationship in the past with Molly.
[98] He confirms that the victim did not have a weapon and there are none visible on him when he leaves the apartment after the stabbing nor do police find any after the incident. A dust covered knife is found in the far corner of the room under a microwave in the opposite side of the area of attack.
[99] There are some inconsistences:
The declarant stated that he and Molly pushed the accused out of the room after the stabbing yet the hallway video shows Andrew Nicholson holding the arm of the accused guiding him backwards out of unit 239;
He says the accused was 5’6” or 5’7” and 140 to 150 lbs whereas the accused is 5’10” and 143 lbs;
He says he was wearing a sweater with black on top with white, red and grey whereas the hallway video shows the accused wearing an all black sweater with a grey logo and white t-shirt visible underneath;
The declarant gestured with his hands in the interview that the knife was approximately 8 inches or so whereas the hallway video shows it may be shorter but it is difficult to be exact; and
He says that Molly entered unit 239 first, then Mr. Wynne knocked on the door to the unit and she let him in whereas the hallway video shows he entered two or three seconds right after Molly without the door closing.
[100] I agree with the defence that the hallway video does not show what actually happened in unit 239.
[101] However, the hallway video does show Mr. Nicholson removing Mr. Wynne from 239 after the stabbing of Mr. Partridge and Mr. Wynne resisting. It provides other evidence for the trier of fact to consider when assessing the ultimate reliability of Mr. Attagutsiak.
[102] The court also has the benefit of Mr. Wynne’s statement that was admitted into evidence after it was found to be voluntary in June 2023.
[103] In that videotaped statement, in response to the interviewing officer’s question, Mr. Wynne appears to gesture an acknowledgement that he stabbed Mr. Partridge.
[104] Defence counsel argues that procedural reliability cannot be established as Mr. Attagutsiak cannot be cross examined on his inconsistences between his utterances in the police interview with Sergeant O’Brien and statements made in an earlier discussion with Constable Cross. Although Mr. Attagutsiak’s police interview was under oath and video recorded, defence counsel says those safeguards cannot compensate for the loss of the opportunity to cross-examine.
[105] The inconsistences are:
He did not mention some details to Sergeant O’Brien of what occurred before the stabbing;
Different lengths of the knife held by Mr. Wynne; he told Constable Cross the knife was perhaps 10-12 inches long but gestured to Sergeant O’Brien in the video a smaller knife which defence estimates was about 8 inches; and
Third, defence counsel says Mr. Attagutsiak was inconsistent in describing his relationship with or knowledge of the assailant. Mr. Attagutsiak told Constable Cross that he did not know the assailant’s name but recognized the assailant because the assailant was waiting outside the unit across from his. He then told Sergeant O’Brien he saw the assailant two or three times per week for a couple of months.
[106] The court finds that the discussion between Constable Cross and Mr. Attagutsiak was not a full interview and was not a comprehensive overview of the events of that evening. The court does not find that any serious inconsistencies which would undermine Mr. Attagutsiak’s key elements to his observations of that evening: that is, that Mr. Wynne came into his unit after Molly, words were spoken and he was in the bathroom when he saw Mr. Wynne stab Mr. Partridge.
[107] In any event, this conversation between Constable Cross and Mr. Attagutsiak was introduced in this pretrial motion as a narrative and not for the truth of its contents.
[108] Consideration will be given at the trial proper whether this conversation should again be admitted for the purpose of a narrative.
[109] In summary, I have determined that procedural reliability has been established as there are adequate substitutes for testing the evidence given that Mr. Attagutsiak will not be examined in court under oath and under the scrutiny of contemporaneous cross-examination.
[110] Also, I note at para. 38 of R. v. SBS, 2022 ONSC 1075, where Justice Vallee stated that “[t]he inconsistencies illustrated by the defence are relevant; however, they must be considered in the context of all of the evidence which the court does not yet have. They go to the question of ultimate reliability which is determined after all of the evidence has been presented at trial.”
[111] I find that the following substitutes will provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement:
hallway video;
evidence of Mr. Nicholson who pulled Mr. Wynne from unit 239 as he was resisting this maneuver;
Mr. Wynne’s statement to the police where he acknowledges with body language that he stabbed Mr. Partridge;
Photos of unit 239 showing the location of the blood and whether that lines up with Mr. Attagutsiak’s evidence in his statement; and
The location of the bathroom in unit 239 in one of the photos filed as evidence and the drawing sketched by the declarant show where Mr. Attagutsiak was when the stabbing occurred.
[112] The jury would also be able to observe Mr. Attagutsiak’s demeanor and how he answered questions in the video statement.
[113] The procedural reliability markers here overcome hearsay dangers so that the trier of fact can rationally evaluate the accuracy of the hearsay when it comes to ultimately decide the ultimate reliability.
[114] A few words regarding R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308, where the trial judge dismissed the Crown’s request to admit statements from a co-conspirator who provided two police statements implicating the accused but refused to testify at trial.
[115] The declarant was a Vetrovec witness and the two statements had significant internal and external inconsistencies. As a Vetrovec witness, his reliability and credibility “fell under suspicion for a variety of reasons”: at para 19. In addition, the declarant has serious mental illness issues (including schizophrenia and bipolar disorder), a lengthy criminal record including crimes of dishonesty, was a long-time drug abuser and finally he was an accomplice that provided the second statement on the understanding that it could result in a lesser charge for which he would receive a lesser sentence.
[116] The Ontario Court of Appeal case in Mohamed upheld the trial decision which declined to admit statements.
[117] At para. 47 the Court found:
[47] Second, the trial judge made this comment after noting, correctly, that some form of cross-examination of the declarant is usually required to provide threshold procedural reliability in the case of a recanting witness. He was, therefore, correct in law to pay close attention to the absence of cross‑examination. This is particularly so, given the inconsistencies in A.A.’s statements. Those inconsistencies would have provided fertile ground for cross-examination. The trial judge did not give those inconsistencies undue emphasis. He was entitled to remain unpersuaded that oaths, cautions, and video-recordings could, in this case, overcome the gap left by the absence of any form of defence cross-examination. [Citations omitted.]
[118] Mr. Attagutsiak is remarkably different from the declarant in Mohamed. He is an individual who told his evidence in a matter of fact manner with no apparent ulterior motive, there were no significant internal and external inconsistences and he has no criminal record.
[119] I agree that just because there is no apparent motive to fabricate does not mean that a motive does not exist.
[120] I find that the statement is admissible as it is procedurally reliable.
[121] In summary, I have determined that procedural reliability has been established as there are adequate substitutes for testing the evidence given that Mr. Attagutsiak will not be examined in court under oath and under the scrutiny of contemporaneous cross-examination.
[122] Given that I have found that the statement is admissible as it is procedurally reliable, I need not consider whether the substantive reliability threshold has been made out.
[123] As a gatekeeper of the evidence, I retain my judicial discretion to refuse to admit the statement if the prejudicial effect outweighs the probative value.
[124] A trial is a truth-seeking process that must always ensure that the accused has a fair trial and is able to make full answer and defence.
[125] Even where evidence is relevant, material, and admissible, the court retains a discretionary ability to exclude evidence where the probative value of the evidence is exceeded by its prejudicial effect or where necessary to ensure trial fairness. The discretionary power derives from both the common law and s. 24(1) of the Charter. The common-law power is protected under s. 11(d) of the Charter which protects the right to a fair hearing.
[126] The law is primarily inclusionary and will tend to admit all evidence that is logically probative of some fact in issue, subject to the rules of exclusion and exception.
[127] The discretionary power allows for a cost-benefit analysis to determine if the value of the evidence to determine the case correctly is worthwhile of the effort and time.
[128] In a jury setting, the judge must be very careful to only permit evidence that is worthy of jury consideration.
[129] I have considered the probative value of this evidence and assessing its tendency to prove a fact in issue, i.e. the circumstances of the stabbing of Mr. Partridge.
[130] The prejudicial effect may be that the jury may use this evidence improperly.
[131] Defence raises the concern that Molly, possibly the only other eye witness to the stabbing is unlikely to be available to testify given her current personal circumstances.
[132] The defence argues that there is prejudicial effect as the trier of fact may over rely on Mr. Attagutsiak’s statement which is the only “eye witness” evidence.
[133] However, as discussed above, there are other sources of evidence that the trier of fact can rely on to determine the ultimate reliability of Mr. Attagutsiak’s statement.
[134] In addition, although Ms. Wabano and Mr. Nicholson will not be called by the Crown, they have attended this court on two occasions pursuant to their subpoenas. They have been directed by this court to return on October 10, 2023. The defence has the option of calling them. They were both present in the vicinity during the evening of the stabbing and can provide their accounts of their observations that evening.
[135] In fact, Mr. Nicholson was present immediately after the stabbing as he dragged Mr. Wynne from unit 239.
[136] Also, this concern of over reliance by the jury on Mr. Attagutsiak’s statement can be addressed by mid trial and final instructions.
[137] In balancing the probative value against the prejudicial effect, I have regard to the importance of this evidence that provides some direct evidence to the circumstances surrounding the stabbing. Limiting instructions to the jury will alleviate any possible misuse of this evidence.
[138] I find that the prejudicial effect of the admission of Mr. Attagutsiak’s statement does not outweigh its probative value.
[139] Accordingly, the video recorded statement of Mr. Attagutsiak dated January 22, 2022 will be admitted into evidence.
Justice Adriana Doyle
Released: September 28, 2023
COURT FILE NO.: 22-M13830
DATE: 2023/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: His Majesty the King
AND
Devon Wynne, Accused
BEFORE: Justice A. Doyle
COUNSEL: Julian Daller and David Rodgers, Counsel for the Crown
Joseph Addelman and Samantha Robinson, Counsel for the Accused
ENDORSEMENT
Doyle J.
Released: September 28, 2023