Court File and Parties

Court File No.: CR-19-4753 Date: 2024-02-26 Superior Court of Justice - Ontario

Re: R. v. Dennis Frail and Ana Maglicic

Before: The Honourable Justice M. Bordin

Counsel: H. Limheng, Counsel for the Crown J. Bothwell, Counsel for D. Frail M. Evans, Counsel for A. Maglicic

Heard: February 23, 2024

Reasons on Admissibility of Prior Inconsistent Statement

[1] Dennis Frail and Ana Maglicic are charged that on or about August 7, 2018 they committed an aggravated assault upon Lindsay Patterson. Carrie Leveille is a witness to the events in issue.

[2] Also present on the evening in question was Terry, Ms. Leveille’s then 18-year-old son and his girlfriend Erica Sherman, who was also Ms. Maglicic’s daughter.

[3] At trial, Ms. Leveille testified in part that the defendants did not lay hands on Ms. Patterson and that they did not kick or punch her. Instead, Erica and Ms. Patterson were pushing each other, and Ms. Patterson fell to the ground and hit her face on the sidewalk.

[4] Ms. Leveille gave a statement to a police officer. Permission was granted to cross-examine Ms. Leveille on her prior statement pursuant to s. 9(2) of the Canada Evidence Act. After the conclusion of Ms. Leveille’s evidence, the Crown brought an application to admit Ms. Leveille’s statement for the truth of its contents.

[5] In her statement, Ms. Leveille says that “The next thing you know Lindsay is on the ground curled up in a ball and everyone is pounding her” and, in response to the question, “Who did you see attacking Lindsay?”, she responds, “Erica’s mom and step dad. I don’t know there [sic] names. It was all three of them, everyone was just kicking and punching her.” It is these portions of the statement, which were not adopted by Ms. Leveille in her testimony, that the Crown seeks to admit for the truth of their contents.

[6] There is no dispute between the parties as to the leading cases or the principles to be applied.

[7] Tendered for the truth of its contents, Ms. Leveille’s statement is hearsay. Hearsay is presumptively inadmissible. The Crown bears the burden of establishing admissibility on a balance of probabilities.

[8] There are three primary concerns about the reliability of hearsay: (i) it is not subject to contemporaneous cross-examination; (ii) it is not given under oath; and (iii) the trier of fact does not have an opportunity to observe the declarant making the statement. All three of these criteria, together, go to the question of reliability: R. v. U.(F.J.), [1995] 3 S.C.R. 764, at para. 36.

[9] A useful summary of the principles on an application to admit an unadopted prior inconsistent statement of a witness is set out by the Ontario Court of Appeal in R. v. Youvarajah, 2011 ONCA 654, 107 O.R. (3d) 401:

[102] B.(K.G.) no doubt provides an appropriate starting point for gauging the admissibility for substantive use of a prior inconsistent statement of a non-accused witness.

[103] However, B.(K.G.), and the Supreme Court's subsequent decisions in R. v. U. (F.J.), supra, and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, all make it clear that the B.(K.G.)- recommended safeguards were never intended to create an exclusive category for the admissibility of prior inconsistent statements.

[10] The court in Youvarajah first considered R. v. B.(K.G.), [1993] 1 S.C.R. 740:

[107] In the case of a recanting witness, necessity arises because "the recanting witness holds the prior statement, and thus the relevant evidence, 'hostage'": B.(K.G.), at para. 110.

[108] As for reliability, Lamer C.J.C. noted, at para. 82, that "[t]he reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered".

[109] Because "the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial", Lamer C.J.C. concluded [at para. 82] that "additional indicia and guarantees of reliability to those outlined in Khan and Smith must thus be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantive evidence".

[111] Ultimately, Lamer C.J.C. formulated a revised rule containing three components that would provide sufficient guarantees of trustworthiness to warrant the admission of a prior inconsistent statement: (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation; (ii) the statement is videotaped in its entirety; and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement. See paras. 86-104.

[112] However, Lamer C.J.C. emphasized throughout his discussion that there could be other circumstantial guarantees of reliability that would suffice to render such statements substantively admissible. See, for example, paras. 96, 101 and 104.

[11] The court in Youvarajah then considered U.(F.J.):

[113] In the subsequent case of U.(F.J.), the recanting witness was available for cross-examination at trial but her statement was not videotaped, nor was it taken under oath and there was no warning. In that case, Lamer C.J.C. placed considerable reliance on the availability of the witness for cross-examination but also maintained the requirement for some additional indicia of reliability. In U.(F.J.), he found that indicium in the fact that the recanting witness's prior statement was strikingly similar to the accused's own statement.

[114] Importantly, Lamer C.J.C. emphasized, at para. 39 of U.(F.J.), that in certain particular circumstances a prior inconsistent statement could be admitted even in the absence of an oath and a video record, but not in the absence of cross-examination.

[12] Finally, the court in Youvarajah considered Khelawon:

[115] In Khelawon, an issue was raised concerning whether the "U.(F.J.)" exception could be extended to the facts of that case. At para. 45 of Khelawon, Charron J. went to some lengths to explain that "neither B.(K.G.) nor U.(F.J.) should be interpreted as creating categorical exceptions to the rule against hearsay based on fixed criteria". Rather, she indicated that these cases should be viewed as "provid[ing] guidance – not fixed categories – on the application of the principled case-by-case approach [to the admission of hearsay evidence] by identifying the relevant concerns and the factors to be considered in determining admissibility": Khelawon, at para. 45.

[116] Importantly, Charron J. noted, at para. 61 of Khelawon, that under the principled approach, the reliability requirement is aimed at identifying those cases where the central underlying concern about the inability to test hearsay evidence is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule.

[117] She also observed that the reliability requirement is usually met in two different ways. One way is to show that there is no real concern about whether the statement is true because of the circumstances in which it came about. Another way is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, truth and accuracy can nonetheless be sufficiently tested: Khelawon, at paras. 62 and 63.

[119] At para. 76 of Khelawon, Charron J. noted that the most important contextual factor in B.(K.G.) is the availability of the declarant for cross-examination. Accordingly, "[t]he admissibility inquiry into threshold reliability . . . is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence".

[120] Charron J. also noted, at para. 78, that even though the declarant was available for cross-examination in B.(K.G.), Lamer C.J.C. emphasized that where the hearsay evidence is a prior inconsistent statement, "the focus of the inquiry . . . is on the comparative reliability of the prior statement and the testimony offered at trial" and therefore "additional indicia and guarantees of reliability to those outlined in Khan and and Smith must be secured in order to bring the prior statement to a comparable standard of reliability": B.(K.G.), at para. 82.

[13] The defendants do not really contest that necessity has been established. These events occurred five and a half years ago. Ms. Leveille’s statement was taken within three to four hours of the events in issue. Further, it is clear from the evidence of Ms. Leveille that she has recanted with respect to whether the defendants were pounding on Ms. Patterson or kicking and punching her. In my view, this satisfies the necessity requirement.

[14] The central issue is whether reliability of the prior inconsistent statement has been established.

[15] It is common ground that at this stage I am to determine threshold reliability, not ultimate reliability. As set out by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35, 411 D.L.R. (4th) 491, at paragraphs 26 and 27:

Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).

[16] Procedural reliability and substantive reliability afford two routes to the same destination – threshold reliability; they are not mutually exclusive: R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, para. 115. Threshold reliability may be established on the basis of either procedural or substantive reliability, or a combination of both.

[17] The hearsay dangers here are Ms. Leveille’s perception, narration and sincerity. Ms. Leveille’s perception is in issue because the evidence from Ms. Leveille is that she was drunk and had been drinking all night, both before the incident, and in the hour or two between the incident and her interview with Officer Zsoldos. For his part, Officer Zsoldos acknowledged that Ms. Leveille said she had been drinking but he did not think it had interfered with her ability to give a statement.

[18] Similarly, narration is in issue because Ms. Leveille had been drinking. Narration is also in issue because the statement was not recorded by video or audio recording. The statement itself is brief. Officer Zsoldos reattended at the scene at 2:29 a.m. and he took a statement from Ms. Leveille. The statement was completed at 3:17 a.m. No statements appear to have been taken from anyone else present during the incident. There is no explanation for why it took 45 minutes to obtain a half-page statement. Officer Zsoldos testified that he tries to take statements from witnesses verbatim but did not testify that this statement was taken verbatim. The statement itself reads like short snippets of a longer story. It contains at least one apparent error – the sentence “They keep calling her so I called the cops” does not make sense.

[19] The ideal indicia of reliability set out in B.(K.G.) of a fully video recorded statement, an oath or solemn affirmation, a warning as to the existence of sanctions, and the significance of the oath or affirmation are not present in this case. Cases since B.(K.G.) have confirmed that these ideal indicia of reliability do not all have to be present for a prior inconsistent statement to be admissible and that cross-examination at trial is a significant procedural guarantee of reliability.

[20] The gravest danger associated with hearsay evidence simply does not exist in the case of prior inconsistent statements because the witness is available for cross-examination: U.(F.J.), at para. 34.

[21] The Crown urges that threshold reliability can be overcome in every case simply on the basis that the declarant is available for cross-examination. It seems to me that cannot be correct. If that were so, then as long as the declarant were available to be cross-examined, the prior inconsistent statement would always be admissible. Such an approach is not borne out by the case law.

[22] The dangers of and absence of an oath and absence of demeanour evidence, can be met through appropriate police procedures and occasionally appropriate substitutes can be found: U. (F.J.), at para. 34. Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement: U.(F.J.), at para. 32.

[23] Many cases, including the recent Ontario Court of Appeal decision in R. v. Shaw, 2024 ONCA 119, at paragraph 129, have confirmed that procedural guarantees of threshold reliability are not limited to circumstances existing at the time the hearsay statement at issue is made.

[24] To be admissible, a statement does not have to be video or audio recorded. However, because the statement was not video or audio recorded, I cannot assess the demeanor of Ms. Leveille or her mental state when she made the statement. This is of greater significance in this case because of the evidence that the statement was taken between 2:29 and 3:17 a.m. after Ms. Leveille had been drinking for hours and by her own evidence was drunk. Further, Officer Zsoldos’ evidence acknowledges that Ms. Leveille had been drinking. Other indicia of reliability are therefore required.

[25] It is acknowledged by the Crown that no B.(K.G.) type warning was given, and the statement was not made under oath. An oath is not a requirement for admissibility if there are other guarantees of trustworthiness. The Crown says that the fact that the statement was made to a police officer in uniform and that Ms. Leveille signed the duty book after having read the statement or had it read to her, is a sufficient substitute for an oath or warning. If that were so, then so long as a statement was made to an officer in uniform in these circumstances, there would be no need for the ideal indicia of reliability or any other indicia of reliability. In any event, in these circumstances, I cannot conclude this provides sufficient indicia of reliability.

[26] There is no evidence that Ms. Leveille gave any indication of understanding the import and effect of a false statement. This is exacerbated by the evidence of alcohol consumption. There was no evidence of urgency that required the statement to be taken at that time. There was no reason offered for why the statement was not taken the next day after Ms. Leveille had slept and was no longer intoxicated to any degree. Other than an admission that she tried to tell the police officer the truth, there was no evidence that Ms. Leveille understood the risks of a false statement or that they were brought home to her in any way.

[27] Ms. Leveille’s sincerity is also in issue. There is evidence to indicate she may have had a reason to suggest that someone else had assaulted Ms. Patterson. In her evidence, Ms. Leveille did not want to say who was “pounding” Ms. Patterson. At one point, Ms. Leveille indicated that person was deceased. There is evidence that Ms. Leveille’s son, Terry, is deceased. The evidence is that Terry was present during the incident. Ms. Leveille’s evidence also suggested that Ms. Patterson was blaming her for her injuries. Ms. Leveille’s interest or motivation at the time of her statement is a factor relevant to substantive reliability, but it is just one factor in the substantive reliability analysis. All circumstances surrounding the making of the statement must be considered: Shaw, at para. 125.

[28] There is little evidence of the circumstances surrounding the taking of Ms. Leveille’s statement. Only two questions are recorded in the statement. I cannot tell what other questions she was asked or what Ms. Leveille was told about why she was being interviewed. There is no evidence as to how long it took to elicit this very brief statement. The Crown concedes there is no evidence one way or the other of voluntariness. The officer could not even remember if Ms. Leveille was seated in the cruiser or standing outside his window. When asked in-chief why she would lie to the police, Ms. Leveille said she thought she would be in trouble. She said she signed the officer’s duty book so she could “pass out”.

[29] The Crown also points to the proximity in time of the statement to the events as a badge of reliability. But as noted, proximity here may work against reliability given that Ms. Leveille had been drinking and testified that she was drunk.

[30] The Crown submits I can compare Ms. Leveille’s statement to Ms. Patterson’s evidence at trial and that there is similarity between the evidence of Ms. Patterson, who testified that she was in a fetal position and was “turtling” on the ground and was kicked by the defendants, and Ms. Leveille’s statement that “Lindsay is on the ground curled up in a ball and everyone is pounding her” and that it was “Erica’s mom and step dad” who were attacking Lindsay. However, Ms. Patterson’s evidence was given at trial five and a half years after Ms. Leveille’s statement was made. I have no evidence that Ms. Patterson did not review the statement prior to testifying.

[31] I acknowledge, as argued by the Crown, that Ms. Leveille adopted portions of the statement as relatively accurate. However, those portions of the statement contradict Ms. Patterson’s evidence. For example, Ms. Patterson denied interacting with Erica and Terry in the backyard and before going into the front yard. On the other hand, the portion of the statement adopted by Ms. Leveille says that both Terry and Erica were in the backyard with Ms. Patterson. This calls into question the appropriateness of comparing Ms. Leveille’s statement to Ms. Patterson’s evidence as evidence of substantive reliability.

[32] There is no other contemporaneous admissible statement by which to make a comparison to Ms. Leveille’s statement.

[33] Ms. Leveille’s statement also contains contradictory statements on the key issue. In her statement, Ms. Leveille says that “everyone” was pounding and kicking and punching Ms. Patterson and says that it was the defendants who were attacking her. The evidence is that in addition to the defendants, their daughter Erica was present, as was Ms. Leveille’s son, Terry. They would be included in the term “everyone”.

[34] The Crown referred me to paragraph 132 in Shaw where the Court of Appeal states:

The ultimate concern in the threshold reliability analysis is whether the circumstances of the statement, including cross-examination at trial, will give the trier of fact sufficient tools to rationally assess its ultimate reliability and credibility. The substantive guarantees of reliability were equivocal in this case, but not as one-sided as the trial judge’s reasons suggest. However, Mr. Poyser’s presence as a witness at trial subject to cross-examination was a sufficient procedural guarantee of reliability in the circumstances to permit the jury to rationally assess factors relevant to his credibility and reliability, including perception, memory, narration, and sincerity. I conclude that threshold reliability was met to permit the jury to use the statement for the truth of its contents (subject, of course, to the jury’s assessment of its ultimate reliability).

[35] I do not view either the substantive or procedural indicia of reliability as equivocal. To the extent they exist, they are nominal. Further, it is the Crown, not the defence that seeks the admission of the statement. Therefore, the Court of Appeal’s comments in paragraph 134 of Shaw are applicable:

It is well-established that, where necessary in order to ensure a fair trial, a court may relax the rules of evidence in favour of admitting defence-led evidence. In the context of defence-led evidence, while a showing of some reliability must be satisfied, the strict standard applied to evidence led by the Crown to incriminate an accused does not apply: Finta, at pp. 854-55; R. v. G.F. (1999), 132 C.C.C. (3d) 14 (Ont. C.A.), at p. 32; Williams, at p. 378; Pan, at paras. 54-70; Jama, at para. 155.

[36] I recognize that the availability of the declarant for cross-examination goes a long way to address the hearsay concerns. However, on the facts before me, it does not go far enough. The indicia of procedural and substantive reliability are not sufficient to admit Ms. Leveille’s statement. They do not put the trier of fact in a position to rationally evaluate the evidence or to assess the comparative reliability of the prior statement and the testimony offered at trial. The inherent trustworthiness of the prior statement cannot be assessed.

[37] Finally, given all these concerns with the prior statement, I would exercise my discretion to exclude the statement. Its probative value in the circumstances is low and is outweighed by its prejudicial effect.

M. Bordin J. Date: February 26, 2024