His Majesty The King v. Tyler Wirag, 2024 ONSC 4215
COURT FILE NO.: CR-20-50000419-0000 DATE: 20240731
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TYLER WIRAG
Respondent
Counsel: Amanda Hauk, for the Respondent W. Glen Orr, Q.C., for the Applicant
HEARD: May 17 and July 11, 2024
B. P. O’MARRA J.
NOTICE: THERE IS AN ORDER THAT THERE BE NO PUBLICATION OR TRANSMISSION OF THIS PRETRIAL PROCEEDING UNTIL THE JURY IS SEQUESTERED, OR THE TRIAL IS OTHERWISE CONCLUDED.
RULING ON HEARSAY
OVERVIEW
[1] On March 14, 2020, the respondent was involved in a single vehicle accident. He then fled the scene on foot. Members of Toronto Fire Service (TFS) were directed to the accident scene very shortly after it occurred. They observed a handgun on the floor of the driver’s seat. This information was related to members of Toronto Police Service (TPS) when they arrived on the scene. The handgun was seized by a member of TPS. The gun was loaded.
[2] The respondent was found walking nearby by TPS. He exhibited signs of injury and intoxication. He was arrested for impaired operation and possession of the loaded handgun. The vehicle was seized by TPS and towed to a police facility.
[3] DC Soucy of TPS was involved in the execution of a search warrant on the vehicle on March 17, 2020. Forensic evidence from the vehicle was linked to the respondent. DC Soucy was also involved in conveying certain items related to the investigation to the Centre of Forensic Science (CFS). He had no dealings or interactions with the respondent.
[4] On March 3, 2023, the Crown received formal notification that DC Soucy was on a medical leave and was restricted from participating in any work-related activities, including testifying. The trial is scheduled to proceed in September 2024.
THE APPLICATION
[5] The Crown has applied to have the investigative notes and other records made by DC Soucy admitted as evidence at trial as a principled exception to the hearsay rule. Based on a medical report filed and sealed as an exhibit on this application the defence have conceded necessity. The defence is opposed to the application related to the issue of threshold reliability.
THE SPECIFIC INVOLVEMENT OF DC SOUCY IN THE INVESTIGATION
[6] A useful summary of the involvement of DC Soucy is set out in paras. 11 – 24 inclusive of the applicant’s factum:
On March 17, 2020, at 15:55 DC Soucy #8583, executed a search warrant on the GMC pickup truck OLP AY89699 at 2050 Jane Street.
He collected DNA and fingerprints from the vehicle.
He took contemporaneous notes documenting this process in his police issued memo book. He also documented this process by taking photographs.
DC Soucy #8583 observed 2 areas of red staining on the driver’s airbag. He seized the driver’s airbag. He labeled the driver’s airbag exhibit #1 and placed it into a transport box. The transport box had a unique identifier #2400962 and a property receipt number with a unique identifier #P6653533. At 18:45:35 he submitted the exhibit into the Divisional Management Locker System, [DLSM] Locker #3 for courier pick-up.
On April 3, 2020, DC Soucy #8583 made a request to Centre of Forensic Science to accept the driver’s airbag for forensic testing and analysis. To facilitate this, he requested that the Property Bureau return the airbag to FIS. At 6:16:23, DC Soucy #8583 retrieved exhibit #1, with unique identifier #P6653533 from DLMS, Locker #2. At 8:15 he submitted exhibit #1 to Locker #1 at the Centre of Forensic Science.
The Centre for Forensic Science refused to accept the airbag for forensic testing and examination. On April 22, 2020, DC Soucy #8583 made a request to the Centre for Forensic Science to have the airbag swabbed. He requested exhibit #1, with unique identifier #P6653533 was returned to FIS.
On April 27, 2020, at 9:07:09 exhibit #1, with unique identifier #P6653533 was returned to FIS.
At 23:33:40 on April 27, 2020, DC Soucy #8583 retrieved exhibit #1, with unique identifier #P6653533 from DLSM, Locker #3.
At 23:35 he swabbed exhibit #1, specifically the reddish areas on the surface of the airbag. He labeled the swab exhibit 1A and placed it into a transport box. The transport box had a unique identifier #2406054 and a property receipt number with a unique identifier #P6689399.
At 23:45:04 he re-submitted the airbag, exhibit 1with unique identifier #P6653533 into the DLMS, Locker #3 for courier pickup.
The transport box, with unique identifier #2406054, containing Exhibit 1A was transported to the Centre for Forensic Science for analysis.
On June 17, 2020, the Centre for Forensic Science prepared a report indicating that “Ex. 1A 2406054 swab of airbag (ABS) from “AY89699 GMC Sierra” tested positive for blood, belonged to a male, and was suitable for comparison.
The police subsequently obtained a DNA warrant for Tyler Wirag’s blood to conduct a comparison sample to the DNA profile obtained from the swab (exhibit 1A). This warrant was executed on July 22, 2020.
On August 26, 2020, the Centre for Forensic Science prepared a report indicating that the comparison sample from Tyler Wirag taken on July 22, 2020, could not be excluded as the source of the male DNA profile from the swab (exhibit 1A) of the blood taken from the airbag from GMCA pickup truck OLP AY89699. It further stated that the DNA results are estimated to be greater than one trillion times more likely to originate from Tyler Wirag than to originate from an unknown person unrelated to him.
THE LAW
[7] The starting point for consideration of the admissibility of this hearsay evidence is R. v. Khelawon, 2006 SCC 57 at paras. 35 and 47-49. The principled exception to the general rule barring hearsay for the truth of its contents is based on necessity and reliability. Those criteria must be proven on a balance of probabilities. There is a discretion to exclude evidence that meets the criteria if the prejudicial effect outweighs its probative value.
[8] The issue of necessity has been conceded on this application. The contentious issue relates to reliability. That aspect can be established by either procedural reliability or substantive reliability. They are not mutually exclusive: Khelawon at paras. 2, 61 and 66. The Crown on this application relies on indicia of substantive reliability.
[9] Substantive reliability is established where there is “no real concern about whether the statement is true or not because of the circumstances in which it came about”: Khelawon at para. 62. Cross examination of the declarant would add little because there is no need to test the accuracy of the statement.
[10] In assessing substantive reliability, the trial judge must rule out any plausible alternate explanations for the contents of the statement on a balance of probabilities: R. v. Bradshaw, 2017 SCC 35 at paras. 48-49.
[11] The trial judge should consider the factors that show whether the statement is accurate, including the following from Bradshaw:
[53] Under the Khan, Starr and Smith line of cases, various factors may be considered in evaluating whether a hearsay statement by a deceased declarant was made in circumstances that substantially negate the possibility of inaccuracy or fabrication. These include the presence or absence of any motive by the declarant to lie, the relationship between the declarant and the narrator of the statement, the possibility that the declarant was mistaken, and the state of mind of the declarant at the time the statement was made. As well, the contents of a declarant’s statement may be used for some purposes in determining the admissibility of the statement: R. v. Blackman, [2006] OJ No. 5041 (OCA) at para.53 aff’d 2008 SCC 37 at para. 53; R. v. Khan, [1990] 2 SCR 531 at para. 547; Khelawon at paras. 94-100.
[12] In Bradshaw at paras. 45-47, the court set out the circumstances where corroborative evidence can be considered to establish threshold reliability:
- The corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statements; and
- The corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement.
NECESSITY AND RELIABILITY
[13] Since necessity is conceded, I will proceed to address reliability.
[14] The specific and limited role of DC Soucy in this investigation is significant. He was a member of the forensic squad. His role was to observe, seize and record items of potential evidential relevance. He had no direct involvement with the respondent or the officers who did deal with the respondent. He made contemporaneous notes and took photographs of the various locations and items he dealt with. The records he created assigned identification numbers for reference by the forensic staff at the CFS. His notes, photographs, and other records he made in the course of his involvement have been fully disclosed to the defence in a complete and timely way.
[15] The notes and records he made would have been available at trial for him to refresh his memory. If he were to testify, he could be cross examined on any and all of those notes and records. He would have no discernable motive to be untruthful in the making of his notes and records. His notes and records are substantially corroborated by photos that he took, and which have been disclosed.
[16] The notes and records he took in the course of his involvement were important but also routine for an officer attached to the forensic squad. Cross examination of this officer in these circumstances would add little or nothing to an assessment of their reliability.
CONCLUSION
[17] I am satisfied for these reasons that both necessity and threshold reliability have been established in regard to the notes, records, and photos taken by DC Soucy. This evidence is admissible as a principled exception to the hearsay rule as proof of their content. The issue of ultimate reliability will be for the trier of fact to assess in light of all the evidence at trial.
[18] The application is allowed.
B.P. O’Marra J.
Released: July 31, 2024
COURT FILE NO.: CR-20-50000419-0000 DATE: 20240731
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING Respondent – and – TYLER WIRAG Applicant
RULING ON HEARSAY B. P. O’MARRA J.
Released: July 31, 2024