R v Auclair, 2025 ONSC 1646
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Ludmila Lucy Auclair
Defendant
F. Stephens and D. Portolese, for the Crown
A. Richter and J. Di Lorenzo, for the Defendant
Heard: September 3-26, 2024
ruling on crown hearsay application
LEIBOVICH J.
1I convicted Ms. Auclair, for reasons set out in R. v. Auclair, 2024 ONSC 6127, of second-degree murder. During the course of the trial, the Crown brought an application to have Mr. Noseworthy’s prior statements to the police admitted for the truth of their contents. The Crown was unable to secure the attendance of Mr. Noseworthy at trial. I dismissed the application with reasons to follow. These are those reasons.
Law and Analysis
2Hearsay 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, it is difficult for the trier of fact to assess its truth. In order for an out of court statement to be admissible, the court must be satisfied that the twin criteria of necessity and threshold reliability have been met on a balance of probabilities. Even when the burden has been met, the court retains a residual discretion to exclude the statements if their prejudicial effects outweigh their probative value.; R. v. Rowe, 2021 ONCA 684.
3For the purposes of the voir dire, the defence accepted that the necessity criteria had been met. The issue on the motion turned on whether the threshold reliability criteria had been met.
4With respect to threshold reliability, it 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; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 at paras. 26-28 and 30-32.
5In looking at procedural reliability, the courts have emphasized the importance of cross-examination as a procedural safeguard. As stated in Bradshaw at para. 28:
Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96). However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of a recanting witness at trial (B. (K.G.); R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R.
6And as stated by ACJO Fairburn in R. v. Rowe, 2021 ONCA 684 at para. 53:
I start with the observation that the availability of the declarant for cross-examination is widely considered the most important of the three procedural safeguards: R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, [1995] S.C.J. No. 82, at para. 39. The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement has been described as the "most powerful factor favouring admissibility": R. v. Couture, [2007] 2 S.C.R. 517, [2007] S.C.J. No. 28, 2007 SCC 28, at para. 92. The importance of the declarant's participation in court before the trier of fact was again reinforced in Youvarajah, at para. 35, where this factor was described as the "most important factor supporting the admissibility of a prior inconsistent statement of a non-accused witness for the truth of its contents". Indeed, as more recently noted in Bradshaw, at para. 28, "Some safeguards imposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence" (emphasis in the original).
7In looking at substantial reliability, the court in Bradshaw stated at para. 30 that “a hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929).”
8Corroborative evidence, if it exists, may also be used in the process of establishing substantive and threshold reliability. As explained by the Supreme Court of Canada in Bradshaw, to determine whether “corroborative evidence is of assistance in the substantive reliability inquiry”, 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.
9In this case, while the Crown’s application started by seeking to also admit Mr. Noseworthy’s two audio statements to the police, the focus of the application shifted and stayed on Mr. Nosworthy’s December 22, 2021, video-taped statement to the police, where Mr. Noseworthy was also issued a KGB caution. The two prior audio statements lacked adequate substitutes for testing truth and accuracy and did not meet the test for procedural reliability. The Crown’s submissions regarding substantive reliability were focused on the December 22, 2021, statement and not the earlier statements. Therefore, the two prior statements are not admissible.
10The Crown’s submissions regarding the admissibility of the December 22, 2021 changed during the course of the oral argument. The Crown conceded that parts of Mr. Noseworthy’s statement to the police were not corroborated, and some parts raised other concerns. However, the Crown submitted that the following two points in the statement were sufficiently corroborated such that cross-examination would add little:
Mr. Noseworthy stated that he provided Ms. Auclair with fentanyl and she told him that she had cancer; and
Mr. Noseworthy’s comments that his life at the time of the murder was in Toronto.
11The Crown submits that I can admit these parts of the December 22, 2021, statement but exclude the rest of the statement. The defence disagrees. The defence submits that once admitted, a trier of fact can accept all, part or none of the statement, but at the threshold admissibility stage, the statement is either all admitted or not.
12I agree with the defence. Leaving aside issues of double hearsay or relevance, at this stage, when looking at threshold reliability, the entire statement either meets that threshold or doesn’t. I do not see how part of a statement could meet the threshold but the remainder cannot. In my view, such an approach would be even more prejudicial to the defence as the proffered statement would then be cleansed of all its warts, making it even more difficult to challenge the witness’ evidence.
13In my view, I must look at the December 22, 2021, statement as a whole to see if it meets the threshold test of reliability. In my view, it does not. While yes, some parts of the statement can be corroborated, there are other parts that cannot and as the Crown notes, there are other parts that raises concerns. In my view, it would be fundamentally unfair to the defence to admit the statement in the absence of the defence’s ability to cross-examine the witness.
14The court in Bradshaw at para. 31, explained the standard for substantive reliability and again references how it connects to the importance of cross-examination:
While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, 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" (Khelawon, at para. 49).
15The high standard is not met in this case. The application is dismissed.
The Honourable Justice H. Leibovich
Date Released: March 13, 2025