[October 13, 2021] Principled Exception to Hearsay: Possible Independent Motivation of Declarant [B.P. O'Marra J.]
AUTHOR’S NOTE:The principled exception to hearsay is all about what you can prove about someone's utterances when they are not available for direct examination for one reason or another. However, sometimes the significant possibility of motivations impacting the statement of the declarant can be sufficient to suppress the entry of such a statement. Here, the possibility of the declarant coming forward to get a benefit in terms of her own judicial interim release was a live possibility. Coupled with her record for crimes of dishonesty this was sufficient to exclude her identification evidence in a homicide. The case also provides a pithy one-paragraph summary of the test on principled exception.
 The respondent is charged with second degree murder related to a shooting incident on November 18, 2018. Tanya Barton provided an affirmed, videotaped statement to the police on November 20, 2018 that implicated the respondent in the shooting. She passed away on April 2, 2019 as a result of a drug overdose. The Crown applied to have her out of court statement admitted at the respondent’s trial for the truth of its contents.
 On September 15, 2021, I dismissed the application. These are my reasons.
Circumstances of the Statement
 On November 18, 2018, members of the Toronto Police Service (TPS) responded to a report of a shooting in a community housing building. The deceased victim, Cardinal Licorish, was found on the 5th floor stairwell. He had sustained at least three gunshot wounds. At the scene, the police recovered items including spent cartridge casings, a digital scale, a wad of cash and 28.4 grams of cocaine.
 Tristan Braithwaite was with the victim at the time of the shooting. He told police that the victim was involved in the drug trade and was at that location for a drug transaction. He said there was a brief altercation with two unknown males in the stairwell just before the shooting. He fled down the stairs and did not see who shot the victim. He later identified the respondent and J.C. (a young person) as the two males involved in the altercation.
 Tanya Barton gave an affirmed and videotaped statement to the police. She said that she had seen the respondent (known to her as Chris) and J.C. (known to her as Babyface Tony) in the building that day. She said that she entered the stairwell and heard the voice of the victim (known to her as Brian or Gucci). She next heard gunshots and then saw “Chris” rush past her with a gun in his hand. She knew that all three men were involved in the drug trade.
 Mr. Braithwaite and Ms. Barton later identified the two males that they had seen in the hallway on the security video for the building. One was in a red jacket and the other in a black jacket. The two males on the video can be seen touching a door as they exited the building. Fingerprints from that door matched the respondent and J.C.
 Detective Dave Dickinson of the TPS was one of the lead officers on this case. His first involvement was on the day of the homicide. On November 20, 2018, he received information that Tanya Barton was in custody on an unrelated matter and had information about the homicide. Before meeting her, his understanding was that she had actually seen the shooting. She was in custody for an allegation of theft on the basis of either a bench warrant or a warrant in the first instance. Detective Dickinson testified that he did not know what her bail status was. He understood that she would meet with him and his partner, Detective Paul Worden (since retired), after her court appearance to provide a statement. Later that afternoon she was released on her own recognizance as Detectives Dickinson and Worden sat in the courtroom. Detective Dickinson had been told by an assistant Crown attorney that Ms. Barton would be released.
 Ms. Barton had an extensive criminal record that I will refer to later in some detail. The Crown package for her current charge included a recommendation by the police that her release on bail should be opposed. That is obviously not binding on the Crown. There was no evidence on this application as to whether her speedy release on her own recognizance was linked to her anticipated assistance in the homicide investigation.
 ... The statement was recorded on video. It started at 2:54 p.m. and concluded at 3:46 p.m. Ms. Barton was affirmed at the outset by a commissioner for the taking of oaths after being cautioned about the consequences of providing false information to the police. In the course of the interview she was asked to view brief clips from video surveillance in areas close to where the shooting had occurred. She identified certain persons from those video excerpts including the respondent. The police were unsuccessful in arranging a further interview with Ms. Barton to have her view an appropriate photo array to see if she recognized anyone.... She could not be contacted or located despite efforts by the police.
 Ms. Barton had an extensive criminal record that commenced in 1998 ...
- Crimes of dishonesty x12 (including thefts and break and enters and a sentence of two years for break and enter in 2012);
- Breaches of court orders x19 (including failing to appear, breach of a conditional sentence order and breaches of recognizance and probation);
- Public mischief and obstruct police x4; ...
 The principled exception to the admission of hearsay for the truth of its contents rests on consideration of necessity and threshold reliability. The onus is on the proponent, on a balance of probabilities.... The necessity of the hearsay evidence is established since the witness is deceased.
 Admissibility relates to threshold reliability and not to ultimate reliability. The issue is whether the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness: R. v. Khelawon, 2006 SCC 57, 274 D.L.R. (4th) 385, at paras. 47-51 .. The issue then is whether threshold reliability has been established. Threshold reliability has been established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulties of testing it. These dangers can be overcome by showing that (1) there are adequate substitutes for testing the truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Substantive reliability is established when the statement is unlikely to change under cross-examination. To determine whether substantive reliability is established, the trial judge can consider the circumstances in which the statement was made and evidence (if any) that corroborates or conflicts with the statement. A trial judge can only rely on corroborative evidence to establish substantive reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. The judge must be satisfied that the statement is so reliable that contemporaneous cross-examination would add little, if anything, to the process: R. v. Bradshaw, at paras. 4, 27, 31 and 54.
 In terms of procedural reliability, the declarant’s statement was recorded in its entirety. She affirmed that she would tell the truth after being cautioned about misleading or untruthful information. The police did not ask leading questions.
 In terms of substantive reliability, the most significant impediments relate to her custodial status, her criminal record and whether she had a motive to provide information to the police to obtain her release. The officers who interviewed her have denied that there was any discussion of her bail status or that they intervened on her behalf to have her released. I have no reason to doubt that evidence. However, based on her criminal record and the recommendation of the police who had arrested her for the theft charge, she initially faced at least a show cause hearing and a denial of bail. In very short order and with no further explanation she went from there to a release on her own recognizance. She was then escorted across the street to provide her statement. She had made it known when she was in custody that day that she had important information about the homicide. Detective Dickinson had indirect information before he first met her that she had actually witnessed the shooting. That was not what she later told him. It may well be that she was not offered early release by the Crown or any other police officer in return for her anticipated assistance on the homicide investigation. Even with her extensive record, and the initial position to oppose bail, it would not be unreasonable or improper for the Crown to agree to her release on the relatively minor charge of theft so that she would be free to provide a statement on the homicide. However, it must also be said that she would reasonably believe that she could be released that day by offering to provide a statement even if no person in authority made any promises to her. She would have a motive and personal interest in offering to assist the police in this matter. [Emphasis by PM]
 The status of the declarant as a witness who can be cross-examined on a prior inconsistent out-of-court statement or on their motives for making the statement has been described as “the most powerful factor favouring admissibility”: see R. v. Couture, 2007 SCC 28, 280 DLR (4th) 577, at para 95; R. v. Rowe, 2021 ONCA 684, at para 53. If the statement of the deceased declarant were to be admitted at this trial, the defence would have no means to explore this important issue in cross-examination. In my view this would seriously impair the respondent’s right to make full answer and defence. It cannot be said that the statement is so reliable that contemporaneous cross-examination would add but little to the process.
 The application is dismissed.
[October 12, 2021] Prior Disreputable Conduct Evidence: Co-Accused Use [Anne London-Weinstein J.]
AUTHOR’S NOTE: Prior disreputable conduct evidence is usually barred from use by the Crown. Propensity reasoning is barred for triers of fact. However, in co-accused trials, this prohibition does not necessarily apply with respect to the co-accused using the evidence to support their own acquittal (propensity against the other accused is still barred for the Crown). In his way, the evidence can be used by the trier of fact. This can make for a messy trial with loads of prejudice, but some of that can be alleviated by proceeding judge alone. Here, a prior record of domestic violence was weaponised by co-accused counsel to make a propensity-based pitch for acquittal suggesting that the co-accused acted alone. Watch your back defence counsel!
Introduction and Background
 Mr. Gill and Ms. Ronald are being tried a second time after being convicted in 2016 of first degree murder in the death of Mr. Gill’s late wife, Jagtar Gill. Ms. Gill’s body was bludgeoned and stabbed. It is the theory of the Crown that Mr. Gill and Ms. Ronald conspired together in the murder of Ms. Gill.
 On behalf of Mr. Gill, Mr. Harbic seeks to lead evidence to augment his defence that Ms. Ronald acted alone. Mr. Harbic proposes to call Ms. Ronald’s former spouse to testify regarding four occasions where Ms. Ronald is alleged to have tried to attack him with a knife. Mr. Harbic argues that the evidence is essential to his ability to make full answer and defence on behalf of Mr. Gill. The evidence advances his theory that Ms. Ronald was volatile, unpredictable and given to resort to knives when angered. The evidence provides some basis for the argument that Ms. Ronald may have confronted Ms. Gill on her own, become angry and attacked her with a knife.
 The four knife incidents are as follows:
- Sometime after the birth of their second child in 2004, Ms. Ronald and her husband became embroiled in a dispute regarding Mr. Ronald’s alcohol consumption with his friends. Ms. Ronald is purported to have grabbed a kitchen knife and threatened Mr. Ronald with the knife. He disarmed her of the knife.
- In 2008, when Mr. and Ms. Ronald were living in Fitzroy Harbour, a dispute arose regarding the slow progress being made in regard to house renovations. Ms. Ronald again is alleged to have seized a kitchen knife and threatened her husband with the knife.
- In 2012, another argument arose. Mr. Ronald left the kitchen where the spouses had been arguing and walked past the bottom of the stairs where his daughter was seated. When Ms. Ronald followed him with a knife in her hand, she saw her daughter and attempted to make light of the incident. She did not attack Mr. Ronald.
- In September 2013, Ms. Ronald discovered a used condom in a rental property and became angry, grabbing a kitchen knife. Mr. Ronald disarmed her however, he sustained a minor injury to his hand.
 On behalf of Ms. Ronald, Mr. Spratt argues that the evidence is of limited probative value and its admission will exact too great a prejudicial toll on the fair trial rights of Ms. Ronald to warrant reception into this trial....
 I have determined that the probative value of the evidence is not substantially outweighed by the prejudicial impact of the evidence and that the evidence is admissible for reasons explained further below.
 The guarantee of the ability to make full answer and defence is guaranteed by s.7 of the Charter which reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
 A co-accused’s right to make full answer and defence affords latitude which would not be available to the Crown. In R. v. Creighton, 1995 CanLII 138 (SCC),  S.C.J. No.30 both the accused and the co-accused, Crawford were charged with murder. Crawford made no statement to the police. He testified at trial and blamed Creighton, who did not testify. Counsel for Creighton cross-examined Crawford on his failure to give a statement to police. Counsel for Crawford criticized Creighton for his failure to testify in his closing address to the jury. The Crown would have been prohibited from commenting at all on an accused person asserting his right to remain silent.
 The Court discussed the appropriate course when the protected rights of two individuals come into conflict. See Creightonpara. 36. A balance must be achieved that fully respects the importance of both sets of rights....
 The proposed evidence supports the inferences for which Mr. Harbic seeks to use it. I do not agree that there is no basis to support the theory that Ms. Ronald acted alone, which is the theory of Mr. Gill’s defence. For example, Mr. Gill’s sister will testify she told her brother she would attend the home on the morning of the homicide. A phone was placed near Mrs. Gill prior to Mr. Gill leaving the home. Mr. Gill allowed his daughter and her cousin, who was also a child, to enter the house first and witness the gruesome brutality of the murder scene. He will testify he would not have exposed his child to such a macabre scene if he knew his wife’s murdered body was in the home. Mr. Gill’s position is that the sexual relationship between himself and Ms. Ronald had ended prior to the homicide. Police were unable to establish evidence to contradict that assertion, although I note there was frequent contact between them, by telephone, text and in person.
 I have found that the discreditable conduct evidence relates to Ms. Ronald, it is probative of a material issue in this trial, that being whether Ms. Ronald acted alone....
 Having found that the evidence is sufficiently probative to a material issue in this trial to justify admission, I turn to the resultant prejudice which Ms. Ronald will suffer. The risk of moral prejudice being engendered against Ms. Ronald is diminished by the fact that these incidents, while violent, pale in comparison to the index offence in this case.
 In terms of reasoning prejudice, the prohibited form of reasoning is not a complex one for a trial judge to understand. I will instruct myself that the proposed evidence can only be used by Mr. Gill to raise a doubt in his case and cannot be used in any fashion to inculpate Ms. Ronald. I have also considered that Mr. Ronald bears animus toward Ms. Ronald and I accept the submission from Mr. Spratt that the witness may be voluble and free wheeling in the manner in which he delivers his evidence. I will expect counsel to exercise control over the witness and I will intervene if it is necessary. This concern is greatly reduced in a judge alone trial.
 I will instruct myself that the evidence may be used to raise a doubt as to the culpability of the accused, but it cannot in any circumstances be used against the co-accused in establishing her guilt.
 In my view, the respective fair trial rights of both accused are best balanced by the admission of the evidence. I invited counsel to submit whatever additional submissions they felt were relevant to this motion at the time of the re-election to judge alone. I did not receive additional submissions....
[September 29, 2021] Jury Selection: Vaccination Status of Jurors [Justice J. Williams]
AUTHOR’S NOTE: Well into the 4th wave of the covid-19 pandemic, BC has joined Ontario and Alberta in producing a persuasive authority for mandatory vaccination for jurors. Hopefully, this approach is now being followed across the board.
 This trial takes place at a time when British Columbia is coping with a significant COVID-19 pandemic. The numbers have recently been in an increasing mode; the Public Health Officer continues to make orders and impose restrictions with a view to managing the situation. An important element in the battery of measures that have been taken to control the spread of COVID-19 in the community is actively encouraging individuals to receive two doses of the available and approved vaccines.
 ... Service on a jury entails being in close personal contact with a number of other persons, including other jurors.
 In my view, there are two particularly compelling reasons to be concerned. The first is that the civic duty of jury service is a significant imposition upon members of the community. The Court calls upon persons to serve as jurors and, accordingly, it seems to me the Court is obliged to ensure that service on a jury is conducted in a way that will best ensure the health of those jury members. A second concern is that the jury trial upon which we are about to embark is a substantial and complex undertaking involving many individuals. It is an extensive and expensive proposition that entails a significant commitment of judicial and legal resources. For many reasons, including the constitutional obligation of seeing that criminal trials are conducted in a timely way, the Court must take all reasonable measures to ensure that the trial proceeds to its conclusion.
 It would be a wholly unfortunate outcome for members of the jury or others who are involved in this process to become infected by the COVID-19 virus in the course of the trial. Similarly, it would be a travesty to find this trial derailed and having to be brought to a premature conclusion – a mistrial – because COVID-19 infection had rendered participants, whether jurors, counsel, staff or anyone else involved, unable to continue.
 In all the circumstances, I have concluded that it is appropriate to require that all persons who serve upon this jury will have received two doses of vaccine. If any of the panelists are unable to give their assurance as to having been vaccinated, or if any of the panelists elect not to inform the Court of their status, based upon their concern for personal privacy, those persons will not be appointed to the jury.
 In the result, it is the order of this Court that any person serving on this jury shall have received two doses of a provincially approved COVID-19 vaccine.
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