IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Ord, 2011 NSPC 34
Date: April 8, 2011
Docket: 2174190; 2174191
Registry: Halifax
Her Majesty the Queen
v.
Jason John Ord
Decision on the Admissibility of a Complainant’s Statement
for the Truth of Its Content
Judge: The Honourable Judge Anne S. Derrick
Heard: February 28 and April 8, 2011
Decision: April 8, 2011
Charges: sections 266(b) and 145(3) of the Criminal Code
Counsel: Tanya Carter - Crown Attorney
Lee Seshagiri - Defence Counsel
By the Court:
[1] Jason Ord is charged that on or about April 8, 2010, he assaulted his girlfriend, Nicole Cameron. As he was on a recognizance dated February 22, 2010 which obliged him to keep the peace and be of good behaviour, the assault charge led to him also being charged with breaching his recognizance. The breach of recognizance charge is inextricably bound up with the assault charge: if I convict of assault then a conviction for the breach follows. If I do not convict on the assault, then the breach charge cannot be sustained. It is an all or nothing situation on the breach charge.
[2] Mr. Ord’s trial went ahead on February 28, 2011 and is continuing today, April 8. There were two Crown witnesses: Ms. Cameron and the investigating officer, Cst. Rogers. The central evidentiary issue in the trial came into focus during Ms. Cameron’s testimony: she was either unable or unwilling to provide a clear account of what happened on the night she and Mr. Ord had a fight, an altercation that was not reported to the police until Ms. Cameron contacted them a couple of weeks later on April 22.
[3] Ms. Cameron’s contact with the police resulted in her providing a statement in which she described being assaulted by Mr. Ord. The Crown indicated that, in light of Ms. Cameron’s poor recall of the event, she would be seeking to have that statement admitted into evidence for the truth of its contents on the basis of a principled exception to the hearsay rule. Ms. Cameron’s statement to police is hearsay and therefore inadmissible unless it can be received under the principled exception analysis.
[4] The Crown, with Defence consent, proceeded with a blended voir dire on the issue of the admissibility of the statement. It was agreed by the parties that the evidence taken in the voir dire would be applied to the trial proper.
[5] Once I describe the evidence given by Ms. Cameron and Cst. Rogers, I will address the issue of the statement’s admissibility.
Ms. Cameron’s Evidence
[6] Ms. Cameron recalled that one evening in April when she and Mr. Ord were having a few drinks, they decided to go out. They were each somewhat intoxicated having had, Ms. Cameron thinks, about 5 – 6 drinks each. At the time, Ms. Cameron and Mr. Ord were dating “off and on” having started a relationship about a year before.
[7] As they prepared to leave, Mr. Ord made some comment about Ms. Cameron’s appearance. She testified that an argument started because of a comment about how she looked. In the witness box she described what she says she can remember about what happened next: “I remember a lot of yelling and stuff and pushing and shoving: that’s all I can remember.” Ms. Cameron also testified that she could not remember who started the shoving. When asked by the Crown about any injuries, Ms. Cameron said she “could have been injured in the scuffle.”
[8] After Ms. Cameron indicated that her memory of the April incident was very limited, the Crown asked her about a statement she had given to the police on April 22, 2010. Ms. Cameron recalled giving a statement to police but testified that she did not recall everything she said at the time because she was extremely upset. She emphasized this further in her testimony, saying that when she was speaking to the police officer, she was “hysterical.”
[9] Ms. Cameron gave a statement to Cst. Rogers on April 22, 2010. When shown her statement by the Crown, Ms. Cameron reviewed it and acknowledged it as her statement. She testified that when she contacted the police she was extremely upset because she had been getting a lot of calls from Mr. Ord that night and thought the only way she could stop the contact from him was by calling the police.
[10] She testified she had a friend with her when she made the statement encouraging her to call the police.
[11] The Crown indicated she was making an application pursuant to section 9(2) of the Canada Evidence Act for the right to cross-examine Ms. Cameron on her statement in view of inconsistencies between the content of the statement and Ms. Cameron’s testimony. A review of Ms. Cameron’s April 22 statement to police revealed inconsistencies with her in-court testimony and I permitted the Crown’s cross-examination of her.
[12] The cross-examination of Ms. Cameron elicited the following evidence: Ms. Cameron said she thought it was possible that she told Mr. Ord, when he had commented adversely on her appearance, that he did not have the right to say what he said to her. She said she had been feeling angry and defensive. She testified she knows “we were pushing each other.” She testified that she remembers hitting the wall when pushed by Mr. Ord which she had described in her statement. She has no recollection of being punched in the face which she told Cst. Rogers Mr. Ord had done. Although she claims to have no recall of a swelling on her face, she testified that she had had a mark under her eye that lasted a few weeks. She said she had probably sustained that “during the scuffle.”
[13] When cross-examined on the giving of the statement, Ms. Cameron testified that she was “really upset and emotional” at the time she provided it. She emphasized this again, that she was “really, really upset” when she met with Cst. Rogers.
[14] Ms. Cameron did have a recall of making the statement. She called the police from her apartment using a friend’s cell phone. She and Mr. Ord were no longer together, having broken up after the fight. Ms. Cameron testified that before calling police on April 22 she had not been drinking or using drugs. It was her evidence that she called the police to assist her and was aware that when Cst. Rogers arrived, he was there to talk to her about the assault she alleged Mr. Ord had committed against her on April 8.
[15] This is what Ms. Cameron testified to about the making of her statement: she said she was “hysterical” and “not in a good place” although she acknowledged that Cst. Rogers was “great” and did not try to force her to provide a statement. She agreed her statement had been given voluntarily – “I said what I said at the time”. She had a still-visible mark under her eye that she showed Cst. Rogers.
[16] When cross-examined by the Defence about the events of April 8, the incident described by Ms. Cameron in her police statement, she confirmed that she had “definitely” not been sober at the time. She maintained that she could not recall who initiated the physical encounter but responded to a suggestion by Defence that it was possible, yes, that she initiated it. She insisted she could not recall how she got a mark under her eye. When asked whether she was pretending to forget, she answered that she “honestly” could not remember “half of it.” She continued to describe the incident with Mr. Ord as “both mutually shoving each other.”
[17] When asked about her police statement, Ms. Cameron said she was “more going for a no-contact order” against Mr. Ord. She described her reasons for contacting the police: “I was just upset because Jason was calling me so I thought the best thing was to call the police.”
Cst. Rogers’ Evidence
[18] Cst. Rogers, a police officer for 38 years, testified about the statement he took from Ms. Cameron on April 22, 2010. Cst. Rogers observed Ms. Cameron’s demeanor alternating between calm and distress. At times she was crying but Cst. Rogers testified that Ms. Cameron was “able to say what she wanted to say…” There were no signs she had been drinking. Cst. Rogers noted a small area of discolouration still visible immediately under Ms. Cameron’s left eye. He thought it was consistent with her being hit in the eye. Cst. Rogers confirmed that he had made no threats or promises in order to obtain Ms. Cameron’s statement and offered no inducements to her. He acknowledged on cross-examination that he did not caution Ms. Cameron about the consequences of making a misleading statement and did not take her statement under oath. Cst. Rogers’ evidence did not suggest that Ms. Cameron had been “hysterical” or “really, really upset” when he took her statement.
The Issue of the Admissibility of Ms. Cameron’s Statement of April 22, 2010 – General Principles
[19] As stated by the Nova Scotia Court of Appeal in R. v. Poulette, 2008 NSCA 95, “Hearsay is excluded not because it is irrelevant to the inquiry before the court, but due to the difficulty in testing its reliability.” The contents of a statement cannot be tested in the manner that a witness can be: the possibility of misperceptions, incorrect recollections, misrepresentations and lies cannot be explored. These factors, relevant to the credibility and reliability of a statement, can only be tested if the witness is in the witness box and subject to cross-examination.
[20] The principled exception to the hearsay rule will permit the admission of a complainant’s statement if the Crown succeeds in showing, on a balance of probabilities, that its admission is (1) necessary and (2) reliable. A residual discretion to exclude the statement exists even where the criteria of necessity and reliability are made out if the statement’s probative value is outweighed by its prejudicial effect. (R. v. Blackman, 2008 SCC 37, paragraph 33)
[21] In this case the Crown is seeking to have Ms. Cameron’s police statement admitted into evidence because Ms. Cameron’s testimony has been inconsistent with her police statement of April 22. The fact that her statement cannot be tested through cross-examination does not preclude it being admitted as evidence for the truth of its content:
…it is recognized that the inability to test evidence through cross-examination does not bar the admission of the hearsay evidence when (i) there is no real concern about whether the statement is true or not because of the circumstances in which it was made; and/or (ii) circumstances are such that the trier of fact will be able to sufficiently test the truth and accuracy of the statement. These situations are not mutually exclusive alternatives and can both be considered in assessing the admissibility of a statement. (R. v. Khelawon, 2006 SCC 57, at paragraphs 49 and 61-63.)
[22] The admissibility of the statement is dealt with as an issue of threshold reliability. Threshold reliability focuses on the admissibility of the statement not on whether it will be relied on for deciding whether the charges have been proven against the accused. In addressing the matter of threshold reliability and whether the statement should even be allowed into evidence,
…all relevant factors should be considered, including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. (Khelawon, paragraph 4)
[23] Therefore, first of all I must consider only whether Ms. Cameron’s statement should be admitted as evidence before me or not. Only if I admit the statement does the question of the weight it should be accorded come into play, once I am engaged in an analysis of the whether the assault charge has been proven by the Crown against Mr. Ord beyond a reasonable doubt. At this stage I am only considering whether Ms. Cameron’s statement will be admitted as part of the Crown’s case for the truth of its content.
[24] In determining the threshold reliability issue, I am not limited to considering only the circumstances of the making of Ms. Cameron’s statement. I can factor into my analysis a broader scope of evidence.
[25] The Defence asserts that Ms. Cameron’s statement should not be admitted because (1) Ms. Cameron’s memory loss is not a sufficient basis for finding that the admission of the statement is necessary, and (2) the statement should also not be admitted as it is not reliable.
Necessity
[26] Ms. Cameron testified that she has moved on from these events: she said “I just want to forget about this.” She claimed not to have a good recall of the events of the incident with Mr. Ord. She was unable to supply details about the events that led to the assault charge against Mr. Ord. Her statement is much more detailed and specific on what happened.
[27] I accept that the statement is necessary to the Crown’s case in light of the fact that Ms. Cameron has a poor memory of the events in issue. The Defence has submitted that this is not a basis for finding necessity but I find that it is. Under the principled approach to hearsay I find the necessity requirement has been met in this case.
Reliability
[28] In assessing whether Ms. Cameron’s statement to police can be assessed for its credibility and reliability even though it cannot be subject to cross-examination on its content, I rely on the following:
· Ms. Cameron was upset when she gave the statement but, according to Cst. Rogers, whose evidence I accept, not hysterical as she has claimed, and capable of describing the events from two weeks earlier. I accept she was upset but not impaired in her ability to give her statement.
· There is no suggestion that Ms. Cameron had, or was experiencing, any difficulties with cognition, understanding, or perception.
· Ms. Cameron was not drinking or using drugs, nor had she been, when she gave her statement to Cst. Rogers.
· Ms. Cameron, by her own evidence, indicates she called police to give a statement because she wanted Mr. Ord to stop contacting her. She did not say that the statement she gave was untrue or that she was trying to retaliate against Mr. Ord by making up an accusation. She had plenty of opportunity in her testimony to say she had fabricated her statement and she did not say this anywhere in her evidence. I am satisfied of this by having listened to the recording of Ms. Cameron’s testimony from February 28, 2011 this afternoon during a recess.
· Ms. Cameron testified to having been in a physical altercation with Mr. Ord a couple of weeks before she met with Cst. Rogers. She now says she cannot remember what happened and made it quite clear in her testimony that she has moved on and does not want to be involved in a prosecution against Mr. Ord. She testified that when she called police she was “rather more going for” an order for Mr. Ord to have no contact with her. That fact does not indicate Ms. Cameron was untruthful in her statement to Cst. Rogers about the incident on April 8.
· Cst. Rogers testified that Ms. Cameron called police because she was scared; Mr. Ord was contacting her and she did not know what else he might do.
· Ms. Cameron testified that Cst. Rogers was “great” and did not apply any pressure or offer any inducements to get her to give a statement.
· Ms. Cameron’s statement was largely a narrative statement, Ms. Cameron’s own words describing an incident. There were no leading questions from Cst. Rogers.
· Ms. Cameron had a mark under her eye which was visible to Cst. Rogers and which she acknowledges she may have sustained in the altercation with Mr. Ord. This is consistent with what Ms. Cameron told Cst. Rogers, that she was punched in the face by Mr. Ord.
· Ms. Cameron’s police statement provides clear and specific details of an encounter with Mr. Ord that included him pushing and punching her.
· In the course of cross-examining her, the Crown asked Ms. Cameron if she understood that domestic violence was a serious allegation to make. Ms. Cameron’s response to this was telling. She said: “Yes, that’s why we are not together anymore.” This is consistent with the evidence Ms. Cameron gave that she and Mr. Ord broke up after the incident that she subsequently reported to the police.
· I do not find it undermines the reliability of Ms. Cameron’s statement that it was not video-taped. Nor do I find the reliability of the statement to be undermined by Cst. Rogers not having warned Ms. Cameron about the consequences of giving a false statement. I do not find there is any basis for a suggestion that Ms. Cameron fabricated her statement of April 22, 2010. With such a simple and straight-forward statement I do not find that video-taping was required for the purposes of reliability.
[29] I do not find there is any evidence that detracts from the threshold reliability of Ms. Cameron’s statement and, as I am satisfied the Crown has met its burden for admissibility, I admit the statement into evidence to be further assessed and weighed on the central issue of whether the assault allegation against Mr. Ord has been proven beyond a reasonable doubt.