Provincial Court

Introduction

 

[1.]           Ms. Moore phoned her father and sister the morning after an alleged assault by her then boyfriend, Stephen Bishop.

[2.]           Mr. Alexander Moore said his daughter was sobbing and crying on the phone and asked him to pick her up and take her to the hospital.  When he arrived she was in the doorway.  She was visibly upset.  He could not tell “either way” if she was under the influence of anything.

[3.]           The complainant told him what happened the night before.  He took her to the Cape Breton Regional Hospital and then called the police because he was concerned.  He testified “she had a severe cut, very deep in the ‘v’ part of her hand.”

[4.]           They were at the hospital for forty-five to sixty minutes.  Ms. Moore spoke with police at the hospital and then returned to the apartment with them, because she was afraid Mr. Bishop would still be there.

[5.]           Constable MacKinnon testified they spoke with the complainant when she was in a car driven by her father.  She was visibly upset and there was a bandage on her hand.  Ms. Moore was hesitant initially, but then revealed some information.  She did not exhibit any signs of intoxication or of being under the influence of drugs.

[6.]           Ms. Moore went to the police station January 23, 2011 and gave a statement to police which began at approximately 3:08 pm.

[7.]           From the beginning Ms. Moore made it clear she did not want to write a statement, because she did not want the defendant to go to jail.  She was the one feeling guilty because the defendant was arrested and because she had encouraged him to take 10 pills.

[8.]           She was also worried that this police attention would get her evicted from her apartment, and make it difficult to get her son back.  Not once did she say it did not happen (earlier she did make reference to cutting her hand when she was cutting vegetables, but the responding officers did not buy that.)

[9.]           Ms. Moore was asked by Constable Morgan during the statement if she had been drinking or taking medication or anything the night before and she said no.  She did not ask her if she was under the influence of alcohol or drugs at that moment.

[10.]       Constable Anthony, who monitored the statement, testified the complainant “seemed sober, coherent…no smell of alcohol.”

[11.]       Constable MacLeod who transported the complainant from her home, testified Ms. Moore did not appear to be intoxicated but was emotional.

[12.]       The court reviewed the DVD and read the transcript.  I find that the complainant was coherent.  She did not sound or appear to be under the influence of alcohol or drugs. 

[13.]       At trial Ms. Moore testified:  (1.) She does not remember what happened.  (2.) She lied.  (3.) Some things probably happened.  (4.) She does not recall giving a statement because she was on drugs.  (5.) She does not believe her statement is true. 

Issue:

[14.]       Should the court accept the complainant’s prior inconsistent statement for the truth of its contents and, if so, given all of the evidence, has the Crown proven its case beyond a reasonable doubt.

[15.]       On the voir dire at trial both counsel focussed on the issue of reliability, as necessity was met because Ms. Moore was essentially recanting.  As in K.G.B., [1991] O.J. No. 528, where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.  Ms. Moore was available to be cross examined by defence counsel.

[16.]       After a “Khelawon Application” (see Appendix “A”) by the Crown, the court found that the test of “threshold reliability” had been met.  The court must now decide the issue of “ultimate reliability”.  In doing so, I must answer the question:  “What factors must be considered in deciding whether the evidence is sufficiently reliable to be admitted.”  [Khelawon, 215 C.C.C. (3d) 161, para. 43]  (See Khelawon, paras. 47, 48, 49–trial fairness)

[17.]       5.4 Constitutional Dimension: Trial Fairness

47     Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities. In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused's ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose, [1998] 3 S.C.R. 262. The concern over trial fairness is one of the paramount reasons for rationalizing the traditional hearsay exceptions in accordance with the principled approach. As stated by Iacobucci J. in Starr, at para. 200, in respect of Crown evidence: "It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception."

48     As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes [page815] cross-examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

49     The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its [page816] probative value is outweighed by its prejudicial effect.

 

          Identifying Relevant Factors

[18.]       Reliability is met when:  (1.) There is no real concern about whether the statement is true or not because of the circumstances in which came about.  (2.) It’s truth and accuracy can be sufficiently tested.

[19.]       In R. v. B.(K.G.) [1991] O.J. No. 528, the court held that a prior inconsistent statement is sufficiently reliable for substantive admission if it is made in circumstances comparable to giving in-court testimony.  In R. v. U.(F.J.) 90 C.C.C. (3d) 541, the reliability requirement was met by showing that there was no real concern about whether the complainant was speaking the truth in her statement to the police.

[20.]       And at para. 92, the court stated:

“When reliability is dependent upon the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not.”

[21.]       R. v. J.M. [2010] O.J. No. 585 at para. 59:

…relevant circumstances include, but are not limited to:

(i.)  Timing of the statement in relation to the event;

(ii.)                        The absence of a motive to live;

(iii.)                      The presence or absence of leading questions;

(iv.)                     The nature of the event reported;

(v.)                       The likelihood of the declarant’s knowledge of the event;

(vi.)                     Confirmation of the event reported by physical evidence.

 

[22.]       The inquiry involves a functional approach to consider whether the circumstances in which the statement was made have sufficiently allayed concerns about perception, memory, sincerity and maintain, the traditional and inherent hearsay dangers.

[23.]       Obviously, the credibility of Ms. Crystal Moore is at the heart of the matter.  Mr. Bishop did not testify at trial but his audiotaped statement to police on January 23, 2011 was tendered as an exhibit by the Crown without the necessity of a voir dire.

[24.]       “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.  The test must reasonably subject his/her story to an examination of its consistency with the probabilities that surround the currently existing conditions.”

[25.]       The Crown has the burden to prove the guilt of Mr. Bishop beyond a reasonable doubt.  He is not required to testify at trial, nor is he required to cooperate and give police a statement.  He has the right to remain silent.

[26.]       This is a case of domestic violence.  In this case, like many others, there are no witnesses to the events alleged.  In particular there is no DNA report, no fingerprint analysis, no bloodsplatter expert, no forensic reports of any kind on any of the exhibits seized. 

[27.]       Ms. Moore attended the hospital and later signed a release form for Constable Morgan, but no doctor was called to testify and no medical reports were tendered as exhibits.  Photographs were taken of the complainant’s apartment; none were taken of her injuries.  The complainant showed the court while on the stand the scars on her left and right forearms and on her left hand at the “v” of the thumb and first finger. 

[28.]       Defence counsel argues that the complainant is not to be believed.  He says she lied to get attention.  However, based on all of the evidence, I find that this is not the attention she wants.  From the beginning in her statement she did not want police involved or the scrutiny of the Children’s Aid Society. 

[29.]       Defence argues that the police raised the issue of the Children’s Aid Society and the complainant made up a story and blamed the defendant.  I find this is not the case.  At page three of the complainant’s statement she brought up her concerns regarding the Children’s Aid Society and her son, not Constable Morgan.

[30.]       Defence counsel argues the exhibits mean nothing because there has been no forensic examination of same.  However, I would disagree.  Forensics would perhaps strengthen the Crown’s case, but the exhibits cannot be discounted entirely.

[31.]       And lastly, defence counsel argues that because Constable Morgan is not here, there is a void in the Crown’s case.  Other officers testified and the court viewed the DVD.  However, despite Constable Morgan not testifying, I find it is not a hurdle the Crown cannot get over, nor can it prevent the court from making a proper assessment.

[32.]       I reviewed the defendant’s statement he gave to police.  Although he refused to give a statement, which is his constitutional right, there are a few comments which give more credence to the complainant’s statement.

@ p.3

J.A.:   Looks like someone got killed down there.

S.B.:  It’s from a cut on her hand.  It’s fuck….

@ p.4

S.B.:  Well did she say when the fight over Jayden, what did she say.

J.A.:   She thinks you’re jealous over Jayden.

S.B.:  Oh my God man.

J.A.:   And you lost your temper.

 S.B.: That’s what she said was it?  No, I know that’s not what she said

@ p.5

J.A.    ...I know that they were making her not have any contact with anybody with a criminal record and they knew you part of that...

S.B.:  I don’t know nothing about that part, about, at all...

@p.7

J.A.:   I told you that yous went out last night to get some groceries, yous came back and you had a few drinks.  Is that true or not true?

S.B.:  Yeah

@p.9

S.B.:  I have nothing to say then.  I’ll talk to my lawyer tomorrow.  It didn’t start over a fuckin’ argument over getting rid of me to get her child back man...

J.A.: Well what did it start over...

Later

S.B.:  By the police being called to the fuckin’ hospital.

J.A.:   Yes because she needed medical care for a serious cut.  That makes sense right.  You know she’s cut.

S.B.:  Yeah I know she’s cut.

Later

J.A.:   Is it possible she cut herself?

@p.10

S.B.: Them charges, most of them are going to be gone, dropped.  That’s fuckin’ ridiculous.

J.A.:   Is it possible she cut herself?

S.B.:  I want to hear her say first.

Later

S.B.:  What, the kitchen knife, how she got cut?  Yeah but ah, the that wasn’t from fuckin’ me how she got cut.

@p.11

S.B.:  It happened last night yeah but I mean, Holy Fuck she could have left anytime she wanted to fuckin’ leave... She left in the morning I let her.

Later

S.B.:  She called her father to come pick her up...

Later

J.A.:   ....  Who bandaged her hand up?

S.B.:  What to you mean, with the towel?

J.A.:   She was cut, yeah.

S.B.:  With a towel wrapped around her?

@p.12

S.B:   So which ones will stick?  The breach of probation will stick, ah, ah property damage.  I don’t know.

J.A:    ....  There’s a knife through the door at the apartment.  How did that happen?

S.B.:  Okay, I know that yeah, like I, so that’s the property damage?

J.A.:   Unknown.

S.B.:  Okay the property damage, breach of probation.

[33.]       Like so many domestic violence cases, it is not unusual for the complainant to recant or feign memory loss, etc.  The cycle of violence creates fear, loss of self-confidence and self-esteem.  Ms. Moore feels responsible for the events that evening because she encouraged Mr. Bishop to take [10] pills. She did not want to cooperate with police.  If so, why tell the police what she did knowing full well, in her own words, Mr. Bishop would go to jail.  And now at trial says she lied.  I find it was not to appease the Chidrens Aid Society as suggested by defence counsel.  In her statement she admits to cutting herself and receiving a cut from Mr. Bishop.

[34.]       Ms. Moore’s statement was not disjointed.  It was logical and flowed from start to finish outlining a sequence of events that contained sufficient detail to suggest a certain level of knowledge of an event, not just that it occurred.  And dissuading me that she was “ossified” on the night in question.  Her feigning now is filled with words like “probably”, and “don’t believe” – words of uncertainty, not equivocation as on January 23, 2011.

[35.]       There are exhibits referred to in her narrative; knives, the towel, the knife in the door, red smears on the door knob, broken photo frame, blankets, all of which are consistent with her narrative.

[36.]       The court observed scarring on her forearms and on her left hand at the “v” between her thumb and index finger.

[37.]       The defendant did not describe the evening as an “argument” he refers “it”.  He offers the “cut on her hand” at the very beginning to justify all of the blood referred to by the officer. 

[38.]       Mr. Bishop acknowledges he knows about the knife in the door.  And he says he “let her” go in the morning.

[39.]       It is obvious from the photographs that something occurred that evening.  It was of sufficient concern to the complainant’s father that he called the police ­not­  the complainant.  Ms. Moore at points tries to minimize the defendant’s behaviour, blaming it on the pills and alcohol, that’s he is really a nice guy otherwise.

[40.]       If it was  Ms. Moore who cut herself on her forearms and hand, and did all of these other things, why did the defendant not call the police or, at the very least, an ambulance or her family.  Why would you go to bed with someone bleeding?  It is because the defendant did not want the police involved because of what he did to the complainant.

[41.]       Based on all of the evidence, I find Ms. Moore’s statement to be reliable and is “ultimately” reliable. 

[42.]       Further, based on the court’s assessment of all of the evidence as a whole, including Ms. Moore’s credibility and the reliability of her statement, I find the Crown has proven the following beyond a reasonable doubt:

Count #1 – guilty to the included offence of assault causing bodily harm

                   Not guilty to aggravated assault

Count #2 -   guilty to the charge under section 264.1(1)(a) Criminal Code

Count #3 -   guilty to the charge under Section 88 Criminal Code

Count #4 -   guilty to the charge under Section 279(2) Criminal Code

Count #5 -   not guilty to the charge under Section 266 (bathtub)

Count #6 -   guilty to the charge under Section 430(4) (knife in door)

Count #7 -   guilty to the charge under Section 733 – (PO of Sept.24/10) (kpbgb)

Count #8 -   guilty to the charge under Section 733 – (PO of Sept.24/10) (alcohol)

Count #9 -   guilty to the charge under Section 733 – (PO of Sept.24/10) (drugs)

Count #10 - guilty to the charge under Section 733 – (PO of May 3/10) (kpbgb)

Count #11 - guilty to the charge under Section 733 – (PO of May 3/10) (drugs)

Count #12 - guilty to the charge under Section 145 – (UT of July 12/10) (kpbgp)

Count #13 - guilty to the charge under Section 145 – (UT of July 12/10) (drugs)

Count #14 - guilty to the charge under Section 145 – (UT of July 12/10) (no communication)

Count #15 - guilty to the charge under Section 145 – (UT of June 15/10) (kpbgb)

 

The Honourable Judge Jean M. Whalen, J.P.C.

 

APPENDIX ‘A’

 

Introduction

 

[43.]       This is the decision on a Khelawon application by the Crown.

[44.]       The complainant, Crystal Moore, did not repeat or adopt the information contained in her out-of-court statement.  The Crown is seeking to tender this statement for the truth of its content.

[45.]       In the case itself, R. v. Khelawon, 215 C.C.C. (3d) 161, at para. 39, the court asks several questions about reliability and the questions they list are not exhaustive.  They suggest the trier of fact should ask themselves how trustworthy is the statement? In what circumstances did the complainant make it? Was it made formally to police or some other person?  Was the complainant aware of the potential consequences of making that statement?  Did the complainant intend it to be acted upon?  Did the complainant have a motive to lie? And what condition was the complainant in when she made the statement?  And lastly, the concerns of that particular case were that the complainant does not recant, but testifies she has no memory of making the statement, or worse, no memory of the assault.

[46.]       In para. 50 of Khelawon supra confirms threshold reliability is the issue is to be inquired upon when you are discussing admissibility in the voir dire.

[47.]       I would note that, with respect to the alleged facts in this matter, this incident is alleged to have occurred at 11:30 PM.  The complainant indicates she could not leave or call, but she was able to call her father in the morning.  Her father took her to the hospital and he subsequently called police.  The police arrived and took her to the police station.  So I find that the statement was taken within a 24 hour period.

[48.]       I note the statement was not under oath, but it was videotaped. 

[49.]       As well, the complainant also spoke to her father and sister telling them some things that had allegedly occurred. 

[50.]       The police officer testified the complainant did not show signs of impairment.  The complainant was asked this prior to taking the statement, and she denied same. 

[51.]       The complainant was clearly aware of the consequences and that is why she did not want to cooperate.  Her concern was that Mr. Bishop would go to jail, and that she would not be able to pay rent or she would be evicted.  At the time she did not say that it did not happen, but was reluctant because of the above.

[52.]       The events outlined are not complicated, but she has a level of knowledge above just saying something happened.  She supplies a reason why Mr. Bishop did what he did; they were breaking up or she was breaking up with him to get her son back.

[53.]       She now says she does not recall or does not remember, or she was on drugs, or she was lying.  I do not accept that.  Based on the threshold of reliability test, I find that the Crown has met that and I am prepared to accept the statement for the truth of its contents. 

The Honourable Judge Jean M. Whalen, J.P.C.