R. v. McKenzie, 2013 ONCJ 42

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: 114723 DATE: 2013·01·28 Citation: R. v. McKenzie , 2013 ONCJ 42 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PETER JOHN MCKENZIE Before Justice D. DiGiuseppe Heard on November 20, 2012 Oral Ruling on Voir Dire December 19, 2012 Stacey Hamilton ......................................................................................................... for the Crown

S. George Joseph ..................................................................... for the accused Peter John McKenzie DIGIUSEPPE J.: (orally) A. OVERVIEW [ 1 ] Peter McKenzie is charged with two counts of sexually assaulting C.C. on June 4 th , 2011. C.C.’s identity is protected by court order. The trial commenced on November 20 th , 2012. The Crown seeks to introduce into evidence the video recorded statement of a witness, S.D., who is deceased, for the truth of its contents. This is hearsay evidence and generally not admissible.

The Crown seeks to have the statement admitted under the principled approach by satisfying the requirements of necessity and reliability. [ 2 ] A voir dire was conducted to determine the admissibility of Mr. S.D.’s statement. The parties agreed that the evidence from the witnesses at the voir dire and the statement of Mr. S.D., subject to my ruling on admissibility, would be applied to the trial. The alleged victim C.C. testified on the voir dire . By prior agreement she was not cross-examined by defence counsel during the voir dire .

Defence counsel reserved his right to cross-examine C.C. after the conclusion of the voir dire . B. THE EVIDENCE [ 3 ] C.C. testified. She is 20 years old. In June 2011, a dark period in her life, she was living with S.D. in his home on S[…] Street in the City of Thunder Bay. She had lived with Mr. S.D. for less than one year. She met him through her drug use. C.C. was addicted to oxycodone and crack cocaine. She ingested drugs daily, in such quantities as she could afford. As of the date of trial, C.C. had been drug free for one year. [ 4 ] On the date in question, C.C. was in her home with Mr. S.D..

The accused, Peter McKenzie, whom C.C. had previously met at a detox centre, and Natalie, whose last name she cannot remember, came to Mr. S.D.’s home. C.C. has a limited memory of what occurred afterwards. She remembers injecting oxycodone and consuming methadone, which Mr. S.D. gave her. She recalls sitting in the living room watching television and then going to Mr. S.D.’s bedroom where she started to tidy up. She believes she passed out on Mr. S.D.’s bed. She then awoke in an upstairs bedroom. Mr. S.D. was there. She was naked and crying asking why she was naked. She remembers Mr.

S.D. talking to her in the bedroom. She remembers being in an ambulance but not being at the hospital. [ 5 ] C.C. recalls snippets of conversation with Mr. McKenzie after he arrived, but nothing of substance. She recalls no physical contact with him. She says she did not consent to any sexual activity with anyone and would not have had sex in any event with Mr. McKenzie. C.C. does not recall consuming alcohol that evening although she does not drink alcohol very often. She has consumed other drugs besides oxycodone and cocaine in the past. It is possible that she may have that evening. She cannot recall.

C.C. said it was uncommon for her to pass out like she did that night. [ 6 ] Detective Constable Sean Harrison testified. He investigated the allegations of sexual assault. He attended Mr. S.D.’s D[…] Street residence on June 4 th , 2011 and was briefed by officers at the scene. He did look into the bedroom where the sexual assault allegedly occurred and noted an unmade bed with some blood on it. He met C.C. briefly at the hospital. She appeared heavily intoxicated and he did not speak with her at that time. She appeared to be in an out of consciousness.

He eventually conducted an interview with her on June 15 th , 2011. [ 7 ] D.C. Harrison met Mr. S.D. briefly at his residence on June 4 th . Mr. S.D. was known to him. Mr. S.D. appeared agitated but this was not unusual given previous encounters with him. After a number of attempts to speak with Mr. S.D. over a number of days, D.C. Harrison finally conducted an interview with him on June 27 th , 2011. At this time Mr. S.D. was considered a witness, although D.C. Harrison had some concern that he might not be telling the truth and implicating Mr.

McKenzie for his own reasons; perhaps jealousy. [ 8 ] The interview with Mr. S.D. was conducted at the police station. It was audio and video recorded, a fact of which Mr. S.D. was aware. There were no threats made or inducements offered to procure the statement. Mr. S.D. did not appear to be under the influence of any intoxicants nor did he appear to be under any disability that would compromise his ability to provide a statement. Mr. S.D. was sworn by a commissioner for oaths. He promised to tell the truth. He was advised of potential criminal consequences if he lied under oath. He appeared to understand.

The CD recording of Mr. S.D.’s statement was played in court and the CD itself was filed as an exhibit. [ 9 ] Mr. S.D. recounted the events with C.C and the accused at his home over the course of several days, including the date of the alleged sexual assaults. Mr. S.D.’s statement included the following: • The accused and C.C. were together and left the residence together at one point, returning the next day with groceries.

• During the course of the day and evening, he, C.C., and the accused drank alcohol, consumed crack cocaine, and injected cocainerepeatedly. C.C. also consumed clonazepam and vallium. • Although C.C. did not usually drink alcohol she did so on this occasion and he believes she put methadone into her vodka. • He observed C.C. in his bedroom. She says she was cleaning. He believes she was snooping. • C.C. passed out on the bed. • The accused came into the bedroom, picked up C.C. and said he would take her to bed.

C.C. awoke and said she wanted to sleepon the couch. • He observed C.C. and the accused over a period of time on the couch in the living room. The accused was seen rubbing betweenC.C.’s legs under a blanket. C.C. appeared to be moaning. Her pants were on the floor. • The accused made a comment about having a threesome. • C.C. stirred and said to the accused words to the effect “I told you not to do this while I’m asleep, cuddling is okay”. • Approximately one hour later the accused is seen picking up C.C. and taking her upstairs.

C.C. said in a groggy voice that shewanted to go to bed. • The next morning he entered the upstairs bedroom and saw C.C. and the accused in bed together. • The accused asked for privacy. Mr. S.D. left and returned some time later. He told the accused to leave. He did. C.C. stood up andasked why she was naked. • He saw a condom in the room, and what looked like blood and a small amount of feces on the bed. [10] Mr. S.D. acknowledged that he was jealous of the accused and his relationship with C.C. He said the accused was a liar, adrunk and brought cocaine into the home.

He also noted that the accused was not particularly good looking. Mr. S.D. felt insulted that hehad “offered C.C. his heart and she had chosen the accused”. Mr. S.D. liked C.C. but says he had no relationship with her. They did sleepin the same bed together at times but only cuddled. [11] In cross-examination, D.C. Harrison agreed that Mr. S.D. may or may not have been under the influence of drugs duringthe interview. Certainly, a viewing of the video shows Mr. S.D. in an agitated state, very talkative and often rambling, moving from topicto topic often in a random way. It was also apparent that Mr.

S.D. spoke with C.C. after her interview with police and prior to hisinterview with police, and was fully aware of the statement she gave to police. [12] The Crown also filed through D.C. Harrison a number of exhibits, including the medical records of C.C. and reports from the Centre of Forensic Sciences dated September 13th, 2011 and February 6th, 2012. These were admitted on consent. C. THE LAW [13] Hearsay evidence is presumptively inadmissible unless an exception applies. This safeguard protects against theadmissibility of evidence when its reliability cannot be tested.

Out of court statements tendered to establish the truth of their contentsmust fall under a traditional exception to the hearsay rule or under the principled approach by establishing necessity and reliability. Evenwhen these criteria have been met, the court retains a discretion to exclude otherwise admissible hearsay evidence if its prejudicial effectoutweighs its probative value. See R. v. Khelawon 2006 SCC 57 , [2006], S.C.J. No. 57. [14] In this case the declarant, S.D., is deceased. There is no source of his statement other than the recording.

Necessity hasbeen established. [15] The reliability requirement to establish admissibility can be met in two ways. The court in Khelawon stated that thecircumstances under which the statement came about may be such that a court can put sufficient trust in its truth. Secondly, even thoughthe statement is presented in hearsay form, its truth and accuracy may still be nonetheless sufficiently tested. Granted, in thesecircumstances, contemporaneous cross-examination, which is the optimal way of testing evidence in our adversarial system, is notavailable.

However, there may be other factors which permit a court to sufficiently test the truth and accuracy of a statement in theabsence of cross-examination. [16] There is also authority to suggest that in certain limited circumstances the presence of striking similarities in thestatements of others, particularly with respect to the matter in question, could begin to satisfy the reliability requirement for admissibility.See Khelawon, para. 108. [17] With these general principles in mind, and mindful that admissibility depends on the particular circumstances of eachcase, I turn to the matter before the court.

E. ANALYSIS [ 18 ] The Crown presents a number of factors that cumulatively ought to satisfy the court of the truth and accuracy of Mr. S.D.’s statement, thus establishing reliability.

They include the following: • The statement was recorded. • The statement was made voluntarily. • The declarant appeared competent. • The statement was taken under oath and the declarant was made aware of the consequences of not telling the truth. • The declarant’s demeanour can be observed and assessed. • The declarant made admissions to drug use that would put him in a negative light. • Although not cross-examined, there were probing questions by police that would have been asked in cross-examination. • There are aspects of the statement that are consistent with other evidence.

For example: • The accused arrived with beer. (Photos of beer cases from the declarant’s home have been filed.) • Drug use, which has been confirmed by C.C. • C.C is in the bedroom cleaning. • C.C. passed out in that room. • C.C. awakes in an upstairs bedroom. • C.C. exclaims “why I am naked” when she awakes. • Blood is observed on the bed. • C.C.’s condition the morning after the incident. • A condom is found. • Semen on vaginal swabs from C.C. are linked to the ac- cused. [ 19 ] The Crown submits that the corroborating aspects of the evidence negate any apparent motive to fabricate, and in any event, Mr.

S.D. stated that his relationship with C.C. was poor, at least at the time the statement was made. [ 20 ] The defence argues that in addition to the inability to cross-examine the declarant, there are three particular concerns that detract significantly from the reliability of his statement. Firstly, the statement was not given contemporaneous, or relatively so, to the event. It was given some 24 days later. Within that time, police interviewed C.C. and Mr. S.D. spoke with her about the incident. Secondly there is no ability to determine Mr.

S.D.’s level of sobriety, either at the time of the incident or when giving the statement. This may have an impact on his ability to recall and recount the events accurately. Finally, there is a motive for Mr. S.D. to lie given the nature of his relationship with C.C. [ 21 ] The video and audio recording of Mr. S.D.’s statement does provide a complete and comprehensive record. His demeanour can be viewed and assessed. The statement was given under oath. These factors do support reliability, as do many of the others identified by Crown counsel.

However, those concerns expressed by the defence are noteworthy and deserve further scrutiny. [ 22 ] The timing of the statement, 24 days after the event, is troubling, particularly since the evidence is clear that Mr. S.D. spoke with C.C. after she spoke with police on June 15 th and prior to his giving his statement on June 27 th . Notwithstanding C.C.’s limited recollection of the events of June 3 rd and 4 th , she did have some memory of those events and the fact that she clearly shared information with Mr.

S.D. before he gave his statement points to a possibility of collusion, innocent or otherwise, and serves to undermine reliability. [ 23 ] The level of Mr. S.D.’s sobriety at the time he made his observations is also of concern. It is clear from the statement that Mr. S.D. engaged in an evening of drug consumption with C.C. and others. The level of his intoxication was not an area of inquiry while he gave his statement. Certainly some questions as to his level of sobriety may have provided information and insight into his ability to recall the events.

This no doubt would be an area that would be extensively mined during cross-examination. On this point, there is no other evidence to consider absent cross-examination. This is a factor that weighs negatively on reliability. [ 24 ] Mr. S.D.’s sobriety when he gave the statement is also concerning. D.C. Harrison could not say for certain that Mr. S.D.

was not under the influence of drugs. Indeed, when I viewed his statement, Mr. S.D. appeared agitated and restless. He was oftenrambling and jumped from topic to topic, not necessarily in any particular order, chronological or otherwise, and often not responsiveentirely to questions asked. His demeanour, particularly in the face of D. C. Harrison’s comment that he could not be certain that Mr.S.D. was under the influence, tends to undermine reliability. [25] The area of most concern in assessing reliability is the possibility of a motive to lie.

The absence of any motive tofabricate can buttress the reliability of an out of court statement. See R. v. Khan (1990), (SCC), 59 C.C.C. 3d 92 SCC at106. Similarly, a strong motive to lie can undermine a statement’s reliability. In this case, Mr. S.D. exhibited a strong affection for C.C.and an equally strong disdain for Mr. McKenzie. The fact that his relationship with C.C. at the time of the statement may have been pooris of no import. His feelings for C.C. were still strong. Indeed, D.C.

Harrison’s initial assessment was that he had concerns about Mr.S.D.’s statement in that he might implicate the accused because he was jealous of his relationship with C.C., or for some other personalmotive. In my view, this combination of affection and disdain together would make it extremely difficult for me to assess the truth of Mr.S.D.’s statement absent cross-examination on these points.

This again undermines reliability. [26] While there are certain factors advanced by the Crown that tend to establish reliability, the delay in taking the statement,the declarant’s demeanour when he gave the statement, the possibility he would have been under the influence of drugs at the time of theevent, the animus he exhibited to the accused in his statement and the motive to falsely accuse him all significantly undermine reliability.I cannot, in these circumstances, for the reasons stated, place sufficient trust in the truth and accuracy of the statement. E.

CONCLUSION [27] The Crown has not established reliability and the statement of S.D. will not be admitted into evidence. Released: January 28, 2013 __________________________ Signed: “Justice D. DiGiuseppe”