r v. FRANCESCO FIORINO, 2018 QCCQ 8110

R. c. Fiorino 2018 QCCQ 8110 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-73-003991-136 DATE: November 9, 2018 BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. THE QUEEN Prosecutor v. FRANCESCO FIORINO And GENNARO DI MARZIO And NICOLA IAMMARRONE Accused DECISION ON AN APPLICATION TO INTRODUCE HEARSAY EVIDENCE PURSUANT TO SECTION 715(1) Cr.C .

INTRODUCTION [ 1 ] This is an application by the Crown to tender evidence from a preliminary hearing pursuant to section 715(1) of the Criminal Code ( Cr.C. ). [1] The three accused face charges stemming from allegations of corruption and fraud related to the Canada Revenue Agency (CRA). Mr. Di Marzio and Mr. Iammarrone were both employees of the CRA. They will face a joint trial beginning in March 2019. Mr.

Fiorino, an accountant who represented various taxpayers, will have a separate trial which is not yet scheduled. [2] [ 2 ] The evidence sought to be admitted is the testimony of Jean-Guy Ouellet, given at the preliminary hearing on these same charges. Mr. Ouellet, also a former CRA employee, admitted his participation in fraudulent activity within the CRA and became an informant for the RCMP in this matter in 2011. He testified and was cross-examined over a period of eight days in October and November 2015 in the presence of all three accused.

He provided details about the commission of the crimes alleged and explained how he became a state agent in exchange for money and immunity from prosecution. Mr. Ouellet died in September 2017, which is why the Crown now seeks to tender this prior testimony at trial. POSITION OF THE PARTIES [ 3 ] It is not disputed that the statutory requirements of section 715(1) for the preliminary inquiry evidence to be read in at trial have been met. Indeed, Mr. Ouellet gave evidence at the preliminary inquiry on the same charges and is since deceased, and the accused had full opportunity to cross-examine him.

In fact, during the preliminary hearing, counsel for Mr. Fiorino specifically underscored the importance of exercising her full opportunity to cross-examine this witness, mentioning the possibility that “for health or other reasons”, he might not be available to testify at trial. [3] [ 4 ] Some relevant disclosure was received after the preliminary inquiry. However, the accused do not contend that this late disclosure impaired their opportunity to cross-examine the witness.

This position is consistent with the caselaw applying section 715(1) , which focuses the inquiry of whether or not there was “full opportunity to cross-examine”, on evidence of improper restriction or curtailment of the cross-examination during the hearing. [4] Discovery of new information, unavailable at the preliminary hearing, which could have been useful in cross-examination does not affect the “full opportunity to cross-examine” requirement of 715(1). [5] However, the issue of late disclosure will be relevant to the submissions regarding trial fairness. [ 5 ] The accused contest the admission of the evidence on the grounds of the unfairness it would cause, in part because of the late disclosure and essentially due to the alleged extreme weakness of Mr.

Ouellet’s testimony, and its tenuous, if not nonexistent, probative value. [ 6 ] Counsel for Mr. Di Marzio and for the prosecution have provided the Court with very detailed written submissions. All parties presented oral arguments in the course of a two-day hearing on the application. Mr. Fiorino provided considerable additional documentation to support his contention that the evidence of Mr. Ouellet is wholly unbelievable. It is unnecessary for the Court to summarise here all of the details of the numerous contradictions in Mr.

Ouellet’s several versions of the facts; the specific lies he told- some of which he admitted; his singular attitude regarding some sort of vigilante justice; his own involvement in fraudulent activity for

which he was granted immunity from prosecution; his problematic behavior while testifying (for example, rambling on with his answers, providing unresponsive answers, inappropriate body language, etc.); and the payments he received in exchange for collaborating with the authorities. Suffice it to say that the accused have provided extensive evidence supporting the frailty of Mr. Ouellet’s evidence, including his possible motives to fabricate evidence against them, as well as numerous specific examples taken from his statements to the RCMP and from his testimony.

These are worthy of concern and require careful scrutiny, should a trier of fact hear this evidence. [ 7 ] The accused submit that Mr. Ouellet is so unreliable and so lacking in any credibility that it would be patently unfair to read in his prior testimony without the opportunity to cross-examine him before the trial judge. This unfairness is compounded by the fact that some information which could have been used to cross-examine him was either disclosed after the preliminary hearing, or so buried within the disclosure provided that it escaped the attention of counsel at that time.

Although there is no allegation of bad faith with respect to the late disclosure, this does not alleviate the unfairness that the accused claim would be caused by the inability to cross- examine on this additional evidence. [ 8 ] Mr. Di Marzio adds that in his case, there is no corroborating evidence whatsoever, thus rendering the issue of unfairness even more glaring, given the extreme weakness of Mr. Ouellet’s testimony and insufficient confirmatory evidence for a Vetrovec caution. A trial in these circumstances, according to Mr.

Di Marzio, would not only be unfair, but considering how unlikely it would be for the Crown to ever meet its burden of proof beyond a reasonable doubt, the cost-benefit analysis also commands the exclusion of the evidence. [ 9 ] In the case of Mr. Iammarrone, in addition to the trial fairness arguments presented jointly by all three accused, it is argued that the weighing of prejudice against probative value tips the scales even more heavily in favor of exclusion of this evidence, as it only marginally implicates Mr.

Iammarrone and thus is only slightly relevant. [ 10 ] According to the accused, this hearsay evidence is so untrustworthy that it should not be admitted pursuant to

section 715 nor under the principled exception to hearsay. By either analysis, they ask the Court to exercise its discretion to exclude this prior testimony. [ 11 ] Although the Crown takes issue with some of the examples relied upon by the accused to attack the credibility of Mr. Ouellet, their arguments are focused on the timing of the scrutiny of his credibility. They submit that all of the alleged inconsistencies, contradictions, motives to fabricate, odd behavior and false allegations are apparent from the record itself.

The trier of fact will be in the best position to assess the testimony, in the context of the evidence as a whole. They emphasize that the issue here is one of threshold as opposed to ultimate reliability and they contend that this is not one of those “relatively rare cases” where the evidence should be excluded. Alternatively, the Crown suggests that this evidence could also be admitted pursuant to the principled exception to hearsay: the necessity requirement is admitted and the reliability is grounded in the procedural guarantees of trustworthiness.

GENERAL PRINCIPLES GUIDING THE APPLICATION OF S. 715(1) Cr.C . [ 12 ] Mr. Ouellet testified and was cross-examined at the preliminary hearing on these same charges.

However, introducing such testimony at trial for the proof of its contents is hearsay, given the absence of the contemporaneous opportunity to cross-examine him. [6] Although hearsay evidence is presumptively inadmissible, [7] the legislator has provided an exception to the rule in section 715(1), allowing for the admission of certain prior testimony. [ 13 ] Under the common law “principled exception to hearsay”, hearsay evidence may be admissible where the contents of the statement are sufficiently trustworthy or where there is a sufficient substitute basis for testing the evidence. [8] In a section 715(1) application, the statutory requirements provide the substitute basis for testing the evidence.

The usual hearsay dangers are overcome by the availability of the preliminary hearing transcript, and a prior opportunity to cross-examine the witness in a hearing that dealt with essentially the same issues. [9] [ 14 ] Once the statutory requirements for admission under 715(1) have been met, the application judge retains discretion to exclude the previous testimony in circumstances where its admission would operate unfairly to the accused, due to the manner in which the evidence was obtained, and/or unfairness to the trial itself.

In the present case, it is only the latter which is at issue. [ 15 ] As the Supreme Court of Canada explained in R. v . Potvin , [10] the exercise of this discretion requires that the judge weigh the “two competing and frequently conflicting concerns” of: (1) the fair treatment of the accused, and (2) society’s interest in the admission of probative evidence to get at the truth of the matter at issue.

The circumstances in which the admission of such prior testimony would operate unfairly to the accused will be “relatively rare.” [11] [ 16 ] In a recent case applying section 715(1), the Ontario Court of Appeal in R. v. Saleh , summarized the statutory requirements and the scope of the discretion to exclude evidence. The Court also addressed the overlap of section 715(1) and the principled exception to the hearsay rule, explaining that the principled approach to the hearsay rule may “have a place” in the

interpretation and application of section 715(1) although it may exert a greater influence on the issue of necessity than that of reliability.

The case of Saleh reminds us that section 715(1) is not an “exhaustive code governing the admissibility of preliminary inquiry testimony at a subsequent trial.” [12] Thus, where the statutory requirements of 715(1) are not met, the trial judge may consider admissibility instead under the principled exception to the hearsay rule. [13] [ 17 ] Finally, and most importantly for the present case, compliance with section 715(1) does not alter the gatekeeper function of the trial judge to ensure that “only relevant, material, and admissible evidence gets before the [trier of fact].” [14] Similarly, the application of section 715(1) does not alter the general rules of admissibility, such as the discretion to exclude evidence where the prejudicial effect exceeds its probative value, evidence that involves an inordinate amount of time not commensurate with its value, or evidence whose effect on the trier of fact would be out of proportion to its reliability. [15] [ 18 ] In determining whether the admission of evidence may render a trial unfair, the judge must be mindful of the extent and meaning of “trial fairness”.

As summarized by the Ontario Court of Appeal in Saleh : […] a fair trial is a trial that appears fair, both from the perspective of the accused and from the perspective of the community. A fair

trial is not the most advantageous trial possible from the accused's point of view. A fair trial is not a perfect trial. A fair trial is a trial that satisfies the public interest in getting at the truth, while at the same time preserving procedural fairness to the accused. [16] (References omitted) [ 19 ] Because the accused rely considerably on the decision in Saleh , it will be useful to review that case more fully. [ 20 ] In the murder trial of Saleh, the Crown sought to introduce the preliminary inquiry transcripts of two witnesses, Y and E, who both refused to testify at trial.

Y had provided several statements to the police, revising his versions of the events, prior to testifying at the preliminary inquiry. He later testified once more before the Parole Board. E also testified after the preliminary hearing, in three related proceedings, not involving Saleh, providing a different version of the events. Some of E’s testimony was in French and could not be translated for the English-speaking jury.

The trial judge refused to admit E’s testimony because the new evidence that could be useful to compromising E’s initial preliminary inquiry testimony could not be put to the jury in any meaningful way.

However, he admitted the preliminary hearing testimony of Y, ruling that the contradictory evidence that emerged from his later testimony could be put to the jury. [ 21 ] The Ontario Court of Appeal held that the trial judge committed several errors in his decision to admit Y’s testimony, thus warranting an order for a new trial. [17] [ 22 ] First, he failed to consider the manifest unreliability of Y- whose testimony was the only first-hand account about the murder- in assessing whether the admission of his evidence would operate unfairly to the accused.

This unreliability of Y stemmed from several factors, notably, that Y had been charged with the same murder as the accused, had motive to blame others, and specifically to blame Saleh, and had given several accounts of the events which evolved markedly over time. [ 23 ] Second, the trial judge did not consider the impact on fairness of the inability to cross-examine Y on material obtained after the preliminary hearing. [ 24 ] Third, the trial judge failed to consider the effect on the fairness of the trial of including the evidence of Y, while excluding the evidence of E, since admitting one without the other deprived the jury of assessing the inconsistencies between these two versions. [ 25 ] Fourth, the trial judge failed to consider a cost-benefit analysis of Y’s evidence to determine whether its value to the correct disposal of the allegations contained in the indictment exceeded its cost to the litigation process.

APPLYING THE PRINCIPLES TO THE PRESENT CASE [ 26 ] Two questions will be addressed in applying these principles to the present case:

a) Should the Court exercise its discretion to exclude the testimony of the informant Ouellet to prevent unfairness to the accused?

b) Does the cost-benefit analysis call for exclusion of the evidence?

a) Should the Court exercise its discretion to exclude the testimony of the informant Ouellet to prevent unfairness to the accused? [ 27 ] This question will be answered with reference to the grounds of unfairness alleged by the accused, namely:

i) the lack of credibility of the witness; ii) the late disclosure; iii) the hearsay dangers; and iv) the inability to assess the evidence.

i) Trial fairness and the credibility of the witness [ 28 ] The jurisprudence applying

section 715 establishes that “the crucial nature of the credibility of the witness whose evidence is tendered for admission is relevant to the exercise of this discretion.” [18] In the present case, there are serious grounds to question both the credibility and the reliability of Mr. Ouellet’s testimony. With respect to credibility, the accused have pointed out several lies, contradictions as well as motive to fabricate. With respect to reliability, there seems to be little or no evidence specifically confirming his testimony. [ 29 ] The accused refer to the example in the case of R. v.

Caouette , [19] where the application judge exercised his discretion to exclude evidence tendered pursuant to section 715(1) because there was no value whatsoever to the testimony sought to be introduced. In Caouette, the witness in question was a friend and supposed accomplice of the accused. Not only did he refuse to testify at trial, even at the preliminary hearing he had recanted his police statement that the Crown wished to use as evidence against the accused.

At the preliminary hearing, the Crown had to resort to cross-examining their witness pursuant to section 9(2) of the Canada Evidence Act in an effort to elicit the version he had given the police, which version of facts he claimed was entirely dictated by the police who threatened and pressured him.

In these circumstances, it is not surprising that the trial judge found that it was “facile de constater que sa crédibilité est nulle” [20] and that the Crown would not be able rely on any part of the witness’ testimony which had no probative value at all. [21] [ 30 ] The accused in the present matter were able to show numerous examples seriously affecting the credibility and reliability of Mr. Ouellet. It is not however, similar to Caouette, where even within the testimony sought to be admitted, the witness recanted any and all evidence tending to incriminate the accused.

The witness here is not recanting nor refusing to testify (as in Saleh , for example) but is unavailable because he is dead. The evidence of Mr. Ouellet does certainly contain many contradictions as well as important reasons to question the truthfulness of his account. This is not unlike the evidence adduced in many criminal trials where the Crown relies on the testimony of an informant or an accomplice turned state agent. The testimony of Mr.

Ouellet will, in all likelihood, require a Vetrovec - type caution requiring the trier of fact to scrutinize his version of events and seek confirmatory evidence to support his claims. [ 31 ] It is important to remember that the only issue being decided here is one of admissibility. The ultimate issue of reliability will be left to the trier of fact to be determined in the context of the entirety of the evidence. As stated in R. v . Khelawon : [22]

[…] It is important that the trier of fact's domain not be encroached upon at the admissibility stage. If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury — in a criminal trial, it is constitutionally imperative. If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between "ultimate reliability" and "threshold reliability".

Only the latter is inquired into on the admissibility voir dire . [ 32 ] Given that the trial judge will have the opportunity to properly assess this evidence, and considering that at this preliminary stage, only parts of the evidence to be adduced at trial have been presented, it is fundamental to respect the limited role the application judge plays in determining admissibility, thus maintaining the integrity of the fact-finding process by leaving the question of ultimate reliability to the trier of fact. [23] [ 33 ] Despite the weaknesses this evidence seems to present, it is not a case of a total absence of probative value requiring exclusion in order to prevent unfairness to the accused. ii) Trial fairness and late disclosure [ 34 ] As stated by the Ontario Court of Appeal in R. v.

Lewis : [24] […] Crown's failure to disclose could, in my respectful view, be a factor for the trial judge to consider in assessing whether the proposed evidence should be excluded under s. 715 on grounds of trial fairness. On a close call, for example, the Crown's failure to disclose might well tip the balance in favour of exclusion.

Certainly, a flagrant and deliberate breach involving highly relevant information would be more serious than an inadvertent one involving information of marginal relevance. [ 35 ] In the present case, there is no suggestion of any bad faith with respect to the disclosure that was provided after the preliminary hearing. Moreover, the accused readily admit that some of the information they did not use to cross-examine Mr. Ouellet had already been disclosed, but had not yet been fully uncovered given the considerable volume of disclosure provided.

Nevertheless, there are some notes and documents that were not yet provided at the time of the preliminary hearing. [ 36 ] Late disclosure of significant information that could be said to alter the very nature or import of the testimony originally given, or unmask some previously unknown motive of the witness or implausibility of his or her evidence, may well affect trial fairness where the witness is no longer available to be cross-examined on that new evidence. In the present case, although the accused have explained how they would have used these new elements to further cross-examine Mr.

Ouellet, and perhaps uncover further lies, there is no new information of such significance that it could considerably impact the nature of his testimony, nor the tools useful to his impeachment. iii) Trial fairness and hearsay dangers [ 37 ] The issue here is fundamentally about the admissibility of hearsay evidence and the dangers associated with it.

In addressing the issue of the admission by the trial judge of preliminary hearing evidence pursuant to section 715(1), the Court of Appeal of Alberta reminds us of “four grave drawbacks” of a hearsay statement: [25] 1. it was not under oath; 2. it was not subject to cross-examination; 3. the content of the statement is open to dispute; and 4. it was given for a different purpose or in a different context than the present litigation. [ 38 ] In the present case, Mr. Ouellet testified under oath, he was cross- examined and there is an accurate transcript of his testimony on these very same charges.

Specifically, the reliability of Mr. Ouellet’s allegations, his perception, memory and sincerity were the subject of extensive cross-examination.

Thus, just as in Alcantara , the four “grave drawbacks” are absent here. [26] Where the usual hearsay dangers are absent, the admission of such evidence will not impair the of the accused’s fair trial interests. iv) Trial fairness and the ability to assess the evidence [ 39 ] The admission of unreliable testimony will not, in and of itself, render a trial unfair, unless, because of the unavailability of the witness, the trier of fact is not able to assess his or her reliability. [ 40 ] There is no general legal authority in Canada for the exclusion of unreliable evidence. As t he Supreme Court states in R. v.

Hodgson , “the admission of evidence which may be unreliable does not per se render a trial unfair.” [27] More recently in R. v. O’Reilly , [28] the Québec Court of Appeal noted that: If Canadian courts had wished to institute a principle of absolute exclusion concerning untruthful witnesses, even those who lie under oath, they had multiple opportunities to do so.

In such situations, depending on the circumstances, the appropriate way to proceed is not always to exclude the witness's testimony, but rather to issue a Vetrovec caution. (References omitted) [ 41 ] The accused have placed great emphasis on their examples tending to establish that the evidence of Mr. Ouellet is so weak, so unbelievable, and so problematic in so many respects, that this case presents one of those rare situations where the admission of the evidence would operate unfairly.

However, the detailed arguments put forward by the accused in support of their position have made it clear that despite the witness’ unavailability, they are not hamstrung in their ability to make persuasive arguments regarding his lack of credibility and the unreliability of his evidence.

[ 42 ] As explained by David M. Paciocco, [29] “hearsay evidence is not excluded because it is prone to be false. It is excluded because there will often be no available means of assessing its truth, rendering its acceptance by a trier of fact arbitrary and therefore unacceptable.” [ 43 ] In the case of R. v . Jones-Solomon , [30] the ability to assess the evidence was an important factor in allowing the trial judge to admit the preliminary hearing testimony of a witness who refused to testify at trial.

In that case, the Ontario Court of Appeal dismissed an appeal from conviction, concluding that the trial judge had properly exercised his discretion pursuant to section 715(1). [31] Despite the contention that the witness in question was too inherently unreliable to allow her evidence to be read in for the jury, the trial judge noted that the jury would have the ability to hear the numerous inconsistencies within the testimony and contradictions between her testimony and the rest of the evidence. The accused was thus not denied the ability to argue that the witness was neither credible nor believable.

He stated: “Since the accused’s ability to make such submissions is not hampered by the reading in of such evidence, the accused’s right to a fair trial will not be adversely affected by the admission of the preliminary hearing evidence.” [32] [ 44 ] In the present case, all of the alleged frailties of Mr. Ouellet’s testimony can be presented to the trier of fact.

The accused are not deprived of any tools with which to impeach his credibility and reliability. [ 45 ] A final common problem associated with hearsay evidence is the trier of fact’s inability to observe the declarant’s manner. [33] In the present case, although the judge will not have the opportunity to observe Mr.

Ouellet on the stand, the complete transcript -and if desired, the audio recording of the testimony [34] will provide an adequate, although not a perfect substitute. [ 46 ] In this case, the ability of the trier of fact to assess this hearsay evidence is not so impaired that it can be said to offend trial fairness.

b) Does the cost-benefit analysis call for exclusion of the evidence? [ 47 ] The evidence of Mr. Ouellet is undoubtedly relevant, even if in the case of Mr. Iammarrone, it is not as crucial to the Crown’s case. In the case of Mr. Di Marzio, the absence of any corroborating evidence may affect the ability of the Crown to prove its case beyond a reasonable doubt. Nevertheless, the cost-benefit analysis does not command the exclusion of this evidence. There is no danger of the trial judge being distracted by this evidence or misapprehending its value.

The time required to hear the evidence is not disproportionate with its value, particularly since the evidence will be presented against both Mr. Di Marzio and Mr. Iammarrone in a joint trial. [ 48 ] The cost-benefit analysis does not call for the exclusion of the evidence. CONCLUSION [ 49 ] In conclusion, the testimony of Mr.

Ouellet does not present a “relatively rare case” commanding the exclusion of evidence “highly prejudicial to the accused and of only modest probative value.” [35] For all three accused, a review of the factors relevant to the 715(1) analysis, including the alleged manifest unreliability of Mr. Ouellet as well as the inability to confront him with elements disclosed after his testimony, leads to the conclusion that the admission of this evidence would not affect trial fairness. The probative value is not so outweighed by any prejudice caused so as to exclude this evidence from the trier of fact.

The cost to the litigation process does not outweigh the value of the testimony. [ 50 ] The determination that this evidence is admissible under s. 715(1) makes it unnecessary to decide whether it would also be admissible applying the principled exception to hearsay.

Nevertheless, it may be noted that the issue of reliability is met here because there are “adequate substitutes for testing the evidence”, [36] providing “a satisfactory basis for the trier of fact to rationally evaluate the accuracy of the hearsay statement.” [37] The balancing of prejudice against probative value would not be any different under that test. [ 51 ] FOR THESE REASONS , the application to introduce the preliminary hearing testimony of Mr. Ouellet pursuant to section 715(1) Cr.c. is allowed. __________________________________ LORI RENÉE WEITZMAN, J.C.Q.

M e Alexis Gauthier M e Jérémy Van Doorn Prosecutors for the Director of Public Prosecutions M e Michèle Meleras M e Isabel J. Schurman

For: Francesco Fiorino M e Pascale Girard M e Julio Péris For: Nicola Iammarrone M e Robert Israel For: Gennaro Di Marzio Dates of hearings: September 18 and 20, 2018