R. v. Sanderson, 2011 ONCJ 818

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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.: Toronto Region – Metro East Court (Scarborough) DATE: 2011·12·01 Citation: R. v. Sanderson , 2011 ONCJ 818 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ORVILLE SANDERSON Before Justice M. Wong Heard on October 25, 26 and 27, 2011 Reasons on Crown’s Application to Admit Out of Court Hearsay Statement released on December 1, 2011 Peter Fraser .............................................................................................................. for the Crown

Lori Dubin .................................................................................... for the accused Omar Sanderson Wong, J.: [ 1 ] Orville Sanderson pleaded not guilty to charges of Threatening Death, Sexual Assault and Threatening Bodily Harm. The Crown elected to proceed summarily. [ 2 ] This is a ruling on a voir dire on the threshold admissibility of the out of court videotaped statement made by the complainant, A.L., to police on January 13, 2010. A.L. died subsequently on January 25, 2010.

The Crown called 6 witnesses and there were numerous exhibits admitted on consent. [ 3 ] The Defence agreed that, subject to a ruling, the evidence on the voir dire can apply to the trial except for Mr. Sanderson’s videotaped statement to police, which will be subject to a voluntariness voir dire . [ 4 ] Defence counsel does not dispute that the Crown has met the necessity requirement for the admissibility of hearsay evidence.

However, the Defence submits the Court should not admit the statement because there are insufficient indicia of reliability. [ 5 ] The burden of proof on the question of admissibility is on a balance of probabilities. For the following reasons, I am satisfied the Crown has met that burden and A.L.’s out-of-court statement to police will be admitted as part of the Crown’s case. The Law: [ 6 ] Counsel agree that the principles in R.v. Khelawon [1] apply.

The Supreme Court in Khelawon endorsed a functional approach to the evidence and the court is entitled to consider all relevant factors or indicia of reliability or unreliability to determine threshold reliability. [ 7 ] In Khelawon , the Court also stated that the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. First, whether the statement is made in circumstances that speak to its truth and accuracy; and therefore, the statement is inherently trustworthy.

The second way is to show that its truth and accuracy can be tested. [2] In other words, the hearsay evidence is admitted because the trier of fact is in a position to test the evidence and assess its true worth. [ 8 ] In considering whether a statement is inherently trustworthy, the court may consider the following: whether the statement was spontaneous and reasonably contemporaneous with the events, whether the person making the statement had a motive to fabricate and was of sound mental state; whether there is any corroborating evidence; as well as other considerations. [ 9 ] The second aspect of reliability is whether the evidence can be tested and consideration is given to whether there are any substitutes that address the hearsay dangers arising from the lack of oath, presence and cross examination.

The court can consider whether there are any safeguards in place surrounding the making of the statement such as whether the statement was audio or videotaped, made to a person under a duty to record the statement, and did the person know the statement would be publicized. [ 10 ] According to Khelawon , the admissibility inquiry into threshold reliability is not so focussed on the question whether there is reason to believe the statement is true, as it is on the question whether the trier of fact will be in a position to rationally evaluate the evidence.

The search is for adequate substitutes for the process that would have been available had the evidence been presented in the usual way, namely through the witness, under oath or affirmation, and subject to the scrutiny of contemporaneous cross- examination. [3] [ 11 ] In this case, A.L.’s statement to police was videotaped but the formal K.G.B. [4] caution was modified for reasons given by the officer in charge. The Crown submits the reliability requirement has been met because the circumstances in which the statement came about provide sufficient comfort in its truth and accuracy.

Moreover, the Crown submits there is substantial amount of corroborative evidence in the form of testimony and physical evidence to bolster the statement’s reliability. The Crown argues that truth and accuracy can be sufficiently tested by means other than contemporaneous cross-examination. [ 12 ] The Defence argues A.L.’s statement was not under oath and was not subject to a proper K.G.B. caution. The Defence also submits there are insufficient circumstantial indicia of reliability.

Background : [ 13 ] The following background is not disputed: on Wednesday, January 13, 2010, at 8:46 pm, A.L. telephoned 41 Division of Toronto Police Services and made a complaint against her then on again-off again boyfriend, Orville Sanderson. A.L. was 39 years old, separated from her husband, and a mother of a 10 year old daughter. The complainant’s former husband, N.L., testified on the voir dire , that A.L. moved out of the family home in October 2009, but the couple remained on speaking terms. Mr. L. continued to give his former wife money and would occasionally do her laundry. Ms.

L. lived in an apartment and shared custody of their daughter. [ 14 ] Soon after the couple separated, Ms. L. and Mr. Sanderson met. In their videotaped statements to police, both said they met one day when Ms. L. was walking outside a plaza. Mr. Sanderson followed her in his car and asked her for her phone number. The couple began seeing each other soon after although Mr. Sanderson was married.

A.L.’s Statement to Police : [ 15 ] On January 13, 2010, Detective David Ecklund, who was then working at 41 Division, but is currently assigned to the homicide squad, received a call at home as he was preparing to come into work. He was asked to investigate a sexual assault. At 11:23

pm, Detective Ecklund met A.L., who was waiting for him at the front desk of the police station. According to the officer, Ms. L. appeared sober, well dressed, and clean. She did not appear to be suffering from any mental illness or under the influence of any intoxicants. Having viewed the videotape statement of Ms. L., I agree with the officer’s assessment of her appearance and demeanour. [ 16 ] Detective Ecklund understood Ms. L. had called police and that officers had attended her home and received some information. Ecklund could not remember if Ms.

L. had driven herself to the station, but remembered she was alone. [ 17 ] He lead her to a “soft interview” room, described as a large room with a sofa and coffee table: as opposed to a “hard room” which was the more standardized police interrogation room with steel tables and chairs bolted to the floor with a solid metal door. The former room was used for witnesses; the latter for detainees. [ 18 ] The interview was videotaped. The quality of both the sound and image on Ms. L.’s interview was excellent. It reveals the tone of voice and the facial expressions of Ms. L..

I am satisfied the videotape is a complete and reliable record of the taking of the statement and the circumstances in which it was given. [ 19 ] Also, in the room with Detective Eckland and off camera was D.C. Ajay Singh, who took notes. Defence counsel argues that because Officer Sidhu is off camera, the Court cannot be satisfied that he was not gesturing or suggesting answers to Ms. L.. Having viewed the videotape, I am satisfied there is no evidence that Constable Sidhu interfered with the witness. The videotape shows Ms.

L.’s focus was on Detective Ecklund and she responded to his questions in a relaxed and conversational manner. She did not appear to be distracted by Officer Sidhu or anything else. Further, Detective Ecklund, who is a very senior officer, testified he sat mere feet away from Officer Sidhu and would have disciplined him if he saw the officer acting improperly. [ 20 ] Ms. L.’s videotaped statement began at 11:26 pm and finished at 12:06 am.

An oath was not administered because Ecklund testified that he had been taught through various police training courses that sexual assault victims should not be subject to a K.G.B . caution or oath taking because it subjects them to further victimization. Typically, he said, in a sexual assault case the complainant is a female and the interviewer is a male. The witness is being asked to discuss a very traumatic event under difficult circumstances. According to Detective Eckulnd, reading aloud a 2-page caution warning the witness that they might end up in jail if they simply lied to police is “a slap in the face”.

Instead of asking the witness to “open up”, reading the formal K.G.B . caution is telling them they’ll be “locked up”. Detective Ecklund said he was taught through various courses including receiving feedback from victim advocacy groups that the better method is to administer to sexual assault complainants, a “soft” version of the K.G.B . caution: explaining to the witness that they ought not to lie because it is a criminal offence. Detective Ecklund said the goal is to get the point across but in a less intimidating fashion. [ 21 ] In this case, Detective Ecklund advised Ms.

L. that the interview was being videotaped and introduced himself and D.C. Singh as police officers. On page 3 of the transcript of the interview, Detective Ecklund asked Ms. L. if she understood the importance of telling the police the truth. Ms. L. nodded and said “yes”. The officer went further and asked her if she knew it is a criminal offence to obstruct police by making false statements: again Ms. L. nodded and said, “Yes”. The officer repeated that he wanted to be sure that she understood the importance of telling the truth to the best of her recollection: again she nodded and said “yes”.

Finally, the officer gave her an example of someone stating a car was “dark blue” but in fact it was “black”: he would not be concerned about that kind of mistake. Throughout this explanation, Ms. L. listened attentively and responding both verbally and by gesture that she understood. [ 22 ] Ms. L. told Detective Ecklund the following in her videotaped statement: • She met Tony Sanderson (the defendant) on October 2 and they started dating • He was nice to her for the first two weeks and then he threatened her. They had a fight and he said “I’d like to put a bullet in your head”.

He left the apartment, they did not see each other for a couple of weeks, but then they got back together. (Later at page 18 and 19, Ms. L. said “he was gonna put a gun to my head”.) • The worst fight was last Saturday. • She had been in the hospital for high blood pressure and had just been discharged. • At page 28, Ms. L. said she was on medical leave from work. The first leave started on October 18 th until December 1 st . The second medical leave began just the past Friday. • She returned home on Saturday and Mr.

Sanderson accused her of having been with other men: he asked her “who’s been touching you?” He told her to take a “fucking shower” because he wanted to have sex with her. • She was lying down. Tony came towards her, grabbed the collar of her shirt (3/4 length green shirt) and pulled her shirt and it tore down the middle. He grabbed her jogging pants and ripped them from the crotch right down to the leg. He was on top of her screaming that he was going to punch her “f’ing face in”. She begged him to stop and she knew he wanted to have sex with her.

Tony stopped. • Afterwards she called her ex-husband and a friend. She did not shower or change her clothing; she just covered herself up and lay in bed. • She did not know the time because she was “in and out of consciousness” and slept most of the day. She was just “out of it” because of the blood pressure pills given to her in the hospital, her regular pills, water pills and blood thinners. • Her ex-husband came over right away and saw her condition. He advised her to call the police but she was too scared.

She thought her husband came over later before he went to work. • Tony (the defendant) began to contact her again on Monday and Tuesday, and they started going out again.

• However, on that day (Wednesday January 13 th ), Ms. L. said she met a man in the apartment elevator and when he asked, she had given him her phone number. She thought it might be nice to go for coffee together. • Five minutes after she returned to the apartment, Tony called and he was very angry because the man in the elevator turned out to be his friend, Chris. • That night, her niece picked up the phone and it was Tony, who was screaming and swearing on the phone. Ms. L. said Tony threatened to send his friend’s wife to beat her up. Ms.

L/ said she stopped answering the calls and let them go to voice mail. • She saved four messages on her voice mail. • She no longer felt safe as Tony’s behaviour was too volatile. She feared for her life and that was why she called the police. As well, her niece from Peterborough was visiting with her baby, and Ms. L. was concerned that there were too many people in her apartment, if Tony showed up that evening. Ms. L.’s own daughter was not staying with her. • She met Tony when she was getting her hair done at a plaza and he approached her. Later, he followed her home and asked her for her phone number.

He gave her his number and a couple of days later, she called him. • Ms. L. described her injuries: bruising under her chin and arm, and bruising and scratches to her leg. [ 23 ] Ms. L. then went through in greater detail each of the allegations and about her relationship with Mr. Sanderson. Throughout his interview, Detective Ecklund asked Ms. L. open ended, non leading questions. Ecklund’s demeanour was pleasant and non-coercive. At 12:06 am, approximately a half an hour after the interview began, the officer again asked Ms. L. if what she told him was the truth?

She replied, “Yes”. [ 24 ] According to the officer, Ms. L.’s answers were responsive to his questions. She was articulate, attentive and appeared to understand his questions. Her eye contact was steady and Ms. L. appeared lucid. Having viewed the videotape, I agree with Detective Ecklund’s assessment of the witness. Moreover, I found her answers to be direct and forthright. She did not appear to be emotional or unduly distressed; Ms. L. appeared composed, responsive, and clear headed. [ 25 ] In this case, the circumstances of the taking of the statement are well documented. Ms.

L.’s statement to Detective Ecklund was videotaped in its entirety, in a police station and in the presence of two detectives, who although dressed in civilian clothing, clearly made their authority known to the witness in their initial introductions. I accept the detective’s explanation why he gave Ms. L. a “soft version” of the K.G.B. warning. In K.G.B . [5] , the Supreme Court stated at paragraph 161, the administering of an oath or solemn affirmation should no longer be regarded as an essential safeguard for ensuring the veracity of a statement. Even though Ms.

L. was not read the formal K.G.B. caution, Detective Ecklund told her directly that it was a criminal offence to knowingly make a false statement; and based on the videotape, I am satisfied Ms. L. understood that caution and she appreciated that lying to police was legally significant and might carry sanctions to herself and the accused. [ 26 ] Further, the statement was made three days after the more serious of the allegations – the sexual assault –so there are no significant issues relating to Ms. L.’s memory although she seemed confused about certain dates.

Further, the Crown filed as exhibits, cell phone records, which corroborate some issues relating to chronology and timing. [ 27 ] As for motive to fabricate, which the case law [6] states Courts ought to consider especially where the declarant is not available for cross-examination, I find there is no suggestion that Ms. L. was angry or vindictive towards Mr. Sanderson. For example, there is no evidence that Ms. L. wanted to get Mr. Sanderson in trouble with his wife: it appears that Ms. L. may not have even known Mr.

Sanderson was married and no suggestion that she had made previous threats to get him into trouble. Theirs was an on-and-off again relationship of only three months. According to her statement, the couple would break up but then get back together within hours or days. [ 28 ] There is no evidence that Ms. L.benefitted by making a false statement such as custody of children in a pending family law proceeding. Also, there is no evidence that Ms. L. was motivated by another person with a grievance against the accused. Ms.

L.’s ex-husband seemed accepting of their separation, and as I will later review, N.L. knew his ex-wife was seeing someone else but continued to help her with modest financial support and doing some of her chores. [ 29 ] The officer agreed with Defence counsel in Cross Examination that he did not ask Ms. L. why she was slipping “in and out” of consciousness after the alleged sexual assault. The officer did not ask her what medication she was taking and why she was on medical leave from her place of work.

Nor did he ask her if she had consumed any medication or intoxicants prior to coming to the police station. [ 30 ] While there may have been questions Detective Ecklund did to ask Ms. L., I am not satisfied that at this stage of the proceedings that this is a proper basis for the exclusion of the evidence. Any shortcomings to Ms.

L.’s statement relates to the ultimate reliability of her statement. [ 31 ] If the only evidence the Crown were to have called on this application was the videotaped statement of A.L., I would have been satisfied that there were sufficient circumstances of reliability to admit the statement. However, there is substantial corroborating evidence which further bolsters the statement’s reliability: Other Confirmatory Evidence: (a)N.L. [ 32 ] According to Mr. L., on January 10, 2010, the complainant called him around 10 am. She did not sound well and was crying: she asked him to bring her some money and cigarettes.

Mr. L. arrived at 5:00 pm. At first, Ms. L. was reluctant to open her

apartment door and she wanted him to put the money and cigarettes through the mail slot. Eventually she opened the door, and Mr. L. testified his former wife was crying and her clothing was torn. He asked her what happened and she told him. Mr. L. told his wife to call the police, but she refused. Mr. L. told her that that if she needed anything to let him know. [ 33 ] That was Sunday. On Tuesday, Mr. L. went by his former wife’s apartment again, to help her with the laundry. He picked up the laundry and took it home. On Wednesday, he found the torn clothing that he saw A.L. wearing previously.

While washing her clothes, he received a call from Ms. L.. Based on their conversation, Mr. L. brought the torn clothing to the police. (

b) Physical Evidence of Clothing and Injury: [ 34 ] On Wednesday January 13, 2010 at 9:45 pm, Scenes of Crime Officer Lisa Greif was detailed to photograph injuries on A.L. and articles of clothing. Photos of her injuries were consistent with what Ms. L. told Detective Ecklund were her injuries. Also, police seized and photographed a green shirt with a tear around the collar on the right side and a pair of black track pants with a tear down the left leg. Ms. L. advised Detective Ecklund in her statement that Mr.

Sanderson grabbed her by the collar of her shirt and it ripped; and he tore her sweatpants because he accused her of being with other men, and he wanted to have sex with her. [ 35 ] The torn clothing and her physical injuries as noted by the police and N.L. is confirmatory evidence of what A.L. reported in her statement. (

c) Phone calls from Mr. Sanderson to Ms. L.: [ 36 ] Ms. L. told Detective Ecklund that her niece had answered the phone and it was the defendant screaming and swearing. The Crown called M. N., age 24, from Peterborough who testified she was in Toronto and staying with Ms. L.. On January 13 th , Ms. N. testified she arrived at her aunt’s after supper and was unpacking her things when the phone rang. Ms. N. said her aunt handed her cell phone to her to answer. Ms. N. testified she recognized the caller as Mr.

Sanderson because she had spent time with him before when she had stayed in Toronto; as well, she had spoken to him over the phone when he called her before in Peterborough. [ 37 ] According to Ms. N., Mr. Sanderson was on the phone yelling. To paraphrase, Ms. N. said Mr. Sanderson was screaming that it was a friend of his who [you] were talking to on the elevator. The defendant stated that his friend had a wife and that he was going to get her to come down to beat up her up. Ms. N. said the message had nothing to do with her and she assumed Mr. Sanderson thought he was speaking to Ms. L.. Ms.

N. said she did not have a chance to identify herself on the phone because the accused was calling her names and rambling on before he hung up. Ms. N. said she could hear the anger in Mr. Sanderson’s voice and her aunt looked worried. Ms. N. said there were other phone calls that night that neither she nor Ms. L. answered. The voice mail messages had been played back to her that evening. (

d) Voice mail messages: [ 38 ] In her videotaped statement to Detective Ecklund, A.L. told the officer that she had kept 4 voice mail messages left by the defendant. [ 39 ] On consent, the Crown introduced a DVD and transcript of 4 voice mail messages which police retrieved from A.L.’s phone. Mr. Sanderson’s messages and tone fluctuated: In one message, Mr. Sanderson swore and yelled at Ms. L. for meeting “my friend in the fucking elevator”. Later in another message, Mr. Sanderson professed his love for her and threatened that their relationship was over. However, the defendant did call back twice more. He warned Ms. L. and that she was never going to find anyone quite as good as him. (

e) Mr. Sanderson’s Statement to Police: [ 40 ] In R.v. U.(F.J.) [7] , the court held that there were striking similarities between the witness’ statement and the independent statement of her father that the only likely explanation was they were both telling the truth. [ 41 ] On Thursday, January 14, 2010 at 12:53 am, Mr. Sanderson was in a police interview room with Detective Ecklund, having been charged with Sexual Assault, Assault, Threatening Death and Threatening Bodily Harm. Mr.

Sanderson had already spoken to counsel and, for the purposes of the admissibility voir dire , it is admitted the statement was voluntary. Mr. Sanderson spoke to Detective Ecklund until just before 1:48 am. [ 42 ] Mr. Sanderson told police the following: • He was 48 years old. • He works as a candy packer. • Although he could not remember her name, Mr. Sanderson said he had been going out with the complainant for 3 months although he was married. • On Thursday January 14 th , he spoke to Ms. L. because earlier she had given her phone number to a married friend of his named Chris.

He told the complainant that – to paraphrase – “Jamaican women don’t like other women messing with their husbands”. • He told her “I said if I go and tell her she’s gonna come up there and she’s gonna beat the hell out of you”. He said he was “pissed”. Later in his interview, Mr. Sanderson advised police that he told Ms. L., “I’m gonna tell the chick that live underneath you that you sleeping with her man and she’s gonna come up here and she’s gonna knock the daylights out of you”. • He told Ms. L., “I’m totally done. Don’t call me back”.

• Ms. L. had been in the hospital for a nervous breakdown and had been struck by a car two weeks earlier. • They met at a plaza where she was getting her hair done. Then he followed her in his car and he gave her his number. • He denied telling her two weeks after meeting that he would “put a bullet in her head”. • He denied demanding sex from her and tearing her clothing. • Mr. Sanderson was asked about some of Ms. L.’s injuries. He said the injuries were from when she was hit by a car at a crosswalk.

He had difficulty pin pointing the day but said it was perhaps a “Monday” – a week before when she was at work so approximately 2 weeks earlier. According to Mr. Sanderson, Ms. L. called him and said that she was not feeling well. While walking home, she was struck by a car while standing on a sidewalk. At 10:00 pm after he finished work, Mr. Sanderson said he went to see Ms. L., who by then had already checked herself out of the Scarborough General Hospital. Ms. L. told him there was a police report and he told her that she would have to deal with the insurance company the next day. According to Mr.

Sanderson he stayed with her, cleaned her apartment, and cooked her some food. • Since then, Mr. Sanderson said Ms. L. had had 2 nervous breakdowns. • Mr. Sanderson told police that Ms. L.’s clothing was torn two weeks previously on a Saturday, when she was having a seizure and he pulled her clothing while trying to help ambulance attendants lift her on the bed. He said he called 911 that evening and ambulance services attended. The green shirt got ripped trying to lift her but he had no idea how her black stretchy pants got torn. • Mr. Sanderson said Ms.

L.’s niece showed up and then all of “this stuff” happened. • He said Ms. L. took blood thinners, sleeping pills, and “all kinds of drugs”. • Mr. Sanderson repeated he was innocent of all charges. [ 43 ] Mr. Sanderson’s statement to police is strikingly similar to Ms.

L.’s statement in at least two significant ways: the incident with his friend, Chris, in the elevator and later the defendant telling the complainant that he was going to tell Chris’ wife, who would beat up the complainant; as well as the description of the torn clothing, which was later seized by police. [ 44 ] The Crown in this case also called evidence by way of business records on the voir dire , which undermines Mr. Sanderson’s version of events: first, Sergeant Samantha Rozich was asked to check the accident registry system – known as CARS – Centralized Access and Registry System.

The name “A.L.” was not reported in any vehicle collision case since the year 2000. [ 45 ] Also, James Russell, Superintendant of Toronto EMS – Emergency Medical Services – testified that he checked all ambulance call reports dating back to December 2009 through to January 25, 2010, and there were no reported calls matching the name “A.L.” or her apartment number at her building. [ 46 ] It would appear that Mr. Sanderson’s explanation for Ms. L.’s injuries and torn clothing has been substantially undermined by the Crown.

Conclusions: [ 47 ] I am satisfied that circumstances under which A.L. gave her videotaped statement to police were such as to guarantee its reliability, irrespective of the unavailability of cross examination. “Guarantee”, as the word is used in the phrase “circumstantial guarantee of trustworthiness”, does not require that reliability be established with absolute certainty.

Rather it suggests that where the circumstances are not such as to give rise to the apprehensions traditionally associated with hearsay evidence, such evidence should be admissible even if cross examination is impossible. [8] [ 48 ] I find the Crown has satisfied the burden of proof and the hearsay statement of A.L. will be admitted on this trial as part of the Crown’s case at Mr. Sanderson’s trial. Released: December 1, 2011 Justice M. Wong

Note: On December 1, 2011, Justice Wong delivered this judgment orally and inadvertently referred to in paragraph 19 “Detective Sidhu” as “Detective Singh”, and at paragraph 44 “Sgt. Rozich” as “Sgt. Rozier”. These written reasons reflect the proper spelling of those two officer’s names.