R. v. Keir, 2013 ONCJ 377

COURT FILE No.: Citation: R. v. Keir , 2013 ONCJ 377 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KEON KEIR Ruling On Admissibility of Out of Court Statements P. Alexander............................................................................................................... for the Crown A.

Lockhart............................................................................................................... for Keon Keir Bacchus J.: [ 1 ] In the early morning hours of March 11, 2012, police received a 911 call from Terry Solomon who was calling from the bathroom of apartment 704, 200 Chalkfarm in the City of Toronto. Police and emergency service personnel attended the scene and located Mr. Solomon in the hallway inside apartment 704, between the bathroom and the front door of the unit. Mr. Solomon was observed to be bleeding profusely from his eye and face.

The injury to his eye was so severe that it appeared that his eye was dislodged from its socket. [ 2 ] Prior to the arrival of the police and emergency services, Mr. Solomon had a conversation with his cousin who is also his close friend, Bertie Jean. When the police arrived, Mr. Solomon briefly spoke with police constable Everett Dunbar regarding how he sustained this injury. Police Constable Dunbar recorded their conversation in his memo book. Mr.

Solomon was then transported to Humber River Regional Hospital where he provided a statement to Police Constable Neil Hudson which was taken down in writing in his police memo book. This statement was reviewed, initialled and signed by Mr. Solomon. [ 3 ] Keron Keir is charged with Assault Causing Bodily Harm and two counts of Assault with a Weapon arising from incidents which occurred in apartment 704. The trial of this matter commenced on May 10, 2013. Mr. Solomon has left the country and is not available to testify at trial. [ 4 ] The crown seeks an order of this court admitting three statements Mr.

Solomon made about these events for the truth of their contents: - Utterances made to his cousin Bertie Jean; - Utterances made to Police Constable Everett Dunbar; - The statement of the complainant made to Police Constable Noel Hudson (exhibit B). [ 5 ] The common feature of these statements is that in each of them the complainant identifies the defendant as the person who hit him with a baseball bat and caused the injury to his eye. [ 6 ] The crown submits that the route of admissibility for these hearsay statements is grounded either in their categorization as res gestae /spontaneous utterances by the complainant, or via the principled exception to the hearsay rule based on necessity and the inherent reliability of the statements. [ 7 ] The defense argues that none of the statements are admissible.

The defense submits that if the court finds otherwise, the prejudicial value of admitting the statements outweighs their probative effect and the court should exercise its discretion to exclude the statements. Alternatively the defense argues that as a matter of trial fairness, should this Court admit any or all of these statements, it should also admit the recording of Mr. Solomon’s 911 call (exhibit A on the voir dire ) which is an inconsistent statement in which he reports that he does not know who assaulted him.

APPLICABLE LEGAL PRINCIPLES [8] Out-of-court statements of a witness are presumptively inadmissible. However, such statements may be admissible eitherpursuant to the traditional exceptions to the hearsay rule or pursuant to the principled exception to the hearsay rule, if they meet the testof necessity and threshold reliability. R v. Khelawon (2006), 2006 SCC 57 , S.C.J. No.57. [9] When considering either the principled exception or whether the statement is admissible as a spontaneous utterance, theadmission of the statement must be necessary in that the statement maker is unavailable to participate in the courtroom testimony. [10] A broad

interpretation of the necessity criterion has consistently been applied in cases where the witness though not dead,permanently ill, or disabled, was simply unable to participate in the trial process. For example, in R. v. Nicholas (2004), (ON CA), 182 C.C.C. (3d) 393, the necessity criterion was met as the witness was unable to testify due to the post- traumaticstress disorder she was experiencing. In R. v. Manuel (2013), ONSC 2494, the necessity criterion was met as the witnesses thoughphysically available, were no longer cooperating with the police investigation and were now off side. [11] Although necessity is often not challenged, a reasonable

interpretation of the application of the necessity requirement inthese decisions is that there is no requirement that the state of the witness’ unavailability be permanent, or even necessarily beyond thecontrol of the witness, as in the situation of recanting witnesses. [12] Most recently, the majority of the Supreme Court of Canada in R. v. Baldree

(2013) S.C.C. 35, endorsed what appears to bea strict application of the necessity criterion in a ‘drug buy’ case, where there was no evidence that the police attempted to locate themystery purchaser who had called in his order for drugs to the defendant’s phone.

In determining that the necessity criterion had notbeen met in that case, the Court focussed its analysis on whether the party seeking admission of the evidence made all reasonable effortsto secure the evidence. [13] However, Moldaver, J., although concurring in the result with the majority, wrote separately on the issue of necessityendorsing a broader based approach to the issue focussing primarily on threshold reliability: “…the necessity criterion is not meant tostifle the admission of reliable evidence. Rather, it is “founded on society’s interest in getting at the truth” (Khelawon at para. 49)”.

Baldree supra, para. 109. Justice Moldaver concluded that: “If evidence is reliable, it should be admitted because its reception will benecessary in order to get closer to the truth”. Baldree, supra para. 81. [14] In this case, the complainant left Canada approximately 5 months prior to the trial date to get married and is living in StLucia. According to the evidence of Bertie Jean, there is the possibility that Mr. Solomon might return to Canada in a few years. Thereis no evidence before me of any efforts made by state authorities to contact Mr. Solomon in an attempt to secure his voluntary return forthe trial.

However, there is also no evidence that this application is brought for expedient purposes; there is a good faith basis to believethat the complainant is not available for trial. [15] I find that there is no bar in the circumstances of this case to analysing the inherent reliability of the utterances/statementswhich the crown seeks to rely on; the fact that the witness is unavailable to testify in these proceedings, given the circumstances, meetsthe threshold requirement for necessity.

Spontaneous Utterance/Threshold Reliability [16] Central to the definition of spontaneous statements is the notion that the statement in question has been made incircumstances where there is little to no possibility for collusion or fabrication, and while the statement maker is still experiencing theongoing stress of the recent traumatic event. R. v. Clark (1983), (ON CA), 42 O.R. (2d) 609; R. v. Hall, 2011 ONSC5628 , [2011] O.J.

No. 5109. [17] With respect to the admission of out-of-court statements via the principled approach, the party seeking its admission mustsatisfy the Court that the statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis forevaluating the truth of the statement. Khelawon supra. [18] The question is whether there are any real concerns about the truth of the statement because of the circumstances in which itcame about, or whether the accuracy of the statement can adequately be tested by way of adequate substitutes for cross examination.

Thetrial judge can consider corroborating evidence when deciding if the threshold test has been met. Hall, supra para. 27 [19] In Manuel supra, the Court held citing Khelawon that: …the central concern underlying the rule against hearsay is the inability to test the evidence.

The reliability requirement is aimed atidentifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence…the ability to cross examine thedeclarant at the trial on the earlier statement substantially alleviates the difficulty in assessing the earlier out of court statementparticularly where an accurate record of the statement can be tendered in evidence… However, where reliability is dependent on theinherent trustworthiness of the statement the trial judge must enquire into those factors tending to show that the statement is true or not.(para. 14) [20] In considering the admissibility issue at this stage, the court although entitled to take into account external factors in relationto the statement’s reliability, is only concerned with threshold reliability.

The ultimate reliability of the statement is a matter for the trierof fact. ANALYSIS Utterance to Bertie Jean [21] It is clear that Mr. Jean’s interaction with Mr. Solomon was proximate in time and location to the event which caused the

injury to Mr. Solomon’s eye. Mr Jean testified that he saw Mr. Solomon on the phone and that Mr. Solomon told him that he had just called 911. It is clear from the recording of the 911 call tendered as exhibit B on this voir dire that the fight was still raging in the apartment as Mr. Solomon was speaking to the 911 operators; sounds of screaming and yelling can be heard quite distinctly in the background of the call. In addition, Mr. Jean testified that Mr. Solomon’s eye was bleeding profusely; no police or emergency personnel had as yet attended the scene when Mr. Jean and Mr.

Solomon spoke. [ 22 ] The contemporaneous nature of Mr. Solomon’s utterance to Bertie Jean to the event which caused his injury is certainly a factor consistent with reliability. In addition the 911 call which precedes this statement confirms Mr. Solomon’s state of mind as coherent, again consistent with a reliable account. In addition, there is no evidence of animus or a motive to fabricate on Mr. Solomon’s part and aspects of Mr.

Solomon’s statement in respect of the identity of the assailant are consistent with his statement to officers Dunbar and Hudson, as well as, generally, to the physical evidence of the bat seized which appeared to have blood on it. [1] [ 23 ] That being said there are a number of factors present which are inconsistent with a finding that the statement to Mr. Jean is inherently reliable. These factors include that there is no record of what Mr. Solomon said to Mr. Jean, as well as Mr.

Jean’s admission that he consumed 6 or 7 beers. [ 24 ] Of the greatest concern in considering threshold reliability in this case is the fact that Mr. Jean was a party to the altercation and on his own evidence had to be held back from the fight involving the defendant, a fight, which according to Mr. Jean, the defendant had initiated against him. In addition, on Mr. Jean’s own evidence he was the individual who was asked to leave the apartment. Adding to concerns about the potentially partial and interested character of Mr. Jean as the statement taker is the fact that both Mr. Solomon and Mr.

Jean are related to each other and appear to be related to the home owner. At the very least Mr. Solomon, if not a relative, was an occasional tenant of Mr. Jean’s cousin at this residence, while the defendant was a visitor to the home. In all the circumstances, the court cannot conclude that the statement Mr. Solomon purportedly made to Mr. Jean was recorded in circumstances which are independent. [ 25 ] Unlike the situation in R. v. Hartley, [2000] O.J. No. 5635 , where the victim left her home to seek assistance from her friend who was not present when she was assaulted, Mr.

Jean was involved and therefore an interested party in the events that lead up to receiving the statement from Mr. Solomon. [ 26 ] As such, I find that there are a number of factors which lead me to conclude that the circumstances upon which this statement was received do not meet the criterion of inherent reliability. I am not satisfied that there was little to no possibility for collusion or fabrication when Mr Jean returned to his cousin’s apartment and spoke with Mr. Solomon, also his cousin, in the bathroom, before the police and emergency personnel arrived on scene. [ 27 ] The utterances to Mr.

Jean are not admissible. Utterance to Police Constable Everett Dunbar [ 28 ] Constable Dunbar arrived on scene and spoke to Terry Solomon. Officer Dunbar testified that he asked Mr. Solomon what happened and he advised him that he had tried to break up a fight between the defendant and Bertie Jean and that in the course of the fight “Keron” hit him with a baseball bat. [ 29 ] Again some of the circumstances surrounding Mr. Solomon’s utterance to Officer Dunbar are consistent with threshold reliability: the contemporaneity of the statement noted by the fact that Mr.

Solomon’s eye was still bleeding, that he was still in the apartment in which the officer observed broken beer bottles and furniture in disarray, consistent with the fight having recently concluded; that the statement was made to a police officer; that Mr. Solomon appeared sober and coherent; and that Mr.

Solomon’s statement to Officer Dunbar was consistent with 2 other statements attributed to him in respect of the identity of the assailant. [ 30 ] In admitting the statements pursuant to the principled exception to the hearsay rule, the court in Manuel supra, held that the lack of an oath was alleviated by the fact that the witnesses said they were being truthful when they gave their statements and acknowledged that there were consequences to not telling the truth. In addition the witnesses had been cross examined and had acknowledged the accuracy of what was recorded.

The court in Manuel found that there was no opportunity for collusion amongst the witnesses prior to making the statements in question. [ 31 ] That is not a conclusion that I can come to on the evidence before me. The lack of any caution to Mr.

Solomon in respect of the consequence of giving a false statement, the fact that the statement was not reviewed and acknowledged by him as true, and the timing of the statement made proximate to his conversation with Bertie Jean, leads me to conclude that the statement is inherently unreliable. [ 32 ] I make no finding of fact nor is there any evidence that collusion did occur. However, the fact that there was certainly the opportunity for collusion between Mr. Solomon and Mr. Jean is sufficient to undermine a suggestion that the statement is inherently reliable.

There is nothing in the way in which the statement was made which addresses or alleviates this concern. [ 33 ] The utterance to Officer Dunbar is not admissible. Statement to Police Constable Noel Hudson [ 34 ] At 3:23 a.m., the complainant was being treated at the hospital when he gave a statement to Officer Noel Hudson which the officer recorded in his memo book. Officer Hudson testified that the statement he recorded is verbatim and was reviewed, signed and initialled by Mr. Solomon. [ 35 ] Mr. Solomon was still clearly suffering from his injury and had recently been told that he might lose his eye.

The timing of this statement in my view is sufficiently proximate to the events which caused his injury and traumatic enough for the court to conclude that that the event which caused the injury dominated Mr. Solomon’s mind. I cannot however conclude that the possibility of

concoction has been excluded or so diminished as to be a negligible concern. [ 36 ] Although Mr. Solomon was now away from the scene he was never cautioned about the consequences of not telling the truth; the statement is not video-taped and of course there has been no opportunity to cross examine Mr. Solomon. [ 37 ] Moreover, the substance of the statement although consistent in identifying the defendant as the assailant is materially inconsistent with the evidence of Mr. Jean: Mr. Solomon stated to Officer Hudson that Mr. Jean was hit with the baseball bat by the defendant and that Mr. Jean was present when Mr.

Solomon was assaulted by the defendant; Mr. Jean testified that he was never hit with the bat and denied witnessing what happened to Mr. Solomon. In fact it was Mr. Jean`s evidence that the reason he returned to the apartment was because he was curious about what had happened with Mr. Solomon. [ 38 ] I am not satisfied that circumstantial guarantees of trustworthiness were present in the making of this statement such that it meets the standard of threshold reliability. The statement to Officer Hudson is not admissible.

CONCLUSION [ 39 ] I find that none of the three statements the crown seeks to tender are admissible as either spontaneous statements or via the principled exception to the hearsay rule. [ 40 ] Having so found I will not engage in an analysis of the admissibility of the 911 call. I will only say that as a matter of principle and trial fairness had I admitted any of the statements it seems that admission of the 911 call would have been the appropriate avenue not only to remedy any prejudicial impact, but also to assist in the search for the truth. Date: July 8, 2013 Signed: “Justice Sandra Bacchus”