R. v. Al-Rassi, 2013 NSSC 204

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Al-Rassi, 2013 NSSC 204 Date: 20130703 Docket: CRH 396767 Registry: Halifax Between: Her Majesty the Queen v. Adnan Al-Rassi LIBRARY HEADING Restriction on publication:

Section 486.4 of the Criminal Code of Canada Judge : The Honourable Justice Peter P. Rosinski Heard: June 18, 2013 in Halifax, Nova Scotia Subject: Hearsay - Principled exception to hearsay rule - regarding the preliminary inquiry evidence of a complainant in a sexual assault trial

Summary: Complainant testified at trial that accused massage therapist sexually assaulted her at the end of massage session. At the preliminary inquiry she had answered in cross examination that she was “ pretty much asleep ” at end of massage session. At trial she was adamant that she never actually fell asleep.

Defence sought, in part, to introduce her preliminary inquiry evidence that she was “ pretty much asleep ” to provide evidentiary foundation for proposed expert opinion evidence that, in such a near sleep state she may have genuinely but mistakenly believed that she saw the accused commit sexual assault due to perceptual disturbances known as hypnopompic hallucinations. -2- Issue: Is the preliminary inquiry evidence of the complainant admissible as an exception to the hearsay rule? Result: Either the proposed evidence is not “ hearsay ” or is not “ necessary ” under the principled exception to the hearsay rule.

Moreover, the prejudice of admitting it substantially outweighs its probative value.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. Al-Rassi, 2013 NSSC 204 Date: 20130703 Docket: CRH 396767 Registry: Halifax Between: Her Majesty the Queen v. Adnan Al-Rassi Editorial Notice Identifying information has been removed from this electronic version of the judgment. Publication Ban:

Section 486.4 of the Criminal Code of Canada Judge: The Honourable Justice Peter P. Rosinski Heard: June 18, 2013, in Halifax, Nova Scotia Oral: June 19, 2013 Written Decision: July 2, 2013

Counsel: Kimberley McOnie, Crown Donald C. Murray, Q.C., Defence By the Court: BACKGROUND [1] The accused is charged with a sexual assault upon J. L.. The allegation is that on September 6, 2011 during the course of amassage, the accused masturbated himself to ejaculation, and deposited his ejaculate upon the naked body of Miss L. while on a massagetable. [2] The Crown’s evidence to date has included the evidence of J. L..

She had given a verbal outline of the allegation toConstable Marshall Williams on September 7, 2011, as well as a statement to Constable Jason Withrow on September 12, 2011, andtestified at a preliminary inquiry on June 8, 2012. At trial she insisted that she at no time was asleep, whether during, or after, themassage, before she showered at the massage clinic. [3] The defence wishes to have put to the jury, for the truth of its contents, certain portions of the preliminary inquiry transcriptevidence of J. L., in which she agreed in cross examination that she was “pretty much asleep” at the end of the massage.

The defencewould then have the Court instruct the jury that the use to be made of such preliminary inquiry transcript evidence be as suggested byJustice Jenkins in R v. Crosby 2003 PESCTD 78 , 2003 PE SCTD 78 at paragraphs 48 and 49. [4] In part, Justice Jenkins proposed to instruct the jury there as follows: 48 - The witness has testified in direct examination and is being cross examined. He also made these statements which are coming intoevidence within his cross examination. It is important for you to understand that both the testimony and the statements can be used asevidence of what happened.

You may consider both the testimony and the statements as evidence of what he said happened actually tookplace. You may compare. It is up to you to decide which, how much or how little, how much or little of either or any of them you willbelieve a rely upon in deciding the case. You are the sole finders of fact. You can give either or any of them or any parts of them as muchor as little weight as you decide.

Assessment of the evidence is your job. 49 - As mentioned at the opening in deciding how much to believe, accept or rely upon, you should apply the same process ofobservation and assessment of the evidence as you do with any other witness or evidence. You should also consider the fact, nature andextent of the differences that you find between what the witness said or says in court and what he said in the earlier statements and hisexplanations in deciding how much or how little you will believe or rely upon, his testimony and the statements in evidence.

You shouldconsider carefully the circumstances in assessing the credibility of the prior inconsistent statements relative to the witness’ testimony attrial. [5] The defence also relies for such authority upon R v. Eisenhauer (1998) 1998 NSCA 60 , 123 CCC (3d) 37 NSCAper Cromwell JA [as he then was] particularly paragraphs 40 to 93. [6] I note that the defence also suggests that the evidence may be put to the proposed use pursuant to Section 10(1) of theCanada Evidence Act. The defence has provided no cases in support of this proposition – in fact cases tend to run to the contrary – seefor example R v.

Campbell (1977) (ON CA), 38 CCC (2d) 6 (Ont. CA). In my view this is likely because that wouldstrain the

interpretation of Section 10(1) beyond its proper boundaries. Moreover in light of the evolution of the hearsay rule, resortingto

Section 10 of the Canada Evidence Act, if available, would essentially be superfluous. LEGAL PRINCIPLES

[7] It is unquestionable that the defence may also rely upon exceptions to the hearsay rule to introduce evidence that the jurymay consider for the truth of its contents – R v. Kimberley (2001) (ON CA), 157 CCC (3d)129 [Ont. CA]. In thatcase and others the Courts recognize that in light of an accused’s entitlement to make full answer defence they will more likely decide infavour of admitting hearsay evidence tendered by the defence under the principled approach, than when it is tendered by the Crown.

The thinking is that in proper circumstances it may be necessary to prevent a miscarriage of justice; however as the court said inKimberley, “those cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tenderedby the defence” – paragraph 80. [8] In the case at bar the evidence proposed is the preliminary inquiry evidence of J.

L., which is fairly regarded aspresumptively reliable – it was made under oath in court, and she was subject to cross examination by the defence. [9] A question arises however about whether the proposed evidence is “necessary” and passes the probative value versusprejudice test. NECESSITY [10] In R v. Khelawon 2006 SCC 57 the Supreme Court of Canada spoke about the principled exception to the hearsay rule.

JusticeCharron for the Court stated at paragraph 34: Hearsay evidence is not excluded because it is irrelevant… Rather as we shall see, it is the difficulty of testing hearsay evidence thatunderlies the exclusionary rule and, generally, the alleviation of this difficulty that forms the basis of the exceptions to the rule... themore recent

definitions of hearsay are focused on the central concern underlying the hearsay rule: the difficulty of testing the reliabilityof the declarant’s assertion… Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemnaffirmation, whose demeanor can be observed by the trier of fact, and whose testimony can be tested by cross examination. We regardthis process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particularconcerns.

The general exclusionary rule is a recognition of the difficulty for a trier fact to assess what weight, if any, is to be given to astatement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear isthat untested hearsay evidence may be afforded more weight than it deserves.

The essential defining features of hearsay are therefore thefollowing: one – the fact that the statement is adduced to prove the truth of its contents and two – the absence of a contemporaneousopportunity to cross examine the declarant. [11] Similarly at paragraph 47 the court stated: The onus is on the person who seeks to adduce the evidence to establish these criteria [necessity and reliability] on a balance ofprobabilities.

In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, orconversely the inability to present reliable evidence, may impact on an accused’s ability to make full answer and defence,… The concernover trial fairness is one of the paramount reasons for rationalizing the traditional hearsay exceptions in accordance with the principledapproach. [12] And at paragraph 49: The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability.

Thecriterion of necessity is founded on society’s interest in getting at the truth.

Because it is not always possible to meet the optimal test ofcontemporaneous cross examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justiceto consider whether it should nonetheless be admitted in its hearsay form…… However because trial fairness may encompass factorsbeyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to excludehearsay evidence where its probative value is outweighed by its prejudicial effect. [13] At paragraph 56, entitled “recognizing hearsay”, the court stated: The first matter to determine before embarking on a hearsay admissibility inquiry of course, is whether the proposed evidence is hearsay.… Recall the defining features of hearsay.

An out-of-court statement will be hearsay when: one – it is adduced to prove the truth of itscontents, and two – there is no opportunity for contemporaneous cross examination of the declarant.

[14] Furthermore, in paragraph 60 the Court said this is about the interplay between the traditional exceptions to the hearsay ruleand the principled approach to the hearsay rule: More recently, this court in Mapara reiterated the continued application of the traditional exceptions in setting out the governinganalytical framework as noted in paragraph 42 above.

Therefore, if the trial judge determines that the evidence falls within one of thetraditional common-law exceptions, this finding is conclusive and the evidence is ruled admissible unless, in a rare case, the exceptionitself is challenged as described in both those decisions. [15] Notably in the case at bar the proposed evidence would not fall within a traditional exception to the hearsay rule because thedeclarant is available for cross-examination. [16] That requirement as a defining feature of hearsay persists in the principled exception to the hearsay rule.

Therefore it isarguable that in the case at bar, where the complainant declarant is available for cross-examination, that the proposed evidence is not“hearsay”.

Rather at its core it is an out-of-court statement of that person, upon which the complainant can be cross examined as to anyinconsistencies between that statement and her testimony in Court. [17] While I am sceptical that the proposed preliminary inquiry evidence is “hearsay” as contemplated by the Supreme Court,nevertheless I realize that the Supreme Court of Canada has said that “necessity” must be evaluated on a qualitative basis, and I willmove on to consider the “necessity” of the proposed evidence assuming it to be properly characterized “hearsay”.

Very recently theSupreme Court has reiterated that its comments in Khelawon apply to express as well as implied hearsay - R. v. Baldree 2013 SCC 34 -see particulary the judgments of the majority per Fish J at paras. 30-32, 68 and 72; and the concurring reasons of Moldaver J at paras. 79-81 and 96-98; and 103. [18] In the case at bar neither counsel put cases to the Court, addressing directly the “necessity” criterion. I note that the SupremeCourt of Canada in R v.

Hawkins (SCC), [1996] 3 SCR 1043 stated in relation to “necessity” at paragraph 71: “Under this court’s principled framework, hearsay evidence will be necessary in circumstances where the declarant is unavailable totestify at trial and where the party is unable to obtain evidence of a similar quality from another source: KGB at page 796.

Consistentwith a flexible definition of the necessity criterion, there is no reason why the unavailability of the declarant should be limited to closed,enumerated list of causes.… But as this court indicated in KGB at pages 797 – 798, the statement of a declarant may still meet thenecessity criterion in limited circumstances where the declarant is not an available in the strict physical sense – see for example R v.Rockey (SCC), [1996] 3 SCR 829 at paragraph 20 per MacLachlan J. 72 – For the purposes of these appeals, it will suffice to hold that the preliminary inquiry testimony of a witness will satisfy the criterionof necessity where the witnesses generally unavailable to testify at trial.

Without restricting the precise content of “unavailability”, thecategories of absence recognized under

section 715 [criminal code] specifically death, illness and insanity, offer a helpful guide to thetypes of circumstances under which it will be sufficiently necessary to consider the admission of the witness’ former testimony. [19] Notably in the Rockey case the “necessity” related to a young child .

Justice McLachlin found that necessity may beestablished based on the incompetence of, or the inability of, the child to testify, or the unreasonableness of having the child testifywhere the traumatic effect thereof would have been significant. [20] In the case at bar , the purported “necessity” of having the preliminary inquiry transcript evidence [I, and counsel, recognizethat strictly speaking the “best evidence” is the audio taped evidence] put to the jury is premised in part on providing a foundation for anexpert opinion by a psychologist, who would testify that if the facts were such that the complainant was in a state of sleep and wakingtherefrom, then it is possible that the complainant may have experienced perceptual disturbances also known as hypnopompichallucinations, which could account for a genuine yet mistaken belief on her part that she saw Mr.

Al-Rassi completely naked beside hertable, hand on his penis and ejaculate on her abdomen. [21] Without the preliminary inquiry evidence of the complainant, in which she testified that she was “pretty much asleep” at theend of the massage, or similar words to that effect found in several other locations in that preliminary inquiry evidence, which the jurythen would be told could be used for the truth of their contents, the defence suggests its full answer and defence would be compromised.

[ 22 ] Assuming that this evidence is “ hearsay ” , I start with the notion that hearsay evidence is presumptively inadmissible. [ 23 ] Moreover, I conclude that given the governing jurisprudence, and the circumstances of this case, it cannot be said that “ necessity ” has been proved on a balance of probabilities. The declarant is available and was cross-examined on those exact preliminary inquiry transcript aspects regarding what level of sleep she experienced, if any, during the massage therapy session.

The complainant ’ s credibility [honesty and reliability] has been tested by contrasting her preliminary inquiry evidence with that of her evidence at trial in this respect. I also observe that Mr. Al-Rassi testified that while he did not enter the treatment room or bathroom again after the organ massage, he noticed the shower running for a lengthy time thereafter, from which the Defence could argue that J. L. was either asleep during that time or was taking a long shower which is at odds with her testimony of a speedy exit from the premises.

Thus there remains some evidence upon which the jury could find that Miss L. was asleep after the organ massage, even if the preliminary inquiry evidence of Miss L. is not available to the defence for the truth of its contents. [ 24 ] I am greatly concerned that any suggested “ value added ” of the proposed evidence to the search for the truth or proper fact- finding in this case would compromise rather than enhance that process if the jury is presented with an instruction by me that they consider for the truth of its contents both the complainant ’ s testimony at trial and her arguably inconsistent testimony at the preliminary inquiry.

The defence has had the chance to discredit her, by cross-examining her on her arguably previous inconsistent testimony among other things. In my view admitting the proposed evidence would create a situation where the probative value of that preliminary inquiry evidence would be significantly outweighed by the prejudice caused thereby to the proper and fair fact-finding process of the jury.

CONCLUSION [ 25 ] No cases have been presented by the defence in which a complainant ’ s preliminary inquiry evidence has been admitted at trial for the truth of its contents when the complainant also testified at the trial in a fulsome manner, and was cross-examined by the defence counsel. [ 26 ] It is no accident in my view that such jurisprudence was not available.

For good reasons ,when the declarant has testified at a preliminary inquiry, and is available and able to be cross examined at trial, generally that previous evidence is not considered “ hearsay ” as presently defined by the jurisprudence in light of the rationale for characterizing hearsay as such, and the exceptions thereto. [ 27 ] Moreover even if such evidence could conceivably said to be “ hearsay ” , and be admissible under the principled exception to the hearsay rule, I find that the “ necessity ” criterion has not been met in this case for the reasons above noted. [ 28 ] Furthermore even if one could say that the “ necessity ” criterion had been met, in my view, in spite of the proposed use of that evidence generally, and in part as a foundation for an expert opinion by the defence in this case, I find that the prejudice of admitting the preliminary inquiry evidence of J.

L. as requested substantially outweighs its probative value. [ 29 ] The proposed defense evidence is therefore inadmissible. Rosinski, J.