R. v. Beah, 2013 ONSC 2490

CITATION: R. v. Beah , 2013 ONSC 2490 COURT FILE NO.: 50000743/12 DATE: 20130501 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN APPLICANT - and - JONATHAN BEAH RESPONDENT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) L. Gonet , for the Crown Armita Bahador , for the Accused ) ) HEARD: April 22 and 23, 2013 REASONS: APPLICATION BY THE CROWN UNDER SECTION 715(1)(

d) OF THE CRIMINAL CODE G.R. Strathy J.: [ 1 ] Jonathan Beah came before me for trial without a jury, on a charge of sexual assault of S.K. on January 28, 2012. The complainant left the country in December 2012, about two months after the preliminary hearing and a month before the trial date was

set. The Crown applied to introduce the complainant’s evidence from the preliminary hearing at trial under s. 715(1)(

d) of the CriminalCode or, alternatively, under the principled exception to the hearsay rule set out in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Igranted the application, with reasons to follow. These are my reasons. Background [2] The charge against Mr. Beah arose out of an alleged incident on January 28, 2012. The complainant, then 20, was visiting afamily friend who was babysitting the accused’s children. She testified at the preliminary hearing that around 10:00 p.m. the accusedcame to the friend’s apartment to pick up his children.

At the request of the accused, she helped him take his children to his apartment,which was in the same building. She testified that he forced intercourse on her in the master bedroom. She disclosed the sexual assault toher mother four days later, at which time it was reported to the police. [3] The preliminary hearing was held on October 18, 2012. The complainant was the only Crown witness. She was cross-examinedby defence counsel. The transcript of her KGB statement was not available at that time, but a DVD recording was available and in thepossession of the defence.

Committal was conceded. [4] The first appearance in this court was November 29, 2012. A trial date was set on January 22, 2013 and was confirmed onMarch 21, 2013. [5] At the opening of trial, the Crown stated that after the trial date was set, the complainant’s mother, who had been subpoenaedas a Crown witness, reported that the complainant had moved permanently to Sierra Leone in early December 2012, to live with herfather, and that she had no intention of returning to Canada.

Crown counsel advised me that neither she nor the investigating officer hadhad any direct communication with the complainant, and that all information received had been through her mother.

The Crown alsoadvised that she had made inquiries into the possibility of taking the complainant’s evidence by video link, but had been informed by theservice provider that such facilities did not exist in Sierra Leone. [6] After hearing the submissions of counsel, I indicated that I was not satisfied that it had been established that the complainantwas outside Canada or that her evidence could not be obtained either by bringing her to Canada or by making some alternativearrangements. [7] The Crown then called the complainant’s mother as a witness.

She testified that she had come to Canada from Sierra Leone in2000, when her daughter was about seven, and that they had lived here since that time. On a vacation to Sierra Leone during Christmas2012, the complainant said that she wanted to stay in Sierra Leone with her father, brother and sister, and that she wanted to complete herschooling there. She said that her daughter wanted to put this matter behind her as it was a “bad memory” and that she wanted to take it“out of court”.

She acknowledged that her daughter would come back to Canada at some point, but said that nothing was planned. [8] Having heard the mother’s evidence, I remained concerned that there had been no direct communication with the complainantherself. The Crown then arranged to contact the complainant by telephone in Sierra Leone. After making the call, the Crown reportedthat the complainant had confirmed that she intended to remain in Sierra Leone and had no plans to return to Canada.

When she wasinformed that the Crown would pay the costs of her return to Canada for the purpose of trial, she said that she wanted to remain in SierraLeone and expressed a preference that the charges be withdrawn. A similar preference was expressed by her mother. The complainantconfirmed that the internet facilities in Sierra Leone were unreliable.

The Criminal Code Provision [9] Section 715(1) provides as follows: Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence wastaken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to giveevidence, or if facts are proved on oath from which it can be inferred reasonably that the person (

a) is dead, (

b) has since become and is insane, (

c) is so ill that he is unable to travel or testify, or (

d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedingswithout further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [10] The Crown relies on subsection (d), namely that the complainant is absent from Canada. [11] The constitutionality of the provision (previously s. 643(1) of the Code) was confirmed in R. v. Potvin, (SCC),[1989] 1 S.C.R. 525, in which it was held not to offend either the right to a fair hearing under s. 7 or the presumption of innocence unders. 11(

d) of the Charter. [12] The appellant in Potvin argued that the right to a fair trial included the right to cross-examine all adverse witnesses at trial. TheSupreme Court, per Wilson J. at para. 19, dismissed this argument, holding that the right to a fair trial was not infringed if the accusedhad the opportunity to fully cross-examine the witness at the preliminary hearing: What rights then does an accused have under s. 7 of the Charter with respect to the admission of previous testimony? It is, in my view,

basic to our system of justice that the accused have had a full opportunity to cross-examine the witness when the previous testimony wastaken if a transcript of such testimony is to be introduced as evidence in a criminal trial for the purpose of convicting the accused. This isin accord with the traditional view that it is the opportunity to cross-examine and not the fact of cross-examination which is crucial if theaccused is to be treated fairly.

As Professor Delisle has noted: Annotation (1986), 50 C.R. (3d) 195, at p. 196: If the opposing party has had an opportunity to fully cross-examine he ought not to be justified in any later complaint if he did not fullyexercise that right. I would respectfully adopt the following observations of Martin J.A. of the Ontario Court of Appeal in Davidson, supra, at pp. 298-99: An accused is not necessarily deprived of his or her constitutional right to a fair trial, where the evidence taken at a preliminary hearingfrom a crucial witness who has since died is read as evidence at the trial.

However, if in a particular case, an accused proves that he orshe did not have “full opportunity” to cross-examine the witness at the preliminary hearing because, for example, he or she was deprivedof the right to counsel or because of improper restrictions by the court on the cross-examination by counsel, then the conditions of s. 643have not been met, and the evidence taken at the preliminary hearing is not admissible under the section. Furthermore, the accused’sconstitutional right to a fair trial guaranteed by s. 11(

d) of the Charter would also require the exclusion of evidence where the accuseddid not have full opportunity to cross-examine the witness at the preliminary hearing. [13] Wilson J. added at para. 25 that it is no answer for the accused to argue that the cross-examination at the preliminary hearing wasnot as full as it might have been at trial, or that it was conducted differently than it might have been at trial: As for the detriment an accused might suffer from the tactical decision of his or her counsel not to press certain issues at the preliminaryinquiry with a witness who may subsequently become unavailable at the trial, I am in complete agreement with the observation ofMartin J.A. in Davidson, supra, at p. 298: In my view, an accused is not deprived of “full opportunity” to cross-examine a witness at the preliminary hearing merely because hiscounsel, for tactical reasons, has conducted the cross-examination of a witness differently than he would have conducted the cross-examination at the trial, provided that there has been no improper restriction of the cross-examination by the provincial judge holdingthe preliminary hearing. [14] The Supreme Court made it clear, however, that a trial judge has a residual discretion to “prevent any unfairness that couldotherwise result from a purely mechanical application of the section” (at para. 33).

Wilson J. suggested that the discretion could beexercised in two cases, the first of which was “unfairness in the manner in which the evidence was obtained” (para. 34). She gave theexample of a case in which the witness was temporarily absent from Canada, but “the Crown could have obtained the witness’sattendance at trial with a minimal degree of effort” (para. 34). The second case was where the admission of evidence would have aneffect on the fairness of the trial itself.

She summarized her analysis of this issue at para. 37: In my view, once it is accepted that s. 643(1) gives the trial judge a statutory discretion to depart from the purely mechanical applicationof the section, the discretion should be construed as sufficiently broad to deal with both kinds of situations, namely where the testimonywas obtained in a manner which was unfair to the accused or where, even although the manner of obtaining the evidence was fair to theaccused, its admission at his or her trial would not be fair to the accused.

I would stress that in both situations the discretion should onlybe exercised after weighing what I have referred to as the “two competing and frequently conflicting concerns” of fair treatment of theaccused and society’s interest in the admission of probative evidence in order to get at the truth of the matter in issue: see Clarkson v.The Queen, (SCC), [1986] 1 S.C.R. 383, at pp. 392-93. Having regard to the reservations that have been expressed overthe restrictive formulation of the common law discretion in Wray, supra (see Morris v. The Queen, supra, at p. 202; Clarkson v. TheQueen, at pp. 392-93, R. v.

Corbett, supra, at pp. 738-39), I believe there is no need or justification for importing a similar restriction intothe statutorily conferred discretion in s. 643(1).

The protection of the accused from unfairness rather than the admission of probativeevidence “without too much regard for the fairness of the adjudicative process” (see Clarkson, at p. 393) should be the focus of the trialjudge’s concern. [15] Many cases have confirmed that even when the requirements of s. 715 have been satisfied, the Court has a residual discretion toexclude the evidence where its admission would result in unfairness at the trial: see R. v. Thind, [2011] O.J. No. 6372 (S.C.J.) at para. 6;R. v. Lewis, 2009 ONCA 874, [2009] O.J. No. 5294 at para. 41; R. v. Pillay, [2004] O.J.

No. 2498 (S.C.J.) at para. 14; R. v. Sabra,[2007] O.J. No. 832 (S.C.

J) at para. 14; R. v. Kaddoura, (AB CA), [1987] A.J. No. 1021 (C.A.); R. v. Brijcoomar,[2000] O.J. No. 2489 (S.C.J.) at para. 25. The Principled Approach to Hearsay [16] Even where the evidence cannot be admitted under s. 715(1) of the Criminal Code, it may be capable of being admitted underthe principled approach to the admission of hearsay evidence articulated in Khelawon, if it bears the necessary indicia of necessity andreliability: see R. v.

Hawkins, (SCC), [1996] 3 S.C.R. 1043. [17] Necessity can be established by the fact that the witness is out of the jurisdiction and unable or unwilling to come to Canada totestify and that there are no other reasonable alternatives to obtain the evidence. [18] Reliability can be established through a certified transcript of evidence given at a preliminary hearing, in which the witness issworn and subject to cross-examination by counsel for the accused. Crown counsel referred to a number of cases in which a preliminaryhearing transcript has been admitted in evidence under the principled approach to hearsay: R. v.

Ménard, (ON CA),[1996] O.J. No. 2453 (C.A.) at para. 30, aff’d (SCC), [1998] 2 S.C.R. 109; R. v. Dionne, 2004 ABCA 400, [2004] A.J.

No. 1442 at para. 8; R. v. Carroll, 1999 BCCA 65, [1999] B.C.J. No. 201; R. v. Denethlon, [1998] N.W.T.J. No. 5 (C.A.); R. v. Clarke, (ON SC), [1993] O.J. No. 1427 (Gen. Div.), aff’d [1994] O.J. No. 2952 (C.A.), leave to appeal dismissed [1995]SCCA No. 79; R. v. Mayhew, [1996] O.J. No. 566 (Gen. Div.) at para. 9. See also: R. v. Osae, 2010 ONSC 3105, [2010] O.J. No. 2290at para. 47; R. v. Lewis, at para. 84. Position of the Crown and the Defence [19] The Crown submitted that the preliminary hearing evidence was admissible either under s. 715(1)(

d) of the Code or under theprincipled exception to the hearsay rule. It meets the statutory test because the witness is outside Canada and it meets the necessityrequirement due to the unavailability of the complainant. It is reliable because it was taken under oath, in the presence of the accused,and his counsel exercised the full opportunity to conduct a thorough cross-examination. While the Crown acknowledged that under bothtests the Court has residual discretion to exclude the evidence where it would operate unfairly to the accused, it submitted that thosecircumstances do not exist in this case.

The Crown pointed out that if the evidence is admitted, the judge or jury could take into accountthe fact that they have not observed the complainant testify and that cross-examination was limited to what occurred at the preliminaryhearing. [20] The Crown submitted that once the statutory pre-conditions for the admission of the evidence have been met, the onus is on theaccused to prove that he did not have a full opportunity to cross-examine the witness at the preliminary hearing: R. v.

Potvin at para. 28.This means more than simply a tactical decision by defence counsel to conduct cross-examination in a certain way: R. v. Potvin at para.25. [21] Counsel for Mr. Beah submitted that the Crown had not established the necessary pre-conditions for an order under s. 715 andthat it had failed to show that the complainant was out of Canada and that her evidence could not be made available through the exerciseof reasonable diligence. Ms. Bahador submitted that the complainant was simply attempting to avoid cross-examination.

She submittedthat in sexual assault cases, credibility is generally all-important and that without the witness being personally present, it would beimpossible for the Court to fully assess the reliability and credibility of her evidence.

Moreover, the inability of the defence to confrontthe complainant with her prior testimony would severely constrain the accused’s ability to challenge her evidence. [22] For the same reasons, the defence opposed the admission of the evidence under the principled exception to the hearsay rule. [23] In the alternative, defence counsel submitted that if the complainant’s evidence from the preliminary hearing was admitted, theCourt should also admit the complainant’s KGB statement to the police and a transcript of the statement, under the principled exceptionto the hearsay rule.

The Crown did not take issue with this proposal. Discussion [24] I found that the preliminary hearing evidence of the complainant was admissible under both the Criminal Code and theprincipled exception to the hearsay rule. [25] It was established to my satisfaction that the witness was outside Canada and that there was no reasonable prospect of bringingher, or her evidence, before the Court in any other way. The Crown only determined her unavailability after the trial date had been setand I was satisfied that there was no lack of due diligence on the part of the Crown.

The complainant effectively refused to return toCanada, in spite of the Crown’s offer to cover the costs, and the Crown satisfied me that reliable technology did not currently exist inSierra Leone to provide teleconferencing or internet-based conferencing. This satisfied the common law necessity requirement as well. [26] The accused did not prove that he did not have the full opportunity to cross-examine at the preliminary hearing. In fact, there wasextensive cross-examination.

Although the transcript of the KGB statement was not available at that time, the video was available, anddefence counsel in fact referred to it in cross-examining the complainant. [27] The transcript met the common law requirement of reliability. The witness was under oath. She was examined by the Crown andcross-examined by defence counsel. The transcript was certified as accurate by the court reporter. [28] This was not a case to exclude the evidence based on the court’s residual discretion. As is typical in sexual assault cases, thecomplainant’s evidence was vital to the prosecution.

There were no witnesses to the alleged assault. There was no corroborativeevidence, such as DNA or other physical evidence. While the Crown intended to call several civilian witnesses, their evidence wasexpected to be peripheral at best. There was a societal interest in the admission of probative evidence. [29] Moreover, I granted the defence request that the complainant’s KGB statement and the video also be admitted.

This gave thedefence the opportunity, of which it took full advantage, to argue that there were inconsistencies between the complainant’s previousstatement and her evidence at the preliminary hearing. [30] As well, I concluded that in assessing the weight to be given to the complainant’s evidence from the preliminary hearing, I wasentitled to take into account the fact that I did not have an opportunity to see and hear her evidence and to assess her demeanour as shetestified. [31] Accordingly, I concluded that the admission of the evidence would not give rise to unfairness to the accused and I granted theCrown’s application.

___________________________ G.R. Strathy J. Released: May 1, 2013 CITATION: R. v. Beah , 2013 ONSC 2490 COURT FILE NO.: 50000743/12 DATE: 20130501 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JONATHAN BEAH REASONS: APPLICATION BY THE CROWN UNDER SECTION 715(1)(

d) OF THE CRIMINAL CODE G.R. Strathy J.

Released: May 1, 2013