Ontario Superior Court of Justice

Between

Her Majesty the Queen

Applicant

and

[REDACTED] [REDACTED] and [REDACTED]

Respondents

C. Sweeney, for the Applicant, Her Majesty the Queen

D. Steinberg, for the Respondent, [REDACTED]

M. Friedberg for the Respondent, [REDACTED]

Released: December 3, 2008

Thorburn J.

RULING RE KGB APPLICATION

1. Background

[1] The Crown seeks to introduce, for the truth of their contents, four statements by Mr.

Shawn Powers who is a Crown eye witness in this proceeding. The statements include:

a) a verbal statement to police made by Mr. Powers upon his arrest, as recorded in

police notes;

b) a transcript of Mr. Powers' guilty plea;

c) the transcript of the preliminary inquiry in this proceeding; and

d) the transcript of Mr. Powers' sentencing.

[2] These statements are hearsay evidence. They are very important as they are the only eye

witness statements that corroborate the complainant's account of the sexual assaults and robbery.

[3] Mr. Powers' hearsay statements are presumptively inadmissible. None of the traditional

hearsay exceptions assist the Crown in proving its case. The evidence may only be admitted

under the principled exception to the hearsay rule.

[4] The principled exception to the hearsay rule will be invoked where the hearsay evidence

is necessary and sufficiently reliable to warrant admission and where the probative value is

outweighed by its prejudicial effect.

[5] At trial, Mr. Powers recanted making it necessary for the Crown to seek to introduce Mr.

Powers' previous statements into evidence. It is agreed that the necessity requirement has

thereby been met.

2. The Issues

[6] The issues before me are:

a) whether the above evidence is sufficiently reliable to warrant admission and if so,

b) whether the probative value of Mr. Powers' earlier statements outweighs their

prejudicial effect on the accused.

[7] The onus is on the person who seeks to introduce the evidence to establish necessity and

reliability on a balance of probabilities.

3. The Law

A. Reliability

[8] The reliability requirement can be met in two ways.

[9] First, it can be demonstrated that there is no concern as to the truth of the statement

because of the circumstances in which it was taken. Factors such as the presence or absence of a

motive to lie, voluntariness of the statement, demeanour, whether the statement was made in

circumstances that would bring home to the witness the importance of telling the truth,

timeliness, absence of collusion, and completeness of the record. (See R. v. Khelawon, (2006), 2

S.C.R. 787 at paras. 61-62 and R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 120.)

[10] In the alternative, the circumstances in which the statement was made and extrinsic

evidence may serve to confirm the reliability of the evidence. Evidence of taking an oath to tell

the truth, opportunity to observe demeanour, accurate recording devices, a certified written

transcript, the opportunity to cross-examine, and the absence of factors that would tend to bring

the administration of justice into disrepute are considered. (See R. v. B. (K.G.)supra at para

120.)

[11] The Supreme Court of Canada in R. v. Hawkins, [1996] 3 S.C.R. 1043 allowed the

transcript of a witness' testimony from the applicants' preliminary inquiry to be read in as

evidence. The transcript was found to have "sufficient guarantees of trustworthiness":

A preliminary inquiry will involve precisely the same issues and the same parties as the trial. The hearsay dangers associated with testimony in such an adjudicative proceeding are minimal. Preliminary inquiry testimony is given under oath, and is also subject to the adverse party's right to contemporaneous cross-examination. It is only tainted by the lack of the declarant's presence before the trier of fact. (R. v. Hawkins at paras. 74-81)

[12] In Hawkins, circumstantial guarantees of trustworthiness inherent in the adversarial

process of the preliminary inquiry were found to more than make up for the inability to observe

the declarant's demeanour at trial. (The declarant was unavailable for cross-examination at

trial.)

[13] Moreover, the Supreme Court of Canada noted in R. v. Khelawon at para. 66, "...the

availability of the declarant for cross-examination goes a long way to satisfying the requirement

for adequate substitutes [for testing the evidence]."

B. Probative value versus prejudicial effect

[14] The Supreme Court in Khelawon held at para. 49 that "... even if the two criteria of

reliability and necessity are met, the judge may exclude hearsay evidence where its probative

value is outweighed by its prejudicial effect". It explained the scope of trial fairness in this way:

... Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

[15] Unfair prejudice has been characterized as follows: First, the danger that the facts offered

may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the

probability that the proof and the answering evidence that it provokes may create a side issue that

will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered

and the counter proof will consume an undue amount of time. Fourth, the danger of unfair

surprise to the opponent when, having no reasonable ground to anticipate this development of the

proof, he would be unprepared to meet it. (See McCormick's Handbook of the Law of Evidence

(2nd ed. 1972), at pp. 438-40).

4. The Positions of the Parties

[16] The Crown states that the three transcribed statements are reliable for the following

reasons:

a) all three were statements made under oath,

b) the statements were transcribed by a certified court reporter as accurate and complete,

c) the statements were made in an adversarial setting (a court reporter with Crown counsel and, in the case of the Preliminary Inquiry, Mr. [REDACTED] and Mr. [REDACTED]' counsel present),

d) there was an opportunity to cross-examine Mr. Powers at the time each of the statements were made and observe his demeanour, and

e) Mr. Powers is available for cross-examination at trial.

[17] As such, the truth and accuracy of the three transcribed statements can be adequately

tested.

[18] Moreover, the Crown suggests that Mr. Powers' counsel has a legal duty not to tender

evidence she knows to be false. As such, she would not knowingly have permitted Mr. Powers

to agree to facts she knew to be incorrect. The statement initially made at Mr. Powers' guilty

plea and referred to thereafter refers to Mr. [REDACTED] and Mr. [REDACTED] and their actions numerous

times. Because of the circumstances in which these statements were made, they are reliable.

[19] The Crown submits that the circumstances surrounding Mr. Powers' statement to police

are such that they also meet the threshold reliability as:

a) there was no motive to name Mr. [REDACTED] and Mr. [REDACTED];

b) the statement was made to police officers who had a duty to record the statements accurately;

c) the statement was made voluntarily and no threats, promises or inducements were

made by police;

d) Mr. Powers was aware that if he identified [REDACTED] and [REDACTED], they would be

arrested; and

e) there is no evidence of collusion with the Complainant as she had already implicated Mr. Powers as a perpetrator of the offences against her, the day after the

alleged incidents took place and approximately three weeks before Mr. Powers

gave this statement to police.

[20] Furthermore, extrinsic evidence supports the reliability of this police statement. The

Complainant identified Mr. [REDACTED] and Mr. [REDACTED] independently through photo lineups and in the

three later statements made under oath, Mr. Powers continued to implicate Messrs. [REDACTED] and

[REDACTED].

[21] Defence counsel take the position that the transcribed statements are not reliable as Mr.

Powers wanted to explain more to his counsel and to the court but was not permitted to do so.

Moreover, at his guilty plea Mr. Powers said that the facts were substantially correct not that they

were absolutely correct. Finally, Defence counsel suggest that evidence from an accused who

has not yet been sentenced is inherently unreliable and should therefore not be relied upon. They

cite the dissenting reasons of Cromwell J.A. in R. v. Dowe, 2007¸ N.S.J. No. 525, whose reasons

were adopted by the Supreme Court of Canada, as support for this proposition. Defence counsel

submit that for these reasons, the three transcribed statements taken under oath do not meet

threshold reliability.

[22] Defence counsel further state that the police notes are not a complete record of what

transpired. Mr. Powers was not under oath when he made the statement. Moreover, it was given

at a time when Mr. Powers' key objective was to absolve himself of any responsibility for any of

the alleged incidents and be released from custody. He clearly lied about his own involvement

and was hoping to be released.

[23] It is agreed that the statements sought to be introduced are highly probative as Mr.

Powers was an eye witness to the events in question and his earlier testimony corroborates some

of the testimony given by the Complainant. The Crown denies there is any improper prejudice to

the tendering of the prior statements as the matters relate directly to the charges before the court

and nothing extraneous.

[24] The Applicants take the position that the statements are highly and unfairly prejudicial.

5. Analysis and Conclusions

5A. Prior testimony given under oath (The Guilty Plea, Preliminary Inquiry and

Sentencing Hearing)

[25] All three statements: the guilty plea, the preliminary inquiry and the sentencing hearing

meet the threshold test for reliability. All constitute testimony given under oath, in an adversarial

setting and there is also a complete record of questions asked and answers given. Moreover,

while Defence counsel had no opportunity to cross-examine Mr. Powers on statements made at

the hearing of his guilty plea and his sentencing hearing, Mr. Powers is available for crossexamination

by Defence counsel at trial. Defence counsel will thereby observe his demeanour,

which will alleviate any "taint" identified in Hawkins.

[26] At his guilty plea Mr. Powers confirmed that the facts in issue were "substantially

correct". At his preliminary inquiry he was asked at the preliminary inquiry about the facts read

to him at his guilty plea. At the preliminary inquiry, the following exchange took place:

Q. And that you accepted those facts [that were read in at Mr. Powers' guilty

plea] that were read in as true?

A. Yeah.

[27] Defence counsel's concerns that Mr. Powers did not give his unqualified agreement to all

of the facts contained in the statement read to him by his counsel and that Mr. Powers indicated

on the record in previous testimony that he wished to say more and was not permitted to do so,

go to the weight to be attached to the testimony. Mr. Powers can qualify these statements through

his testimony at trial. (See R. v. C. (W.B.) (2000), 142 C.C.C. (3d) 490 (Ont.C.A.), affirmed

[2001] 1 S.C.R. 530, at paras. 49-61 and R. v. Woodcock (2005), 73 W.C.B. (2d) 474

(Ont.S.C.J.), both of which dealt with the use of admissions in a prior guilty plea in a subsequent

proceeding against the same accused.)

[28] In Woodcock, a very similar problem arose, in which defence counsel argued the

accused's admissions at his guilty plea were not admissible, inter alia, because the accused had

only agreed the underlying facts were "substantially correct", and that a guilty plea was only

agreement to the essential elements of the offence. Relying on C. (W.B.), the court held at para.

29 that, "it was open to [the accused] to qualify the admission. Issues relating to the appropriate

weight to be attached to it are a matter for the jury."

[29] Moreover, I do not agree that the decision in R. v. Dowe (supra) serves to preclude the

introduction of evidence of an eye witness. In Dowe, the court was concerned that, "the Crown's

case rested on the evidence, not just of the accomplice, but of an accomplice who had not yet

been sentenced for the crime." That is not the case in the matter before me. Any concern about

the testimony of a co-accused whose own charges are unresolved goes to weight, not

admissibility. (See United States of America v. Shulman, [2001] 1 S.C.R. 616 at 641 which was

cited by Cromwell J.A. in his reasons.)

[30] In this case, Mr. Powers' earlier testimony does not stand alone: it corroborates some the

the testimony given by the Complainant. Moreover, this earlier testimony is not being

introduced for its ultimate reliability but for threshold reliability. While the Crown has the

opportunity to cross-examine Mr. Powers on this issue, so does Defence counsel. Thereafter, it

is up to the triers of fact to determine what reliability, if any can be placed on this earlier

testimony. Furthermore, instructions can be given to members of the jury prior to their

deliberations to address testimony given by Mr. Powers who was awaiting sentence on charges

that pertain to the incidents in question.

[31] For these reasons, I find Mr. Powers' prior guilty plea, the preliminary inquiry

proceeding, and Mr. Powers' sentencing proceeding, meet the threshold reliability and provide

adequate protection from the dangers of hearsay testimony.

[32] There is no doubt that the probative value of these statements is high, and that they are

prejudicial in the sense that they implicate the accused. However, I have weighed the probative

value and the prejudicial effect and in my view, the resulting prejudice is not improper. As such,

the probative value outweighs the prejudicial effect and the Crown is permitted to introduce the

three earlier transcribed statements made by Mr. Powers for the truth of their contents.

5B. Statement to police

[33] Mr. Powers' statement to police on the other hand, is not sufficiently reliable to allow it

to be put to the jury for the truth of its contents.

[34] Mr. Powers was not under oath. He was not cautioned as to the consequences of making a

false statement. He refused to be video- or audiotaped and there is no complete record of the

interview. He did not read and approve a written statement of his interview. He did not review

the police officer's notes of the interview after they were made. He did not even see them, as the

notes were written shortly after the interview had concluded.

[35] More importantly, the statement was part of a known lie: Mr. Powers claimed that he was

not at the complainant's home on the night in question, but Mr. Powers has since pled guilty to

his involvement. While no threats or inducements were present, his key motive was to deflect

police interest in him, and to be released from police custody.

[36] While Mr. Powers will be available for cross-examination at trial, the circumstances

surrounding this statement, including his objective to deflect police attention from himself, the

lack of any substitutes for the oath and observation of demeanour, taken together, satisfy me that

the police statement does not meet the threshold of reliability. As such, the Crown is not permitted to introduce the police statement for the truth of its contents.

[37] The Crown is permitted to introduce Mr. Powers' previous testimony given under oath

only, for the truth of their contents. Ultimate reliability will be determined by the triers of fact in

this proceeding, in light of Power's testimony at trial under cross-examination, including any

qualifications or explanations he wishes to add to the testimony arising from previous testimony.