Information #39981704 2007 SKPC 27 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON, SASKATCHEWAN Between: HER MAJESTY THE QUEEN [E.C.] Matthew Miazga for the Crown Tracey Buffalo for the Accused M.L. Gray, PCJ April 17, 2007 Introduction [1] [E.C.] stands charged that on September 26, 2006 at the City of Saskatoon, Saskatchewan, he did commit an assault on [A.G.], contrary to Section 266 of the Criminal Code. [2] On the trial date, the Crown applied to have admitted in evidence oral statements made by the complainant to her neighbour and to the police on September 26, 2006 for consideration of the truth of their contents. Evidence was then called on voir dire. [3] This application is pursuant to line of cases which create an exception to the rule which presumptively excludes hearsay evidence. In accord with these cases, hearsay statements may be admitted on principled basis, the governing principles being reliability and necessity. [4] The facts are relatively straight-forward. The complainant, [A.G.], is the common- law spouse of the accused and had been for seven years. In September of 2006, they lived in an apartment building next door to [D.P.], friend of Ms. [A.G.]’s daughter. Ms. [D.P.] had known the complainant for about 10 years and the accused for five or six. [5] On September 26, 2006, Ms. [D.P.] returned home from work sometime after 10:00 p.m. From the [G.]/[C.] apartment next door, she heard the sounds of an argument; in particular, she could hear the complainant yelling but could not make out the words spoken. She did not hear any sounds of party or of struggle. [6] Sometime after this, Ms. [A.G.] came to her door asking that she call 911. Ms. [A.G.] did not have telephone at her own suite. [7] When the complainant came to the [P.] apartment, she was very upset, scared and crying. Ms. [D.P.] called the police as requested and advised that her neighbour was having problems with her boyfriend and wanted him removed. She offered to shelter the complainant until the police arrived. [8] Once the call had been made, the complainant explained that she and the accused had an argument over bank card. During the course of this dispute, he put his hands on her neck in an attempt to strangle her. Ms. [A.G.] demonstrated this for Ms. [D.P.]. She said she was sitting in chair when this happened and she tipped over; she did not say how she got free. The complainant reiterated that she wanted the accused gone. [9] Ms. [D.P.] saw red mark on the right side of the complainant’s neck. [10] The police arrived within about five minutes of the call to 911. Ms. [D.P.] heard the complainant tell the police the same things she had been told. The complainant was upset and continued to cry throughout the time she was at the P. home. [11] Officers Gutek and Penner responded to the call made by Ms. [D.P.] and met with both women about 11:30 p.m. [12] They, too, describe Ms. [A.G.] as being distraught and crying and that her emotional state remained the same throughout their dealing with her. They spoke for some 10-15 minutes with Ms. [A.G.] crying throughout. She related to the officers that the accused had confronted her about having his bank card then grabbed her by the neck and threw her on the floor. She pointed to 4" vertical mark below her right ear which was still red, as well as red mark on her chest which she said came from being held down on the floor. Cst. Gutek had strong feeling she was “somewhat intoxicated” based, in part, on her statement that she had been drinking beer for three hours. He accepted her complaint as truthful because it was consistent with the marks he saw on her neck and chest. [13] Upon receiving this information and obtaining permission from Ms. [A.G.], the officers went to the [G.]/[C.] residence where they found the door ajar and the accused asleep or passed out in the back bedroom. Mr. [E.C.] was described as having slurred speech, bloodshot eyes and “verbally aggressive”. He repeatedly stated that this could have been avoided if “she had given me back my bank card”. [14] Cst. Gutek also explained to Ms. [A.G.] that she should attend to the police station to provide statement and have photographs taken of her injuries. She did not do so. [15] Ms. [A.G.] was called to testify on the voir dire and said that she loves [E.C.] and does not want to see him get into trouble. She said that she had no recollection of the night in question because she was very intoxicated and the whole night is “blur”. Specifically, she did not remember going to her neighbour’s or having any injury. Her memory was not assisted by hearing the tape of the 911 call, although she did recognize the voice of [D.P.]. [16] The Crown has made an application to have the initial statements made by the complainant admitted into evidence, for the truth of their contents, as an exception to the hearsay rule. The tests for the admissibility of such statements are determination of necessity and reliability R. v. Smith (1992), 1992 CanLII 79 (SCC), 75 C.C.C. (3d), 257 at 271 (S.C.C.). The onus on the party seeking to tender the statement is on balance of probabilities. [17] With respect to the test of necessity, number of cases have held that this test is met when witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. [18] As stated by Moen, J., in paragraph 11, of R. v. Mousseau, 2002 ABQB 311 (CanLII), 2002 AB QB, 311: In both K.G.B. and R.v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] S.C.R. 764 (hereinafter “F.J.U.”), the majority of the Supreme Court held that the necessity test was met when witness recanted on an earlier statement. The earlier statement was necessary evidence because evidence of the same quality could not be obtained at trial. The fact that witness is available at trial does not preclude the prior statement from being ‘necessary’. [19] In the case at hand, it is clear that Ms. [A.G.]’s evidence is important to the Crown’s case and there is no other means of obtaining that evidence. Whether her alcohol consumption that night erased her recollection of events or whether she is a hostile witness is immaterial at this stage. Either way, she effectively holds hostage that evidence and the court need not determine the reason for the purpose of this application. [20] Accordingly, the court finds that the test of necessity has been met. [21] Turning to the requirement of reliability, the law is evolving and it is not only in situations where statements are recorded on video and taken under oath that there might be found sufficient indicia of reliability. Indeed, in R.v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531 and R.v. Smith (supra), statements made to ordinary citizens were admitted as an exception to the hearsay rule. Most recently, the Supreme Court of Canada in R.v. Khelawon, 2006 SCC 57 (CanLII), held that in determining reliability, regard should be had for the presence or absence of supporting or contradictory evidence. This overturns the earlier decision of R.v. Starr, 2000 SCC 40 (CanLII). [22] In R.v. U.(F.J.), (supra.), the Supreme Court of Canada identified three concerns about the reliability of hearsay evidence: (i) it is not subject to contemporaneous cross-examination; (ii) it is not given under oath; (iii) the trier of fact does not have an opportunity to observe the declarant in the making of the statement. [23] At paragraph 48 of R.v. Khelawon, Charron, J., writing for the Court, says: ... our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as principal of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to 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 CanLII 637 (SCC), [1999], 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. [24] The question then becomes whether there are sufficient indicia of reliability in any particular case to substitute for the lack of oath, lack of cross-examination and absence of video taping. Where the hearsay statement was made in circumstances which provide some guarantees of trustworthiness, the test for reliability will be met. [25] In R.v. Acoose, [1993] S.J. No. 93, decision of Rathgeber, P.C.J., the complainant testified that she had no recollection of an assault, nor did she remember giving statement to the police. The court held that her initial statement was admissible for consideration of the truth of its contents because certain aspects of that statement were independently verified. [26] In R.v Simpson, [1999] N.W.T.J. No. 20, the court allowed the hearsay statements of complainant on the basis of the res gestae exception. These statements were made to three different people within 15 minutes of the event; all were consistent. The court made obiter comments that these statements would have been admissible pursuant to the decision in Khan. [27] In R.v. LaChappelle, 1995 CanLII 5684 (SK QB), [1995] S.J. No. 246, the court found the following to be indicators of reliability: only the accused and the complainant were present in the apartment, the complainant had fresh injury which was bleeding, there was fresh blood on the floor and the complainant was very upset with the accused. The court held that the complainant’s statement that the accused had hit her would have been admitted into evidence but for the officer’s opinion that she was too intoxicated to provide credible statement. [28] In R. v. Nickerson, [1996] N.S.J. No. 342 the court relied on the following indicia of reliability: statements were taken separately from three witnesses, those statements were corroborative of each other, the witnesses understood the importance of telling the truth and an experienced officer testified that he accurately recorded what the witnesses said to him. [29] In R.v. Pritchett, [1995] O.J. No. 3277, hearsay statement was allowed into evidence based on the following indicia of reliability: the complainant made an unexpected visit to her friend, she had no motive to lie, she was upset and crying, she had physical mark consistent with an assault, and she stated that the accused had punched her. Further these statements were made contemporaneously and spontaneously to friend without any apparent guile. The court on appeal also pointed to the accused’s subsequent jealous and possessive behaviour as further indicator of reliability. [30] The above cases are instructive as to the type of evidence that might be considered supportive of trustworthiness. Conclusion [31] The following circumstances are evidence supportive of the trustworthiness of the statements made by [A.G.] on September 26, 2006:(i) she arrived unexpectedly at her neighbour’s apartment, around 11:30 at night;(ii) she was upset and crying;(iii) she asked that the police be called;(iv) she spontaneously described and demonstrated the incident which brought her to her neighbours and prompted the report to the police;(v) she repeated a consistent version to the police;(vi) she had fresh red marks on her neck and chest, which corresponded with her description;(vii) she reported that the incident began with a quarrel about a bank card;(viii) the accused verified this aspect of her complaint with his comments about the bank card;(ix) a bank card in the name of [A.G.] was found in the possession of the accused; and(x) the evidence supports the inference that the complainant and the accused were alone in their apartment from the time Ms. [D.P.] arrived home to the time Ms. [A.G.] came to her door. [32] Given the above circumstantial guarantees of trustworthiness, the statements made by Ms. [A.G.] are found to be reliable on a balance of probabilities and are, therefore, admissible.
The accused is charged with assault contrary to s. 266 of the Criminal Code. The Crown applies to admit into evidence oral statements made by the complainant to her neighbor and to the police for consideration of the truth of their contents. HELD: The statements made by the complainant are found to be reliable and are therefore admissible.  1) Hearsay statement may be admitted on a principled basis, the governing principles are reliability and necessity. A number of cases have held that necessity is met when a witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. 2) There is no other way to obtain the complainant's evidence. Whether her alcohol consumption that night erased her recollection of events or whether she is a hostile witness is immaterial at this stage. Either way she effectively holds hostage that evidence and the court need not determine the reason for the purpose of this application. The test of necessity has been met.  3) With regard to reliability, the question becomes whether there are sufficient indicia of reliability in a particular case to substitute the lack of oath, lack of cross-examination and absence of video taping. Where the hearsay statement was made in circumstances which provide some guarantees of trustworthiness, the test for reliability will be met. The following circumstances are evidence of trustworthiness: the complainant arrived unexpectedly at her neighbor's apartment, she was upset and crying, she asked that police be called, she spontaneously described the assault, she repeated a consistent version to the police, she had fresh red marks which corresponded with her description of the assault and the accused verified aspects of her complaint with comments he made.