R. v. Khelawon

R. v. Khelawon
Collection
Supreme Court Judgments
Date
2006-12-14
Neutral citation
2006 SCC 57
Report
[2006] 2 SCR 787
Case number
30857
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 30857
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57
Date: 20061214 Docket: 30857
Between:
Her Majesty the Queen
Appellant
and
Ramnarine Khelawon
Respondent
‑ and ‑
Attorney General of British Columbia and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment: (paras. 1 to 110)
Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)
______________________________
R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57
Her Majesty The Queen Appellant
v.
Ramnarine Khelawon Respondent
and
Attorney General of British Columbia and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Khelawon
Neutral citation: 2006 SCC 57.
File No.: 30857.
2005: December 16; 2006: December 14.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Hearsay — Admissibility — Trial judge admitting deceased complainants’ hearsay statements to police into evidence — Whether statements admissible under principled exception to hearsay rule — Factors to be considered in determining whether hearsay statements sufficiently reliable to be admissible.
In 1999, C, a cook who worked at a retirement home, found S, a resident of the home, badly injured in his room. His belongings were packed in garbage bags. S told C that the accused, the manager of the home, had beaten him and threatened to kill him if he did not leave the home. C took S to her apartment and cared for him for a few days. She then brought S to a doctor. The doctor testified that he found three fractured ribs and bruises that were consistent with S’s allegation of assault but which also could have resulted from a fall. The next day, C took S to the police and S gave a videotaped statement alleging that the accused had assaulted him and threatened to kill him. The statement was not under oath but S answered “yes” when asked if he understood it was important to tell the truth and that he could be charged if he did not tell the truth. Medical records seized from the retirement home described S as “angry”, “aggressive”, “depressed” and “paranoid”, and revealed that he had been treated for paranoid psychosis and depression. At trial, a psychiatrist who testified at the voir dire concluded that S had the capacity to communicate evidence and understood at the time he made his statement to the police that it was important to tell the truth. The defence argued that C influenced S to complain out of spite because the accused previously had terminated C’s employment.
The police attended the retirement home where more residents complained that they had been assaulted by the accused. The accused was charged in respect of five complainants but, by the time of the trial, four complainants, including S and D, had died of causes unrelated to the alleged assaults and the fifth was no longer competent to testify. Only one complainant had testified at the preliminary inquiry. The central issue at trial was whether the complainants’ hearsay statements should be received in evidence. The trial judge admitted some of the hearsay based in large part on the striking similarity between the statements. The trial judge ultimately found videotaped statements given by S and D to the police sufficiently credible to found convictions for aggravated assault and uttering a death threat in respect of S, as well as assault causing bodily harm and assault with a weapon in respect of D. The accused was acquitted on the remaining counts. On appeal, a majority of the Court of Appeal excluded all of the hearsay statements and acquitted the accused on all charges. The dissenting judge would have upheld the convictions in respect of S. The Crown appealed as of right from the acquittals in respect of S and was denied leave to appeal from the acquittals in respect of D.
Held: The appeal should be dismissed and the acquittals affirmed.
Hearsay evidence is presumptively inadmissible unless an exception to the hearsay rule applies, primarily because of a general inability to test its reliability. The essential defining features of hearsay are the fact that the out‑of‑court statement is adduced to prove the truth of its contents and the absence of a contemporaneous opportunity to cross‑examine the declarant. Hearsay includes an out‑of‑court statement made by a witness who testifies in court if the statement is tendered to prove the truth of its contents. In some circumstances, hearsay evidence presents minimal dangers and its exclusion rather than its admission would impede accurate fact finding. Hence over time a number of traditional exceptions to the exclusionary rule were created by the courts. Hearsay evidence that does not fall under a traditional exception may still be admitted under the principled approach if indicia of reliability and necessity are established on a voir dire. The reliability requirement is aimed at identifying those cases where the concerns arising from the inability to test the evidence are sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. The reliability requirement will generally be met by showing (1) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or (2) that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross‑examination. These two principal ways of satisfying the reliability requirement are not mutually exclusive categories and they assist in identifying the factors that need to be considered on the admissibility inquiry. [2‑3] [35] [37] [42] [49] [61‑63] [65]
The trial judge acts as a gatekeeper in making the preliminary assessment of the threshold reliability of a hearsay statement and leaves the ultimate determination of its worth to the fact finder. The factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. Comments to the contrary in previous decisions of this Court, including R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, should no longer be followed. In determining admissibility, the court should adopt a more functional approach focussed on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers. Whether certain factors will go only to ultimate reliability will depend on the context. In each case, the inquiry is limited to determining the evidentiary question of admissibility. Corroborating or conflicting evidence may be considered in the admissibility inquiry in appropriate cases. When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not. [2] [4] [92‑93]
In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested by the ultimate trier of fact. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. As in all cases, the trial judge has a residual discretion to exclude admissible hearsay evidence where its prejudicial effect is out of proportion to its probative value. [2‑3]
R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915, are examples where the reliability requirement was met because the circumstances in which hearsay statements came about provided sufficient comfort in their truth and accuracy. R. v. B. (K.G.), [1993] 1 S.C.R. 740, and R. v. Hawkins, [1996] 3 S.C.R. 1043, provide examples where threshold reliability was based on the presence of adequate substitutes for traditional safeguards relied upon to test the evidence. Similarly, in R. v. U. (F.J.), [1995] 3 S.C.R. 764, the striking similarities between the complainant’s prior inconsistent out‑of‑court statement and the accused’s independent statement were so compelling that the very high reliability of the complainant’s statement rendered its substantive admission necessary. [67‑68] [73] [82] [86] [88]
S’s videotaped statement to the police was inadmissible. Although S’s death before trial made his hearsay statement necessary, the statement was not sufficiently reliable to overcome the dangers it presented. The circumstances in which it came about did not provide reasonable assurances of inherent reliability. A number of serious issues arise including: whether S was mentally competent; whether he understood the consequences of making his statement; whether he was influenced by C; whether his statement was motivated by dissatisfaction about the management of the home; and, whether his injuries were caused by a fall. S’s unavailability for cross‑examination posed significant limitations on the accused’s ability to test the evidence and on the trier of fact’s ability to properly assess its worth. While the presence of a striking similarity between statements from different complainants could well provide sufficient cogency to warrant the admission of hearsay evidence in an appropriate case, the statements made by the other complainants in this case posed even greater difficulties and could not be substantively admitted to assist in assessing the reliability of S’s allegations. The admission of the evidence risked impairing the fairness of the trial. Furthermore, S’s evidence could have been taken before his death in the presence of a commissioner and the accused or his counsel thereby preserving both the evidence and the rights of the accused. [7] [108]
Cases Cited
Modified: R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; explained: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Hawkins, [1996] 3 S.C.R. 1043; discussed: R. v. C. (B.) (1993), 12 O.R. (3d) 608; Idaho v. Wright, 497 U.S. 805 (1990); referred to: R. v. Abbey, [1982] 2 S.C.R. 24; R. v. O’Brien, [1978] 1 S.C.R. 591; R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rose, [1998] 3 S.C.R. 262; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Wilcox (2001), 152 C.C.C. (3d) 157, 2001 NSCA 45; R. v. Czibulka (2004), 189 C.C.C. (3d) 199.
Statutes and Regulations Cited
Canada Evidence Act , R.S.C. 1985, c. C‑5 , s. 16 .
Canadian Charter of Rights and Freedoms , s. 7 .
Criminal Code , R.S.C. 1985, c. C‑46 , ss. 709 to 714 .
Authors Cited
Paciocco, David M. “The Hearsay Exceptions: A Game of ‘Rock, Paper, Scissors’”, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence. Toronto: Irwin Law, 2004, 17.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. III, 2nd ed. Boston: Little, Brown, 1923.
APPEAL from a judgment of the Ontario Court of Appeal (Rosenberg, Armstrong and Blair JJ.A.) (2005), 195 O.A.C. 11, 194 C.C.C. (3d) 161, 26 C.R. (6th) 1, [2005] O.J. No. 723 (QL), setting aside the accused’s convictions. Appeal dismissed.
John S. McInnes and Eliott Behar, for the appellant.
Timothy E. Breen, for the respondent.
Alexander Budlovsky, for the intervener the Attorney General of British Columbia.
Louis P. Strezos and Joseph Di Luca, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Charron J. —
1. Overview
1 This appeal turns on the admissibility of hearsay statements under the principled case-by-case exception to the hearsay rule based on necessity and reliability. In particular, guidance is sought on what factors should be considered in determining whether a hearsay statement is sufficiently reliable to be admissible. This Court’s decision in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, has generally been interpreted as standing for the proposition that circumstances “extrinsic” to the taking of the statement go to ultimate reliability only and cannot be considered by the trial judge in ruling on its admissibility. The decision has generated much judicial commentary and academic criticism on various grounds, including the difficulty of defining what constitutes an “extrinsic” circumstance and the apparent inconsistency between this holding in Starr and the Court’s consideration of a semen stain on the declarant’s clothing in R. v. Khan, [1990] 2 S.C.R. 531, the declarant’s motive to lie in R. v. Smith, [1992] 2 S.C.R. 915, and most relevant to this case, the striking similarities between statements in R. v. U. (F.J.), [1995] 3 S.C.R. 764.
2 As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Hence, over time a number of exceptions to the rule were created by the courts. Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.
3 The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.
4 As I will explain, I have concluded that the factors to be considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this Court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility.
5 In May 1999, five elderly residents of a retirement home told various people that they were assaulted by the manager of the home, the respondent, Ramnarine Khelawon. At the time of trial, approximately two and a half years later, four of the complainants had died of causes unrelated to the assaults, and the fifth was no longer competent to testify. Only one of the complainants had testified at the preliminary inquiry. The central issue at trial was whether the hearsay statements provided by the complainants had sufficient threshold reliability to be received in evidence. Grossi J. held that the hearsay statements from each of the complainants were sufficiently reliable to be admitted in evidence, based in large part on the “striking” similarity between them. He ultimately found Mr. Khelawon guilty of the offences in respect of two of the complainants, Mr. Skupien and Mr. Dinino, and acquitted him on the remaining counts. Mr. Khelawon was sentenced to two and a half years of imprisonment for the offences relating to Mr. Skupien and an additional two years for the offences related to Mr. Dinino.
6 On appeal to the Court of Appeal for Ontario, Rosenberg J.A. (Armstrong J.A. concurring) excluded all statements and acquitted Mr. Khelawon. Blair J.A., in dissent, would have upheld the convictions in respect of Mr. Skupien only. The Crown appeals to this Court as of right, seeking to restore the convictions relating to Mr. Skupien. The Crown also sought but was denied leave in respect of the charges relating to Mr. Dinino.
7 In my view, Mr. Skupien’s videotaped statement to the police was inadmissible. Although Mr. Skupien’s death before the commencement of the trial made it necessary to resort to his evidence in this form, the statement was not sufficiently reliable to overcome the dangers it presented. The circumstances in which it came about did not provide reasonable assurances of inherent reliability. To the contrary, they gave rise to a number of serious issues including: whether Mr. Skupien was mentally competent, whether he understood the consequences of making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by Mr. Khelawon, whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused by a fall rather than the assault. In these circumstances, Mr. Skupien’s unavailability for cross-examination posed significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth. The statements made by other complainants posed even greater difficulties and could not be substantively admitted to assist in assessing the reliability of Mr. Skupien’s allegations. In all the circumstances, particularly given that the Crown’s case against Mr. Khelawon was founded on the hearsay statement, the admission of the evidence risked impairing the fairness of the trial and should not have been permitted. As Rosenberg J.A. aptly noted, the admission of the evidence under the principled approach to the hearsay rule is not the only way the evidence of witnesses who may not be available for trial may be preserved. Sections 709 to 714 of the Criminal Code , R.S.C. 1985, c. C-46 , expressly contemplate this eventuality and provide a procedure for the taking of the evidence before a commissioner in the presence of the accused or his counsel thereby preserving both the evidence and the rights of the accused.
8 For reasons that follow, I would therefore dismiss the appeal and affirm the acquittals.
2. Background
9 Mr. Khelawon was charged with aggravated assault on Teofil Skupien and threatening to cause him death. He was also charged with aggravated assault and assault with a weapon on Atillio Dinino, and assault causing bodily harm on three other complainants. The offences were alleged to have occurred during the month of May 1999 and, at the time, all the complainants were residents at the Bloor West Village Retirement Home. Mr. Khelawon was the manager of the retirement home and his mother was the owner. As indicated earlier, none of the complainants was available to testify at trial. Hence, the central issue concerned the admissibility of their hearsay statements made to various people. There were 10 statements in total, four of which consisted of videotaped statements made to the police. The trial, held before Grossi J. without a jury, proceeded essentially as a voir dire into the admissibility of the evidence, with counsel agreeing that it would not be necessary to repeat the evidence about any statements later ruled admissible. None of the statements fit within any traditional exception to the hearsay rule. Their admissibility, rather, was contingent upon the Crown meeting the twin requirements of necessity and reliability under the principled approach to the hearsay rule, as established in Khan, Smith and, later, Starr.
10 The charges concerning Mr. Skupien are the only matters before this Court. I will therefore summarize the evidence concerning Mr. Skupien’s statements in more detail. I will also describe the circumstances surrounding the taking of the statements from the other complainants to the extent that it is relevant to dispose of this appeal. The Crown sought to introduce three statements made by Mr. Skupien: the first to an employee of the retirement home, the second to the doctor who treated him for his injuries, and the third to the police. Only the latter was admitted at trial. I will describe each statement in turn.
2.1 Mr. Skupien’s Statement to Ms. Stangrat
11 Mr. Skupien was 81 years old and, at the time of the events in question, he had lived at the Bloor West Village Retirement Home for four years. Mr. Skupien’s initial complaint was made to one of the employees at the retirement home, Joanna Stangrat. Ms. Stangrat, also known under several other names, was a cook who had been working at the retirement home for a few months. She had come to know Mr. Skupien because he would often visit the kitchen and would sometimes walk her to the subway at the end of her shifts. Ms. Stangrat played a prominent role in the case concerning Mr. Skupien. In part, it was the theory of the defence at trial that she had influenced Mr. Skupien and the other complainants in making their complaints out of spite because Mr. Khelawon had given her a notice of termination a few weeks earlier.
12 On May 8, 1999, Ms. Stangrat noticed that Mr. Skupien did not come to breakfast. She went to check on him in his room and found him lying on his bed. His face was red and there was blood around his mouth. When she got closer to him she saw bruising on his eye and nose. His eyes were swollen. When Mr. Skupien saw her, he asked her to come in and close the door. He appeared to be in shock and very shaky. Ms. Stangrat noticed two full green garbage bags on the floor. She closed the door and asked him what had happened and what was in the green garbage bags. Mr. Skupien told her what had happened the previous evening. He also showed her bruises on his upper left chest area.
13 Mr. Skupien told Ms. Stangrat that he had to leave before twelve o’clock that day because “Tony”, the name Mr. Khelawon went by, would come back and kill him. Mr. Skupien described to Ms. Stangrat how Mr. Khelawon had come into his room in anger at about 8:00 p.m. the previous evening, and had punched him repeatedly in the face and ribs. After beating him up, Mr. Khelawon had packed the clothes into the green garbage bags and left them on the floor. Ms. Stangrat asked Mr. Skupien why Mr. Khelawon would attack him in this way. He told her that Tony was angry because Mr. Skupien had been going to the kitchen when he had no reason to go there. When the assault ended, Mr. Khelawon threatened Mr. Skupien that either he moved out of the home by noon the next day or he would return and kill him. Mr. Skupien asked her what he should do. Ms. Stangrat told him she would phone her daughter to come and get him and that he should stay in his room until she was finished her duties for the day.
14 Ms. Stangrat arranged for Mr. Skupien to stay at her daughter’s home later that day, and then to her apartment. Mr. Skupien was in pain but he was scared and did not want to see a doctor at that time. Ms. Stangrat kept Mr. Skupien at her apartment where she and a friend of hers alternated caring for him. A few days later, Mr. Skupien agreed to go to the doctor. Ms. Stangrat and her friend took him to see Dr. Pietraszek.
2.2 Mr. Skupien’s Statement to the Treating Physician
15 On May 12, 1999, Dr. Pietraszek examined Mr. Skupien. He found visible bruising to Mr. Skupien’s face as well as bruises to his back and on the left side of his chest and noted that Mr. Skupien appeared to be in pain while breathing. X-rays revealed that he had suffered fractures to three ribs. Dr. Pietraszek testified that Mr. Skupien told him he had been hit in the face and body with something that was either a cane or a pipe. He denied any suggestion that Ms. Stangrat had related the story but acknowledged that she was present and may have helped him in describing what had happened. Dr. Pietraszek considered that the injuries were consistent with Mr. Skupien’s account of how they were caused. He also testified that the injuries could have resulted from a fall.
2.3 Mr. Skupien’s Videotaped Statement to the Police
16 The following day, on May 13, 1999, Ms. Stangrat took Mr. Skupien to the police. Detective Karpow took his complaint. He observed bruising to the left side of Skupien’s face, in the eye area. He arranged for Mr. Skupien to give a videotaped statement. Both Detective Karpow and Constable John Birrell were present. The statement was not given under oath; however, Mr. Skupien was asked if he understood that it was very important that he tell the truth and that if he did not tell the truth “[he] could be charged with that”. Mr. Skupien answered “Yes” to both questions. After a few other preliminary questions, he was asked what his complaint was. Mr. Skupien described how, on May 7, 1999, Tony came to his room and said: “enough is enough”. He then began beating him by slapping and punching him in the face, the ribs and all over, telling him not to go into the kitchen. He said that if he did not leave, he would come by 12 o’clock the next day and shoot him. Mr. Skupien then went on at some length to make several complaints about the general management of the retirement home until Detective Karpow brought him back to the matter at hand by asking him further questions about the incident and the events that followed. Mr. Skupien was generally responsive to the officer’s questions.
17 After the interview was completed, Mr. Khelawon was arrested.
2.4 Further Investigation
18 Ms. Stangrat gave the police a list of other people that she thought they should speak to at the retirement home. The next day, on May 14, 1999, several police officers attended the home to seek these people out. Because there were no markings on the doors, the police had to search through the residence, speaking to residents and nursing staff. When some of the people were located, they were found to be “unresponsive” and no meaningful interviews could be conducted with them. Others, however, were able and willing to speak. The police would identify themselves as police, then ask the residents how things were going at the home and if anything had happened to them that they wanted to talk about. The police arranged to take videotaped statements from those who wanted to speak to them. These included three of the other complainants, Mr. Dinino, Ms. Poliszak and Mr. Grocholska. The fourth complainant, Mr. Peiszterer, could not communicate with the police; however, his son provided a videotaped statement.
2.5 Medical Records
19 On May 15, 1999, Detective Karpow attended at the retirement home and met with Dr. Michalski, a physician who attended regularly at the home to see the residents. On May 18, 1999, the police returned to the home and seized the medical records and a journal containing nursing notes.
20 Documentation from Mr. Skupien’s file revealed that he had been living in an apartment before suffering a stroke in February 1995. He was transferred to the retirement home in April 1995. A report dated April 13, 1995 noted his condition after the stroke. He suffered occasional periods of confusion, could not go outside on his own, needed help with meal preparation and banking, and had to be reminded to take his medication, but was able to perform all self-care tasks.
21 Dr. Michalski’s file noted frequent contact with Mr. Skupien during his stay at the retirement home. From time to time, he was described as “depressed”, “aggressive”, “angry”, and “paranoid”. A diagnosis of paranoid psychoses was made in June 1998 and medication was prescribed. In July 1998, “some improvement in paranoia” was noted. In August 1998, he was described as “angry, hostile” and his dosage was increased. In August 1998, he was described as “confused”. The possibility of dementia was first noted. In September 1998, he was diagnosed with “depression” and prescribed medication. In September 1998, improvement with the depression was noted, and although apparently “eliminated” in January 1999, depression was again noted in February 1999. The notes also reflect a number of complaints of fatigue, weakness and dizziness.
2.6 Expert Evidence on the Voir Dire
22 Dr. Susan Lieff, a geriatric psychiatrist, was qualified to provide opinion evidence on the voir dire with respect to Mr. Skupien’s capacity to understand the importance of telling the truth and communicate evidence. She also provided an opinion with respect to Mr. Dinino. Her opinion was based solely on her review of the videotaped interviews and medical records. With regard to Mr. Skupien, Dr. Lieff testified that the videotape did not reveal any impaired judgment, delusions or hallucinations, or intellectual pathology. He seemed to comprehend what was asked and responded appropriately. In Dr. Lieff’s view, Mr. Skupien’s affirmative answer “Yes”, when advised of the need to be truthful, reflected a clear understanding. Dr. Lieff did not consult with Dr. Michalski but took issue with his diagnosis of “dementia”. In her opinion, the symptoms observed by Dr. Michalski were more likely side-effects of the anti-psychotic medication he was taking at the time. Dr. Lieff concluded that Mr. Skupien understood that it was important to tell the truth and that he had the capacity to communicate evidence.
3. Trial Judge’s Ruling on Admissibility
23 As a preliminary issue, the trial judge ruled that the four complainants who had given videotaped statements were competent at the time within the meaning of s. 16 of the Canada Evidence Act , R.S.C. 1985, c. C-5 , which he interpreted as requiring that “witnesses must know the importance of telling the truth and must be able to communicate the evidence”. In support of this finding, the trial judge relied on his own viewing of the videotapes and on Dr. Lieff’s opinion evidence. (The mental capacity of the hearsay declarant is a relevant factor on an inquiry into the statement’s admissibility as it may impact on the reliability of the hearsay statement; however, it is important to note that s. 16 has no application here. Section 16 sets out the threshold competency requirement for receiving the testimony of a witness in court. The threshold is a low one and the witness’s testimony, if received, is then subject to cross‑examination in the usual way, including on any relevant matter concerning the witness’s mental state. The inquiry into the admissibility of a hearsay statement may require more extensive probing into the declarant’s mental competency at the time of making the statement when there is no opportunity to cross-examine the declarant.)
24 After determining the s. 16 issue, the trial judge considered the necessity criterion. Although certain questions were raised at trial as to whether this criterion was met with respect to some of the complainants’ statements, none of the issues concerned Mr. Skupien and hence need not be reviewed here.
25 Finally, the trial judge turned to the question of threshold reliability. He determined that all videotaped statements to the police met the reliability requirement. In support of this finding, he noted that there was “nothing untoward in the police procedure in taking the statements” and, although three of the complainants’ statements were taken at the retirement home, rather than at the police station, he found that the “circumstances of taking the statements [were] as formal and solemn as could be expected in the situation”. He noted that there was “no animosity directed at the accused” by the complainants in their statements other than voicing their complaint. The complainants “appeared forthright”, they were “not evasive”, and they did not “attempt to overstate their injuries”. There were no “exceedingly leading” questions and, to the extent that there was leading, it went to weight rather than admissibility. All the statements were contemporaneous or made shortly after the events that they described. They knew their assailant well and there was no realistic alternative suspect. Further, both Mr. Skupien and Mr. Dinino had corroborating injuries.
26 The crux of the trial judge’s ruling, however, appears to have been his application of the decision of this Court in U. (F.J.) in which the complainant’s out‑of‑court statement was admitted on the ground of its “striking similarity” with the accused’s statement concerning the same events. Throughout his reasons, the trial judge made repeated references to the similarity between the statements and concluded that “the cumulative combination of similar points renders the overall similarity between the statements sufficiently distinctive to reject coincidence as a likely explanation”. While he found that the oral statements were also “sufficiently similar to fit the principle in R. v. U. (F.J.)”, he held, citing para. 217 in Starr as authority, that “to admit them would be oath-helping in that I have the video statements”.
27 In the trial judge’s view, the only real hearsay danger raised by the admission of the statements was the absence of cross-examination but, citing Smith as authority, he concluded that reliable evidence should not be excluded for this reason alone. The public interest in “the elderly receiving good care” allowed him “to take video statements together to bolster the complainants’ credibility”. He therefore ruled the videotaped statements admissible and the oral statements inadmissible.
28 At the conclusion of the trial, Grossi J. ultimately found only two of the videotaped statements sufficiently credible to found a conviction, those of Mr. Dinino and Mr. Skupien. Since this appeal concerns the admissibility ruling only, it is not necessary to review the reasons for conviction. It is common ground between the parties that if Mr. Skupien’s statements are inadmissible, the convictions must be set aside and the appeal dismissed.
4. Court of Appeal for Ontario (2005), 195 O.A.C. 11
29 Mr. Khelawon appealed his convictions on the ground that the trial judge erred in admitting the videotaped statements. The Court of Appeal was unanimous in finding that Mr. Dinino’s statement was not sufficiently reliable to warrant admission. A majority of the court found that Mr. Skupien’s statement was also inadmissible due to its unreliability.
30 All three justices interpreted the trial judge’s reasons as holding that without the similarity among the statements of the various complainants, none met the requirement of reliability and would therefore have been inadmissible (Rosenberg J.A., at para. 90; Blair J.A., at para. 29). The court therefore focussed on this aspect of the evidence and, indeed, the source of the disagreement between the majority and the dissent was whether the similarity of the statements was a permissible consideration in assessing reliability under the principled approach.
31 Rosenberg J.A., writing for the majority, held that the principle from U. (F.J.) could be applied only where the statements relate to the same event, and in most cases would be applied only where the declarant is available for cross‑examination (para. 114). Here, the statements related to different incidents. Although a trier of fact might conclude, using similar fact reasoning, that the same person committed all of the crimes, this is an issue going to ultimate reliability, not threshold reliability (para. 115). Only the latter is relevant in determining admissibility. In addition, Rosenberg J.A. held that the comparator statements must also be substantively admissible, because the final decision as to the likelihood of coincidence or collusion rests with the trier of fact (para. 128), and it would be odd for the trier of fact to be assessing ultimate reliability without access to “the very piece of evidence that convinced the trial judge that the statement was reliable” (para. 130). Grossi J.’s decision, therefore, was an impermissible expansion of the principle in U. (F.J.). Rosenberg J.A. also held, at para. 92, that such an expansion was inconsistent with the statement of Iacobucci J. in Starr, at para. 217, that “corroborating . . . evidence” should not be considered in determining threshold reliability.
32 In dissent, Blair J.A. held that the central notion underpinning the U. (F.J.) “exception” was that absent collusion, prior knowledge, or improper influence, “striking similarities between statements belie coincidence and therefore bolster the reliability of the statement under consideration” (para. 44). While