R. v. Khelawon (R.), (2005) 195 O.A.C. 11 (CA)

• Judge: Rosenberg, Armstrong and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 28, 2005
• Jurisdiction: Ontario
• Citations: (2005), 195 O.A.C. 11 (CA)

R. v. Khelawon (R.) (2005), 195 O.A.C. 11 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. MR.001

Her Majesty the Queen (respondent) v. Ramnarine Khelawon (appellant)

(C38427)

Indexed As: R. v. Khelawon (R.)

Ontario Court of Appeal

Rosenberg, Armstrong and Blair, JJ.A.

February 28, 2005.

Summary:

The accused was found guilty of assault causing bodily harm and assault with a weapon in relation to Dinino. He was found guilty of aggravated assault and uttering death threats in relation to Skupien. The accused appealed. The issue was whether the trial judge erred in ruling that the videotaped statements of the complainants, deceased at the time of the trial, were admissible as proof of the truth of their contents, pursuant to the principled exception to the hearsay rule. The statements were central to the Crown's case and counsel agreed that if the statements were inadmissible, acquittals should be entered.

The Ontario Court of Appeal allowed the appeal. Both statements were inadmissible. Blair, J.A., dissented respecting the admissibility of the statement by Skupien. The accused was acquitted.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal stated that, in determining threshold reliability, the trial judge must have resort only to the surrounding circumstances under which the statement was made, and may not take into account matters extrinsic to those circumstances - The court noted that there appeared to be some exceptions to this tenet: (1) presence or absence of a motive to fabricate; (2) the relationship between the declarant and the person about whom the statement was made; and (3) striking similarity between two statements where the witness was available for cross-examination - See paragraphs 24 and 25.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal, ruling on threshold reliability, held that a videotaped statement made to the police by the complainant Dinino, who died before the accused's criminal trial, was inadmissible where: (1) the statement was unsworn and no warning was given to Dinino about the importance of telling the truth and the consequences of not doing so; (2) the discussion with Dinino was only partially recorded; (3) the statement was barely intelligible in places and the officer who received the statement conceded that some of the video was inaudible, that he had to draw answers out of Dinino and that there were some things that he, the officer, did not understand - See paragraphs 74 to 82.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal followed the Supreme Court of Canada and said that it was not open to a court, when the declarant respecting one event was not available for cross-examination, to rely upon statements of other witnesses relating to other events to meet the threshold reliability requirement - Applied here, this meant that the videotaped statement of a complainant who died before the accused's criminal trial was inadmissible - However, the court did not preclude the use of "strikingly similar" statements of other witnesses when those statements and the unavailable declarant's statement referred to the same event - See paragraphs 90 to 127.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal stated that specific evidence of the declarant's mental state was admissible on the threshold reliability inquiry - Thus, in this case, the Crown led evidence from a geriatric psychiatrist about the mental condition of the elderly complainants - The psychiatrist viewed the videotaped statements the complainants made to the police - She also reviewed their medical records - The court held that this evidence was properly admitted at trial on the issue of threshold reliability and would be of great assistance on the question of ultimate reliability - See paragraphs 102 and 103.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - Blair, J.A., dissenting, held that comparator statements need not be substantively admissible and thus, he relied on a videotaped statement made by another witness (the comparator statement) in deciding on the threshold reliability of a videotaped statement made by Skupien, a declarant unavailable for cross-examination - The majority of the Ontario Court of Appeal feared that the analysis proposed by Blair, J.A, dissenting, confounded threshold reliability with ultimate reliability - The majority mentioned that in R. v. F.J.U., the Supreme Court of Canada had held that the comparator statement had to be substantively admissible - See paragraphs 128 to 130.

Cases Noticed:

R. v. Merz (H.J.) (1999), 127 O.A.C. 1; 140 C.C.C.(3d) 259 (C.A.), consd. [paras. 19, 109].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [paras. 20, 91].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, consd. [para. 95]; refd to. [para. 20].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [paras. 20, 89].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 24].

R. v. Conway (J.) et al. (1997), 106 O.A.C. 81; 121 C.C.C.(3d) 397 (C.A.), refd to. [para. 24].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97, consd. [paras. 24, 99].

R. v. Pearson (1994), 95 C.C.C.(3d) 365 (B.C.C.A.), refd to. [para. 31, footnote 4].

Child and Family Services of Winnipeg v. L.L. and C.L., [1994] 6 W.W.R. 457; 95 Man.R.(2d) 16; 70 W.A.C. 16 (C.A.), refd to. [para. 31, footnote 4].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 31].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 31].

R. v. B.C. and K.G. (1933), 62 O.A.C. 13; 80 C.C.C.(3d) 467 (C.A.), refd to. [para. 31].

R. v. Nguyen (S.V.) (2001), 281 A.R. 91; 248 W.A.C. 91; 153 C.C.C.(3d) 495 (C.A.), consd. [paras. 39, 127].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; 62 C.C.C.(3d) 193, refd to. [para. 40].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289, refd to. [para. 40].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [paras. 40, 89].

R. v. Chrisanthopoulos (J.) (2003), 180 O.A.C. 124 (C.A.), consd. [paras. 41, 114].

R. v. Chang (A.) and Kullman (G.) (2003), 170 O.A.C. 37; 173 C.C.C.(3d) 397 (C.A.), consd. [paras. 41, 119].

R. v. R.R. (2001), 151 O.A.C. 1; 159 C.C.C.(3d) 11 (C.A.), affd. (2003), 300 N.R. 230; 169 O.A.C. 180; 171 C.C.C.(3d) 575 (S.C.C.), consd. [paras. 41, 123].

R. v. Misir (M.) (2001), 150 B.C.A.C. 52; 245 W.A.C. 52; 153 C.C.C.(3d) 70 (C.A.), leave to appeal dismissed (2002), 291 N.R. 200; 172 B.C.A.C. 171; 282 W.A.C. 171 (S.C.C.), consd. [paras. 41, 125].

R. v. Dubois (1997), 118 C.C.C.(3d) 544 (Que. C.A.), refd to. [paras. 45, 126, footnote 12].

R. v. Harvey (R.S.) (1996), 80 B.C.A.C. 40; 130 W.A.C. 40; 109 C.C.C.(3d) 108 (C.A.), refd to. [paras. 45, 126, footnote 12].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481 (S.C.C.), consd. [para. 49].

R. v. Shearing (I.) (2002), 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 165 C.C.C.(3d) 225, consd. [para. 49].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 323, refd to. [para. 49].

R. v. Paul (A.) (2002), 166 O.A.C. 330; 170 C.C.C.(3d) 107 (C.A.), refd to. [para. 49].

Idaho v. Wright (1990), 497 U.S. 805, refd to. [para. 52].

R. v. Moonias (B.) (2004), 192 O.A.C. 327; 2004 CarswellOnt 5210 (C.A.), consd. [para. 76].

R. v. Nicholas (E.S.) (2004), 184 O.A.C. 139; 182 C.C.C.(3d) 393 (C.A.), refd to. [para. 83].

R. v. Fleet (E.J.) (2001), 198 N.S.R.(2d) 228; 621 A.P.R. 228; 163 C.C.C.(3d) 177 (C.A.), refd to. [para. 83].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 99].

R. v. Robertson (1975), 21 C.C.C.(2d) 385 (Ont. C.A.), refd to. [para. 103].

Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), consd. [para. 104].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294; 68 C.C.C.(2d) 193, refd to. [para. 116].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 119].

R. v. J.A.S., [2004] A.R. Uned. 214 (C.A.), refd to. [para. 127].

Authors and Works Noticed:

Delisle, R.J., Annotation to R. v. Nguyen (2001), 42 C.R.(5th) 36, generally [para. 93, footnote 9].

Lacelle, Laurie, The Role of Corroborating Evidence in Assessing the Reliability of Hearsay Statements for Substantive Purposes (1999), 19 C.R.(5th) 376, generally [para. 32]; pp. 387 [para. 105]; 391, 392 [para. 94].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), pp. 100 to 103 [para. 32].

Stuart, D., Starr and Parrot: Favouring Exclusion of Hearsay to Protect Rights of Accused (2001), 39 C.R.(5th) 284, p. 286 [paras. 32, 93, 106].

Stuesser, Lee, R. v. Starr and Reform of the Hearsay Exceptions (2001), 7 Can. Crim. L. Rev. 55, generally [para. 32].

Tanovich, David M., Starr Gazing: Looking into the Future of Hearsay in Canada (2003), 28 Queen's L.J. 371, para. 64 [para. 32].

Counsel:

John McInnes and Elliott Behar, for the respondent;

Timothy E. Breen, for the appellant.

This appeal was heard on August 10, 2004, by Rosenberg, Armstrong and Blair, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on February 28, 2005, and the following reasons were filed:

Blair, J.A. (dissenting in part) - see paragraphs 1 to 86;

Rosenberg, J.A. (Armstrong, J.A., concurring) - see paragraphs 87 to 132.