Floyd's Case — assault Cause Bodily Harm (domestic)

Between
Her Majesty the Queen, and
Floyd H.

[2002] O.J. No. 5516

Ontario Court of Justice
Brampton, Ontario
Judge Ready

Khan Application:  11 December 2002
(17 paras.)

¶ 1     READY J. (orally):  This was a Khan application brought this morning by the Crown attorney and the Crown is asking that the Court find in respect of a videotaped statement given by Janet H. under oath and after a warning that she acknowledged and signed that this Court ought to find reliability and necessity and introduce the exhibit on this voir dire, which is, I believe, Exhibit 2 — introduce it for the truth of its contents and thereby preclude as well, if I were to do so, Mr. Floyd H., who is the son of Janet H., the opportunity of cross-examining this witness.

¶ 2     There is no issue on this application — it has been conceded by defence counsel that the reliability issue is not an issue — that he would concede reliability on these particular facts. What is an issue is the necessity criteria. The Crown has provided the R. v. Khan decision, [1992] S.C.R. 531, and also the R. v. Hawkins decision. It is cited as Hawkins and Moran v. The Queen, at 111 C.C.C. (3d) at 129. Those two decisions seem to set out the test which is that of reasonableness: reasonably necessity, reasonable reliability.

¶ 3     The necessity issue. The Crown has lead evidence to establish, in this Court's opinion today, that the witness Janet H. is an elderly female around or over the age of 89 by this time, and, as of today's date, when telephone contact was made with her by a German-speaking officer, it is confirmed that she is in Germany presently.

¶ 4     The Crown is contending, based upon the evidence that they've called, that reasonably necessary or reasonable necessity is established by the very fact that this individual is out of the jurisdiction. She is in Germany and the Crown has basically argued that first of all it is clear that, as a result of a memo before the Court, that the Crown Attorney's office is not going to pay her ticket, her airfare back from Germany to Canada, and, secondly, they have asked this Court to infer that here is an 89 year old female and the journey of thousands of miles across the ocean from Germany would be a very hard thing for her, an arduous task. In addition, they have asked this Court to infer that she should not be expected to pay her own way back. Accordingly, the Crown has argued that reasonably necessary and the necessity criteria have been made out.

¶ 5     Defence counsel has argued on behalf of his client that in order to come to the conclusion of necessity, the added task that the Court has to look into is whether or not in coming to a decision of this necessity and whether it's reasonably necessary, the Court has to also be satisfied in some regards that the Crown has shown reasonable diligence where it is an issue of an individual being out of the country. Reasonable diligence is to try to secure the attendance of the witness.

¶ 6     The Crown Attorney has responded and said that the cases of Moran and Hawkins and The Queen and Khan do not set out to request witnesses. The Crown in Khan do not set out this showing of reasonable diligence to try to secure the attendance of the witness per se when the issue is that they're out of the country, out of the jurisdiction. Whether you consider in coming to a conclusion of what is necessity and the reasonably necessary criteria, whether you look at that and say in order to come to that conclusion you have to look at absolutely all of the facts that we have here today, including what steps were taken to bring her here or if you look at the definition that defence counsel says is included in this definition of necessity where an individual is out of the jurisdiction by showing a reasonable diligence to try to secure the attendance of the witness, whether you look at it in this regard or in just looking at all of the facts and try to come to a decision about reasonably necessary, I don't think there is really much difference between what defence counsel is asking this Court to look at it and decide and what the Crown Attorney is asking this Court to decide.

¶ 7     What facts do we have before us on this application? My recollection of the evidence, and this is just very generally, is that it is alleged that Janet H. is the victim of bodily harm and also threats from her son. She is an 89 year old female. I believe her son is somewhere in the area of 58 years of age. There is some allegation over the last three weeks that they were residing together at a residence in Brampton and that he was quite assaultive towards her, pushing her, striking her, pushing tables into her causing bruising and a number of bruises and scabs on her body, including her face and arms and her back. It is clear that upon a neighbour calling the police, the police became involved and she made a statement to the police under oath and after she had received a KGB warning, which is an exhibit before the Court. And she proceeded to tell her version of the events, of how the relationship she and her son had ended up over the last three weeks and that she was wanting to leave on this occasion.

¶ 8     It is clear from the evidence that this is an individual, Janet H., who is an elderly woman, that she has, apart from her son, no relatives in the immediate area and her only real connection here is, in addition to her son, she had a friend down in Toronto. And my understanding of the evidence is that this individual — I believe it was Arpin or Elpin (ph) — she went to stay with her after she was assaulted by the police. Also from the hearsay evidence on this application that is before the Court, it was the officer's understanding that one of the officers, Constable B***, that these people in Toronto were trying to help her find a place to stay.

¶ 9     In the first officer's evidence, Constable B***, indicated that when it was getting closer to the time that he had to ensure witnesses were subpoenaed for Court, he was having difficulty when either the summons or the subpoena came back and he had the constable look into this matter for him. I believe it was the other — no, I'm sorry — I believe that the evidence was from Constable B*** that he knew as of May of 2002 that there were problems with locating this witness and he, in fact, took steps to try to locate the witness. He later learned from this connection in Toronto that this when Janet H. had left for Germany in May. A number or telephone numbers, either one or two of them, were provided and an address was provided for her. The officer was in receipt of that evidence but did nothing to look further into it until we get into the months of October or November, shortly before this trial date.

¶ 10     The evidence is clear that the officer, Constable B***, very later on, in either October or November, I believe he said, having this evidence, attempted to call one number and found that the number was out of service. He called another number and he always spoke with somebody in spoken German. He didn't understand what they were saying so he left it at that. He never sought the assistance of a German-speaking officer, he never sought the assistance of this individual who had a connection with this witness, this individual in Toronto, to try to get a message on when and he basically just left it at that. It is clear from memos that were circulated that there was a problem with locating this witness but the Crown attorney's position was that they weren't going to pay to bring somebody from Germany and they were going to have to proceed by way of her statement to the police.

¶ 11     So it is clear from the evidence that I have before me that, in May, there was a problem. In May, they may well have been aware of a potential place they could contact this witness in Germany. Nothing was done. It was sat on for a number of months. They start phone calls to no avail. They get a German-speaking individual in one phone call that they were able to get through on and they don't follow through with that. No letters are ever sent. Nothing is ever directed to the person in Toronto or the mother or the daughter in Toronto who are friends of the complainant and nothing is done virtually other than to decide that they are not going to do anything about this witness. They are going to proceed on the basis of a Khan application using the complainant's statement.

¶ 12     It is also clear that, as I say, there was no attempt to write to her to ascertain whether or not she wanted to come to or even advise her of the upcoming trial date here in December. It is also clear that, over the break, it was agreed certain inquiries were made by a German-speaking officer and it is agreed that the evidence is that that officer today, able to speak German, got through to Janet H. in Germany and confirmed as of today's date that she is in Germany. Nothing more was discussed with her, whether or not she would be willing to come back to Canada, whether or not she could physically, mentally, was she too frail to travel back, would she be too upset about coming back to Canada to face her son and deal with these allegations in Court. Nothing was done, even though there was an opportunity to address some of these issues today on the telephone.

¶ 13     It is also clear that on November the 8th of this year the decision was made that they are not going to bring her back from Germany if that's where she was and they will have to proceed by way of a Khan application.

¶ 14     I believe I have reviewed all of the evidence as I recall it on this application, and I have come to the conclusion that whether or not you use the definition as set out by the two provincial Court level decisions that were presented by defence counsel in the matter of Justice Stone here at Youth Court in Oshawa, Ontario, our level of Court, Ontario Court of Justice, R. v. M.N., and it is cited at [2002] O.J. No. 2221, whether or not you look to the issue of being out of the country and necessity, including the definition of the Court having to show some reasonable diligence to secure the attendance of the witness, or whether or not you just looked at all of the factors in coming to an assessment of what is reasonably necessary when a witness is out of the jurisdiction, as set out in the two decisions provided by the Crown attorney, whether or not I look at all of the factors in coming to a conclusion as to what is reasonably necessary or, as I say, use that definition of due diligence, I think it matters little.

¶ 15     I have come to the conclusion that there is little difference between the two approaches to reasonable necessity where the person is out of the jurisdiction and I have come to the conclusion on looking at all of the factors here, all of the things that have occurred with respect to this matter, the Crown has not satisfied this Court that the issue of reasonable necessity or reasonably necessary has been made out here. Even taking a flexible approach, I think you have to look at everything that has happened here and it wasn't until — and I still don't know so much about the situation here, whether this witness would have come if she had been approached somehow earlier, whether she would have come, whether she could have afforded to come to, whether she was too old and frail to come to back to Canada, whether she was traumatized by coming back to Canada, we have no such evidence that I can come to a conclusion, and even today when they actually made contact with the woman in Germany, I have so little, other than she is in Germany and that's the end of the matter.

¶ 16     So based upon evidence that I do have and the lack of evidence that faces this Court with respect to steps taken by the Crown Attorney, even on speaking with her today, I am not so satisfied that on these particular facts the Crown could establish to this Court that it is reasonably necessary, that the reasonable necessity criteria has been made out on these particular facts. I think that certainly the Court has to look at it in coming to the conclusion that the steps taken by the state, the steps taken by the Crown, to find out what the situation is with this witness and to say that she is out of the country and we've done this to try to get her back but it is just not going to work. I think the Crown has to, in satisfying this Court as to the reasonable necessity criteria, there has to be something more than what took place here on this particular prosecution.

¶ 17     Accordingly, I would find that the Crown has not established reasonable necessity and I would not find that the videotape statement ought to form an exhibit for the truth of its content for the purposes of this prosecution. The Khan application fails.

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