



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Taylor, 2012
    ONCA 809

DATE: 20121122

DOCKET: C53602

Winkler C.J.O., Rosenberg and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dayntry Taylor

Appellant

Richard Litkowski, for the appellant

Eliott Behar, for the respondent

Heard: October 10, 2012

On appeal from the conviction entered by Justice Richard
    J. LeDressay of the Ontario Court of Justice, sitting without a jury, on
    September 23, 2010, and from the sentence imposed on December 3, 2010.

Rosenberg J.A.:

[1]

The appellant appeals from her conviction and sentence on a charge of
    fraud following a trial before LeDressay J. The appeal turns entirely on the
    admissibility and use of a statement the complainant made to the police prior
    to her death. The appellant submits that this hearsay statement should not have
    been admitted into evidence and, having been admitted, should not have been
    found sufficiently reliable to found a conviction.

[2]

The appellants principle submission turns on the application of the
    principled approach to what counsel terms a testimonial statement, that is, a
    statement taken by the police in circumstances where it is likely that the
    statement will be used in evidence. Mr. Litkowski, counsel for the appellant,
    contrasts this kind of statement with other statements that have been admitted
    under the principled approach, such as those dealt with by the Supreme Court of
    Canada in cases such as
R. v. Khan
, [1990] 2 S.C.R. 531 and
R. v.
    Smith
, [1992] 2 S.C.R. 915. He also contrasts this kind of statement with
    K.G.B. statements [
R. v. B. (K.G.),
[1993] 1 S.C.R. 740] or the
    statement dealt with by the court in
R. v. U. (F.J.)
, [1995] 3 S.C.R.
    764. While such statements are taken in contemplation of litigation, their
    admissibility is premised on the availability of the complainant for
    cross-examination at the trial.

[3]

The appellant submits that the effect of the trial judges ruling was to
    create an unfair imbalance in that the complainants evidence was received
    untested through cross-examination. On the other hand, the appellant was
    subjected to a searching cross-examination, a cross-examination that exposed
    fatal flaws in her claim that the complainant consented to her taking most of the
    complainants savings for the appellants own use. In his interesting and
    helpful submissions, Mr. Litkowski relies upon the ruling of the Grand Chamber
    of the European Court of Human Rights on two appeals from the United Kingdom:
Al-Khawaja
    and Tahery v. The United Kingdom
[GC], nos. 26766/05 and 22228/06 (15
    December 2011).

[4]

The appellant also appeals the sentence imposed of 21 months
    imprisonment to be followed by two years probation. The trial judge also made a
    restitution order in the amount of $126,464.54.

[5]

For the following reasons, the appeal from conviction and sentence is
    dismissed.

A.

THE FACTS

[6]

From shortly before 2005 until the fall of 2007, the appellant was the
    regular caregiver to the complainant, Ms. Dokaupe, a relatively frail, elderly
    woman who lived alone in an apartment in Burlington. The complainant faced some
    serious physical challenges that left her mainly home-bound. She had spent most
    of her adult life working for the Halton District School Board. She took early
    retirement in the 1980s with a pension and savings of almost $165,000. During
    the time that the appellant worked as her caregiver, the complainant came to
    rely on her for a number of daily needs. The complainant also befriended the
    appellant and her family.

[7]

In 2005, at the suggestion of the appellant, the complainant had a
    lawyer prepare a will and power of attorney. The appellant acted as the
    attorney and was named the executor of the complainants estate. In February
    2006, the appellant went to the bank where the complainant did her banking and,
    using her power of attorney, had a bank card issued for herself on the
    complainants savings account. The evidence, independent of the complainants
    hearsay statement, established that from February 2006 to September 2007, the
    appellant used the bank card to empty the savings account of over $126,000, all
    but $17,000. The independent evidence also established that this money was used
    for the appellants own needs, not those of the complainant, and that during
    this period, the appellant continued to draw a salary for the care-giving
    services she performed for the complainant.

[8]

In late August 2007, the appellant left the complainants employment.
    One month later, another of the complainants caregivers, Vanessa Rapedius,
    read the complainants bank statements. After informing the complainant about
    what had happened to the savings account, Rapedius contacted the police. The
    complainant was contacted by a police officer who began an investigation.
    Several months later, on April 17, 2008, another police officer took a
    videotaped statement from the complainant. The elderly complainant died before
    the trial on December 19, 2008.

[9]

When she provided the video statement, the complainant was 90 years of
    age. She had no criminal record. The statement began with the police officers
    explanation that the statement was being videotaped and that it would be taken
    under oath. The officer explained the penal consequences of public mischief,
    obstruct justice, and perjury if the statement was false. A commissioner for
    oaths administered the oath to the complainant. The complainant then provided a
    detailed statement in which she denied knowing about the bank card or giving
    the appellant permission to withdraw funds from her savings account.

[10]

In
    her statement, the complainant disclosed that she was taking a number of
    prescription medicines. She explained the purpose of each of the medications.
    No independent evidence was adduced at the
voir dire
about the effect
    of this medication. At the trial proper, after the trial judge admitted the
    videotaped statement, the complainants family physician testified and
    explained that none of the medications would have affected the complainants
    mental ability.

[11]

On
    January 24, 2008, Dr. Lightfoot, a psychologist who is a designated capacity
    assessor, met with the complainant and provided an opinion that the complainant
    had the mental capacity at that time to modify her will and to appoint or
    revoke a continuing power for attorney for property. Dr. Lightfoot testified at
    the
voir dire
after viewing the videotaped statement. Dr. Lightfoot
    testified that at the time of the interview, the complainant was mentally
    capable of managing her property.

[12]

The
    contents of the videotaped statement reveal a possibility that the complainant
    was upset with the appellant because the appellant abruptly terminated her employment
    contract. The trial judge was of the view that while the complainant may have
    fabricated the allegations, the better view was that she was concerned about
    the appellants well-being because she had suddenly disappeared. There was no
    evidence and no logical inference  that Ms. Dokaupe had a motive to fabricate
    her story. On the other hand, there was insufficient evidence to conclude that
    the complainant had no known motive to fabricate the entire story.

B.

THE TRIAL JUDGES RULING

[13]

The
    trial judge recognized that the videotaped statement, as hearsay, was
    presumptively inadmissible and did not fall within any of the recognized
    exceptions to the hearsay rule. He found that the statement could be admitted
    under the principled approach to hearsay. The necessity requirement was made
    out because of the death of the complainant. The requirement for threshold
    reliability was satisfied as a result of a number of circumstances. The
    statement was under oath with clear cautions as to the legal consequences of providing
    a false statement. The complainant had no criminal record and appeared to take
    the warnings seriously. She appeared to understand her moral obligation to tell
    the truth. The statement was provided voluntarily and was not the product of
    threats, promises or any form of coercion. The statement was video recorded in
    its entirety and thus the court was able to examine the complainants
    demeanour. The complainant had an ability to recall events and to provide
    specific and detailed information. There was no evidence of any mistake or any
    diminished or distorted mental capacity.

[14]

The
    trial judge looked at whether there was extrinsic evidence either confirming or
    undermining the reliability of the statement. He noted that virtually
    everything in the statement was confirmed by the bank records. He recognized,
    however, that the question of consent was a crucial issue in the case and that there
    was no evidence confirming the complainants assertion that the money was
    withdrawn from her savings account without her consent. The trial judge found
    that there was no extrinsic evidence undermining the truthfulness of the
    complainants account in the statement. The trial judge was satisfied that
    there was little likelihood that the statement was a product of pressure from
    Ms. Rapedius. The complainants responses to the questions from the police
    officer were intelligent, detailed and comprehensive. There was no indication
    that her memory was faulty or that her answers did not originate from her own
    experience.

[15]

Finally,
    the trial judge took into account the fact that cross-examination is the main
    factor that ensures the integrity of the trial process. He noted the defence
    argument that credibility was the crucial factor in the case and that
    cross-examination of the complainant would be essential for the court to
    resolve the credibility issue. The trial judge nevertheless found that the
    criteria of necessity and reliability had been met and that the statement
    should be admitted.

[16]

At
    the trial proper, the trial judge found that the statement was sufficiently
    reliable to found the conviction. In addition to the factors considered on the
    earlier admissibility ruling, the trial judge took into account the evidence
    from the complainants family physician who explained that the various
    medications the complainant was using would not have affected her mental functioning.
    The trial judge noted that there was not a shred of evidence to contradict the
    complainants statement that her life savings were rapidly depleted without her
    knowledge and consent. The suggestion that the complainants assertions were either
    the result of pressure or influence from others or because the complainant was
    upset that the appellant stopped visiting her were very weak and largely
    speculative. The trial judge also dealt with the defence submission that in
    several areas, the complainants evidence might have changed had there been
    cross-examination. In cogent reasons, he explained why it was unlikely that the
    complainants evidence would have changed significantly in cross-examination.

[17]

Finally,
    the trial judge referred to the appellants testimony, which was seriously
    undermined in cross-examination. The trial judge was satisfied that the
    prosecutions case was made out beyond a reasonable doubt.

C.

ANALYSIS

[18]

The
    admissibility of the statement in this case rests on the test set forth in
    cases from the Supreme Court of Canada, such as
R. v. Khelawon
, 2006
    SCC 57, [2006] 2 S.C.R. 787,
R. v. Couture
, 2007 SCC 28, [2007] 2
    S.C.R. 517 and
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298.
    Contrary to the submission of counsel for the appellant, the admissibility of
    this statement cannot be determined under the approach taken by the European
    Court of Human Rights in
Al-Khawaja and Tahery
. While that decision is
    interesting and provides a helpful survey of developments in the hearsay rule
    in various common law and other countries, its context is rooted in specific
    United Kingdom statutory provisions, such as ss. 23 to 28 of the
Criminal
    Justice Act 1988
(U.K.), 1988, c. 33; Part 11, Chapter 2 of the
Criminal
    Justice Act 2003
(U.K.), 2003, c. 44; and, most importantly, Article 6 §§ 1
    and 3(d) of the
Convention for the Protection of Human Rights and
    Fundamental Freedoms
, 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S.
    5 [
ECHR
]
.
Article 6 § 3(d) is a form of confrontation
    guarantee similar to the Sixth Amendment to the United States Constitution.
    Article 6 §§ 1 and 3(d) provide as follows:

1.  In the determination of his civil rights and
    obligations or of any criminal charge against him, everyone is entitled to a
    fair and public hearing within a reasonable time by an independent and
    impartial tribunal established by law....

3.  Everyone charged with a criminal offence has the
    following minimum rights:

...

(d)  to examine or have examined witnesses against
    him and to obtain the attendance and examination of witnesses on his behalf
    under the same conditions as witnesses against him.

[19]

While
    the
Canadian Charter of Rights and Freedoms
in ss. 7 and 11(d) provides
    broad fair trial guarantees, it does not include an explicit guarantee to
    confront the witnesses.

[20]

In
    its decision in
Al-Khawaja and Tahery
, the Grand Chamber of the European
    Court of Human Rights adopted a somewhat more flexible approach to the
    admission of hearsay than had previously been used by the court. Previously,
    the court had rigidly applied a sole or decisive rule. As explained in
Unterpertinger
    v. Austria
[1986] E.H.C.R. 9120/80, (1991) 13 E.H.R.R. 175, at para. 33,
    the rule provides that if the conviction of a defendant is solely or mainly
    based on evidence provided by witnesses whom the accused is unable to question
    at any stage of the proceedings, his defence rights are unduly restricted (
Al-Khawaja
    and Tahery
, at para. 128). Such restriction on the defence rights is
    incompatible with the guarantees provided by Article 6:
Lucà v. Italy
,
    [2001] E.H.C.R. 33354/96, (2003) 36 E.H.R.R. 46, at para. 40. In
Doorson v.
    the Netherlands,
[1996] E.H.C.R. 20524/92, (1996) 22 E.H.R.R. 330, at
    para. 70, the court held that, even in a case where there was a justification
    for the failure to call a witness (what we would term necessity), a conviction
    based solely or to a decisive extent on evidence of that witness would be
    unfair.

[21]

In
Al-Khawaja and Tahery
, the court affirmed its continued adherence to
    the sole or decisive rule, subject to the proviso that there may be
    circumstances in which hearsay that is decisive of the case may nevertheless be
    admissible. As the court said, at para. 139:

The Court similarly cannot accept the third argument [by the
    government of the United Kingdom] that the sole or decisive rule is predicated
    on the assumption that all hearsay evidence which is crucial to a case is
    unreliable or incapable of proper assessment unless tested in cross-examination.
    Rather, it is predicated on the principle that the greater the importance of
    the evidence, the greater the potential unfairness to the defendant in allowing
    the witness to remain anonymous or to be absent from the trial and the greater
    the need for safeguards to ensure that the evidence is demonstrably reliable or
    that its reliability can properly be tested and assessed.

[22]

While
    this approach is somewhat more flexible than that laid out in the courts
    earlier decisions, it remains rooted in Article 6 and the principle that the
    admissibility of hearsay and trial fairness are inextricably linked to the
    importance of the evidence. As the court said, at para. 143:

the Court has consistently assessed the impact that the
    defendants inability to examine a witness has had on the overall fairness of
    his trial. It has always considered it necessary to examine the significance of
    the untested evidence in order to determine whether the defendants rights have
    been unacceptably restricted[.]

The court explained the modified sole or decisive rule
    in these terms, at para. 147:

The Court therefore concludes that, where a hearsay statement
    is the sole or decisive evidence against a defendant, its admission as evidence
    will not automatically result in a breach of Article 6 § 1. At the same time
    where a conviction is based solely or decisively on the evidence of absent
    witnesses, the Court must subject the proceedings to the most searching
    scrutiny. Because of the dangers of the admission of such evidence, it would
    constitute a very important factor to balance in the scales, to use the words
    of Lord Mance in
R. v. Davis
[[2008] UKHL 36, [2008] 1 A.C. 1128], and
    one which would require sufficient counterbalancing factors, including the
    existence of strong procedural safeguards. The question in each case is whether
    there are sufficient counterbalancing factors in place, including measures that
    permit a fair and proper assessment of the reliability of that evidence to take
    place. This would permit a conviction to be based on such evidence only if it
    is sufficiently reliable given its importance in the case.

[23]

The
    approach adopted by the Supreme Court of Canada is different. As Charron J.
    observed in
Khelawon
, at para. 47, the inquiry into admissibility of
    hearsay in the criminal context may take on a constitutional dimension. This is
    because the accuseds difficulty in testing the prosecution evidence may impact
    on the ability to make full answer and defence. In the same paragraph, she also
    noted the link between the right to make full answer and defence and the right
    to a fair trial. It would compromise trial fairness if the prosecution were
    allowed to introduce unreliable hearsay.

[24]

But,
    trial fairness concerns and the admissibility of hearsay are not reconciled by
    resort to a sole or decisive rule, which asks how important the evidence is to
    the outcome. Rather, under the Supreme Courts principled approach, the court
    examines all the relevant circumstances to determine whether the evidence is
    sufficiently reliable to overcome the dangers arising from the difficulty of
    testing it. Further, there is nothing in the Supreme Courts decisions that
    warrant carving out a special type of evidence, which Mr. Litkowski describes
    as testimonial. Rather, the fact that the statement may have been taken by the
    police in contemplation that it might be used in litigation is merely one
    circumstance the court must take into account. That fact does not give rise to
    a special category of evidence requiring searching scrutiny.

[25]

In
    some circumstances, the fact that the state might have availed itself of other
    methods of preserving the evidence may tell against necessity, as Charron J.
    explained in
Khelawon
, at para. 104. But the importance of the
    evidence or its testimonial quality does not place the evidence in a special
    category. That said, as pointed out at para. 49 of
Khelawon
, because
    trial fairness may involve factors beyond simply necessity and reliability, the
    trial judge retains a discretion to exclude hearsay evidence where its prejudicial
    effect outweighs its probative value.

[26]

I
    turn then to consideration of the admissibility of the hearsay evidence in this
    case. No question of necessity arises; the death of the complainant fulfills
    the necessity criterion. This case turns on whether the complainants statement
    to the police had sufficient threshold reliability to warrant its reception. As
    is well known, threshold reliability may be demonstrated because of the
    circumstances in which it came about or because in the circumstances its truth
    and accuracy can nonetheless be sufficiently tested:
Khelawon
, at
    paras. 49, 62-63. However, these two different grounds are not watertight
    compartments:
Khelawon
, at para. 49.

[27]

The
    complainants statement in this case had elements of both grounds. Like
    testimony in court, it was taken under oath and the trier of fact could observe
    the declarants demeanour throughout because of the complete video recording. The
    complainant was warned of the criminal consequences of not telling the truth,
    which was an additional safeguard that is not explicitly found in courtroom
    testimony.

[28]

The
    other circumstances under which the statement was taken supported its
    reliability. The principal concern in this case was not dishonesty but whether
    the complainant could accurately recall the events. The trial judge, whose
    findings in this respect are entitled to deference, found that there was no
    concern in that regard. The complainant was able to recall events and to
    provide specific and detailed information. There was nothing in the statement or
    the surrounding circumstances to show that the complainant was mistaken or that
    her mental capacity was in any way diminished or distorted. In this respect,
    the trial judge had the assistance of the evidence of a psychologist, Dr.
    Lightfoot, the designated capacity assessor, who fortuitously had assessed the
    complainant only months before the statement was taken by the police.

[29]

The
    complainants statement in this case can be usefully compared to the evidence
    considered in
Khelawon
. The declarant in that case did not give his
    statement under oath and there was reason to doubt whether the declarant
    understood the consequences of making his statement. There were serious reasons
    to doubt whether he was mentally competent when he made the statement and he
    may have been motivated by dissatisfaction about the nursing home where the
    assault allegedly occurred and under the influence of a disgruntled employee of
    the home.

[30]

In
Khelawon
, the court also held that a trial judge can consider all the
    circumstances, including the presence of corroborating or conflicting evidence.
    In this case, the trial judge was of the view that there was no corroborating
    evidence because there was nothing to confirm the complainants evidence on the
    sole fact put in issue by the appellant, which was that she had the
    complainants consent to take money out of the complainants savings account
    for her own use. In reaching that conclusion, the trial judge may have taken an
    overly cautious approach. In considering all the surrounding circumstances, a
    court need not be restricted to the kind of corroboration that characterized
    the accomplice rule before
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[31]

There
    was abundant, incontrovertible independent evidence confirming virtually every
    part of the complainants story. Bank records and other records show that at
    the same time she was being paid by the complainant, the appellant was
    regularly taking money from the savings account for her own use. This is the
    kind of evidence referred to in
R. v. Khela
, 2009 SCC 4, [2009] 1
    S.C.R. 104, at para. 42, which, when looked at in the context of the case as a
    whole  should give comfort to the jury that the witness can be trusted in his
    or her assertion that the accused is the person who committed the offence.

[32]

In
    my view, the trial judge was correct in admitting the complainants videotaped
    statement. The criteria of necessity and reliability were satisfied. There were
    no grounds for finding that the prejudicial effect of the evidence outweighed
    its probative value. The prejudice occasioned to the appellant because of her
    inability to cross-examine the complainant did not outweigh the probative value
    of the evidence. This was not a borderline case for threshold reliability where
    the probative value of the evidence was minimal or suspect.

[33]

Further,
    the trial judge did not err, as trier of fact, in his assessment of the
    ultimate reliability of the statement. In the context of the evidence as a
    whole, the statements ultimate reliability was completely established, especially
    by the testimony of the family physician and of the appellant herself. The
    appellants story was riddled with contradictions. Taking just the most obvious
    problem, the appellant explained that the complainant allowed her access to her
    savings account because the appellant had fallen on hard times when she was
    fired from her job at Chippewa Place. However, independent evidence established
    that the appellant lost this employment in January 2007, almost a year after she
    obtained the debit card and began emptying the savings account.

[34]

Accordingly,
    I would dismiss the appeal from conviction.

D.

SENTENCE APPEAL

[35]

The
    appellant appeals her sentence of 21 months imprisonment and argues that the
    trial judge should have imposed a conditional sentence. There were undoubtedly
    some mitigating factors in this case. The appellant was 38 years old at the
    time of sentencing and had no prior criminal record. She had a supportive
    family. There was also evidence that at the time of the offence and during the
    trial, the appellant was coping with a physically abusive relationship with her
    ex-husband that left her unemployed and destitute.

[36]

On
    the other hand, this was a serious offence. The appellant voluntarily placed
    herself in a position of trust in relation to the complainant. She became her
    attorney and the executor of her estate. The frail, elderly complainant was
    completely reliant on the appellant. This was not a one-time act but a planned
    and deliberate fraud committed over many months by someone whom the complainant
    looked upon as a friend. The appellant stole and then spent over $126,000,
    almost the complainants entire life savings. In such a case, the paramount
    objectives of sentencing must be deterrence and denunciation, and they cannot
    be adequately met by a conditional sentence.

E.

DISPOSITION

[37]

Accordingly,
    I would dismiss the appeal from conviction. I would grant leave to appeal
    sentence but dismiss the appeal from sentence.

Released:
WKW November 22, 2012

M.
    Rosenberg J.A.

I
    agree W.K. Winkler C.J.O.

I
    agree Alexandra Hoy J.A.


