2 [4] And further that Angelica Cechirc, Alexander Verbon, and Pavel Muzhikov and Stanislav Kavalenka, between October the 28 th, 2003, and March the

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1 Info # , , , Citation: R. v. Muzhikov et al., 2005 ONCJ 67 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Mr. Michael Holme for the Crown AND PAVEL MUZHIKOV STANISLAV KAVALENKA DEFENDANTS Michael Simrod, Counsel for Mr. S. Kavalenka William Leslie, Counsel for Mr. P. Muzhikov HEARD: March 7, ONCJ 67 (CanLII WRIGHT, J.: Charges [1] Pavel Muzhikov and Stantislav Kavalenka are charged with a number of offences, in some cases jointly with each other and in some cases alone, all on one information (attached: [2] Angelica Cerchirca, Alexander Verbon, Pavel Muzhikov, and Stanislav Kavalenka, between the 28 th of October, 0203 and the 2 nd of March, 2004 inclusive at the Town of Richmond Hill in the said Regional Municipality of York and elsewhere in the Province of Ontario for the purpose of gain exercise control over the movements of Ekaterina Selyavko in such a manner as to show that they were compelling Ekaterina Selyavko to engage in prostitution generally contrary to Section 212(1(h of the Criminal Code. [3] And further that Angelica Cechirca, Alexander Verbon, and Pavel Muzhikov between February the 2 nd, 2004 and March the 2 nd, 2004 inclusive at the Town of Richmond Hill in the said Regional Municipality of York and elsewhere in the Province of Ontario for the purpose of gain, exercise control over the movements of Anastasia Andrusishina in such a manner as to show that they were compelling Anastasia Andrusishina to engage in prostitution, contrary to Section 212(1(h of the Criminal Code.

2 2 [4] And further that Angelica Cechirc, Alexander Verbon, and Pavel Muzhikov and Stanislav Kavalenka, between October the 28 th, 2003, and March the 2 nd, 2004, inclusive, at the Town of Richmond Hill in the said Regional Municipality of York, and elsewhere in the Province of Ontario for the purpose of gain exercise control over the movements of Anna Alexeeva in such a manner as to show that they were compelling Anna Alexeeva to engage in prostitution generally, contrary to section 212(1(h of the Criminal Code. [5] And further that Angelica Cechirca, Alexander Verbon, Pavel Muzhikov, between February the 2 nd, 2004 and March the 2 nd, inclusive, at the Town of Richmond Hill in the said regional municipality of York and elsewhere in the Province of Ontario did live partly on the avails of prostitution of Anastasia Andrusishina, contrary to Section 212(1(j of the Criminal Code. [6] And further that Angelica Cechirca, Alexander Verbon, Pavel Muzhikov and Stanislav Kavalenka between the 28 th of October, 2003 and March the 2 nd, 2004, inclusive, in the Town of Richmond Hill in the said Regional Municipality of York and elsewhere in the Province of Ontario did live partly on the avails of prostitution of Anna Alexeeva, contrary to Section 212(1(j of the Criminal Code ONCJ 67 (CanLII [7] And further that Angelica Cechirca, Alexander Verbon, Pavel Muzhikov and Stanislav Kavalenka, between October the 28 th, 2003 and March the 2 nd, 2004, inclusive, at the Town of Richmond Hill in the said Regional Municipality of York and elsewhere in the Province of Ontario did live partly on the avails of prostitution of Ekaterina Selyavko, contrary to Section 212(1(j of the Criminal Code. [8] And further that Angelica Cechirca, Alexander Verbon, and Pavel Muzhikov, between February the 2 nd, 2004 and March the 2 nd, 2004, inclusive, at the Town of Richmond Hill and elsewhere in the Province of Ontario did without lawful authority confine Anastasia Andrusishina, contrary to Section 279(2 of the Criminal Code. [9] And further that Angelica Cechirca, Alexander Verbon, and Pavel Muzhikov, between February the 2 nd, 2004 and March the 2 nd, 2004, inclusive, at the Town of Richmond Hill and elsewhere in the Province of Ontario did without lawful authority confine Anna Alexeeva, contrary to Section 279(2 of the Criminal Code. [10] And further that Angelica Cechirca, Alexander Verbon, and Pavel Muzhikov, between February the 2 nd, 2004 and March the 2 nd, 2004, inclusive, at the Town of Richmond Hill and elsewhere in the Province of Ontario did without lawful authority confine Ekaterina Selyavko, contrary to Section 279(2 of the Criminal Code. [11] And further that Angelica Cechirca, Alexander Verbon, and Pavel Muzhikov, between February the 2 nd, 2004 and March the 2 nd, 2004, inclusive, at the City of Toronto and elsewhere in the Province of Ontario did keep a common bawdy house located at 1183

3 3 Finch Avenue West, Suite 307, Toronto, Ontario, contrary to Section 210(1 of the Criminal Code. [12] And further that Alexander Verbon on the 2 nd day of March, 2004, at the Town of Richmond Hill in the Regional Municipality of York without lawful justification or excuse did have in his possession counterfeit money, to wit, Canadian paper currency, contrary to Section 450(b of the Criminal Code. [13] And finally that Stanislav Kavalenka between October the 22 nd, 2003, and March the 2 nd, 2004, did procure Anna Alexeeva to become a prostitute, contrary to Section 212(1(d of the Criminal Code. PROCEDURE 2005 ONCJ 67 (CanLII [14] On March 3, 2005 the crown elected to proceed by indictment. [15] The defendant Pavel Muzhikov elected to be tried by a court composed of a Superior Court Judge and Jury. The defendant Stanislav Kavalenka elected to be tried by the Ontario Court of Justice [16] In accordance with the criminal code and prevailing jurisprudence this court was constituted to conduct a preliminary inquiry in relation to both defendants on all charges. [17] Over the past two (2 days various legal issues have been addressed. [18] The crown has applied to file a videotape statement of two missing complainants; Ekaterina Selyavko and Anna Alexeeva named in seven of the twelve counts before the court. [19] Section 540 (7 reads as follows: A Justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded. [20] Subsection (8 sets out a precondition to this application being made: Unless the Justice orders otherwise, no information may be received as evidence under subsection (7 unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.

4 4 [21] Section 540 (9 is also relevant to my consideration of this application and provides as follows: The Justice shall, on application of a party, require any person whom the Justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7. Sufficiency of Notice [22] Neither Ekaterina Selyavko nor Anna Alexeeva has appeared in court. Both of these persons, I am told, have material evidence to give in these proceedings in that each is named as a complainant in at least one of the counts against both of the two defendants. [23] Both Ekaterina Selyavko and Anna Alexeeva were subpoenaed as witnesses to give evidence in these proceedings. Anna Alexeeva was available and actually at court on March 1, 2005 to give such evidence. Ekaterina Selyavko was not then available as she was hospitalized but was expected to be available to give evidence in these proceedings. As matters unfolded on March 3 and on the continuation of these proceedings up to March 7, 2005 both witnesses have gone missing ONCJ 67 (CanLII [24] On Thursday, March the 3 rd, 2005 during the course of discussions with defence counsel, the crown indicated that he might apply to have the statements of the two missing witnesses filed pursuant to section 540(7, if neither of them showed up to give evidence at court. No formal written notice was given to the defence, so far as I am aware, although a further indication of the crown s likely intention to pursue this was conveyed to the defence counsel on March the 3 rd, 2005, and to their respective clients, who were present. [25] The crown now seeks to use the amendments to the preliminary inquiry provisions of the Criminal Code to file the statements of the two witnesses instead of calling viva voce evidence. [26] Both counsel take issue with the notice they received from the crown as to his intention to proceed in this fashion. Are the Proposed Materials Statements Within the Meaning of Section 540 (7? [27] Both counsel received in disclosure copies of the video taped statements taken by the police from the two witnesses. In both of the video taped statements, both witnesses swore or affirmed to tell the truth. I am advised by crown counsel that the video taped statements of both witnesses therefore would comply with the provisions of the principle hearsay excepion rule set out in R. v. KGB, [1993] 1 S.C.R. 740, 79 C.C.C. (3d 257 (S.C.C., R. v. Khan, [1990] 2 S.C.R. 531, 59 C.C.C. (3d 92 (S.C.C., both decisions of the Supreme Court of Canada.

5 5 [28] Subsection (7 requires that the material being tendered by the crown must either be, a statement that is made by a witness in writing or otherwise recorded. [29] It is obvious that parliament contemplated that a statement may be recorded otherwise, but I assume that this allows for alternative recordings by other means, for example, video or audiotape, or using computer technology to be admissible in court as an alternative to a witness s own written statement. [30] What constitutes a statement has been defined in the cases of R. v. KGB, supra and R. v. Khan, supra. [31] The statements of the missing witnesses recorded on videotape and made under oath or affirmation, a copy of which each counsel has, meets the preconditions set under section 540 (7 of the Criminal Code ONCJ 67 (CanLII Test for Committal to Stand Trial [32] Section 535 of the Criminal Code provides: Where an accused who is charged with an indictable offence is before a justice, the justice shall in accordance with this Part inquire into the charge and any other indictable offence in respect of the same transaction founded on the facts that are disclosed by the evidence taken in accordance with this Part. [33] Section 548(1 indicates: When all the evidence has been taken by the Justice, he shall, if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; Or discharge the accused, if, in his opinion, on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. [34] The leading case on the issue of directed verdicts is United States of America v. Sheppard, [1997] 2, S.C.R., 1067, 30 C.C.C. (2d 424 (S.C.C., which sets out the test of whether the case should go to the jury in these terms: whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. [35] This test has been held to apply equally to cases in which proof of the offence is sought to be shown by either direct or circumstantial evidence. R. v. Monteleone, [1987] 2, S.C.R., 154, 160 C.C.C. (3d 193, and R. v. Arcuri, [2001] 2, S.C.R., 828, 157 C.C.C. (3d 21, both decisions of the Supreme Court of Canada.

6 6 [36] Section 540 of the Code established the procedure by which a justice shall conduct a preliminary inquiry. In order to satisfy a court that there is sufficient evidence to commit an accused to stand trial, a court has to hear witnesses called by the prosecution, subject to cross-examination by counsel and then determine if the test in the United States v. Sheppard or in R. v. Arcuri has been met. [37] While any evidence could be filed on consent at a preliminary hearing to obviate the need to call witnesses to testify to essential but non-contentious issues, no procedure existed to allow other non-consensual evidence to be led in a fashion other than through witnesses. [38] Parliament amended the Criminal Code by adding subsection 7, 8 and 9 to section 540. These were proclaimed in law June the 1 st, These sections gave discretion to either party to file witness statements instead of calling the witnesses in person without the consent of the opposing party, subject to the court s decision to require the attendance of the witness, as he or she deemed appropriate ONCJ 67 (CanLII Interaction Between 540 (7 and 540 (9: [39] Section 540(7 states that a judge may receive a statement into evidence at a preliminary inquiry. This implies that there are circumstances that must be taken into account in making such a decision. [40] Under subsection (7, a judge must be satisfied that the statement being tendered is either credible or trustworthy. As well, subsection (7 must be read in relation to subsection (9. This latter subsection requires that a judge shall order the attendance of any person in regard to the statement being tendered where the judge considered it appropriate either for examination in-chief or for cross-examination. [41] I further do not find that even where credibility has explicitly been imported into the determination of admissibility of evidence under subsection 7, that this requires the preliminary inquiry justice to assess credibility of witnesses in the sense of whether I believe or disbelieve their evidence. [42] Rather I find that the use of words credibility and trustworthiness are used in the same context as section 518 of the Criminal Code, in that the evidence must have a prima facie air of reliability to allow a court to consider it as evidence, not sufficient to base a conviction upon, but rather toward consideration as to whether there is some evidence for a jury to properly consider at trial. [43] Both counsel for the defendants argue that I should order the attendance of each Ekaterina Selyavko and Anna Alexeeva to be cross-examined on their respective videotaped statements. They rely on the acknowledged role discovery continues to play at a preliminary inquiry and the right of an accused in the future to make full answer and defence. Ekaterina

7 7 Selyavko and Anna Alexeeva are complainants in seven of the twelve counts identified on the information libelling the defendants who are before the court. It is essential for the crown to lead some evidence to justify a committal for trial on those counts. [44] Subsection 9 raises the question of whom a judge deems appropriate to call as a witness regarding the statement when the crown seeks to lead evidence in this fashion. The court may order any person to come to testify, not just the maker of the statement. For example, in certain circumstances, the person taking the statement may be sufficient for the court s purposes to meet the circumstances of the case. [45] The court may also order that where appropriate, no witness shall be called when circumstances warrant that decision. [46] As I indicated above, the amendment to the Code allows for evidence to be led in the absence of a witness, without consent of the party, subject to the court s ruling ONCJ 67 (CanLII [47] In R. v. Trac, [2004] O.J. 5469, Madam Justice Anne Marie Shaw analyzed the requirement to have someone testify when the statement was not being filed on consent, but rather pursuant to section 540(7. [48] In her decision, Justice Shaw equated this provision to the same wording in section 518 of the Code, dealing with the admissibility of credible and trustworthy evidence at a bail hearing. Justice Shaw reached the conclusion that it was necessary for the party tendering the evidence to lead it through some witness who had knowledge surrounding the taking of the statement. The statements led in this fashion could include such things search evidence, expert reports, forensic records, wiretap transcripts, and at paragraph 55 in her decision, third party witness statements. [49] However, even if the video tape statements of the missing witnesses are prima facie admissible, as long as a person with knowledge surrounding the circumstances surrounding the taking or the creation of the report is called, that does not mean that they are de facto admissible. [50] Subsection 9 mandates that a Judge shall make any person available that he considers appropriate for examination. If a Judge feels that it is appropriate for a witness to be made available, the statement should not be admitted under subsection (7 in the absence of that witness testimony. [51] The crown has indicated that he is prepared to tender his evidence of the videotaped statements of the witnesses Ekaterina Selyavko and Anna Alexeeva. I take that to mean that the crown intends to call a police officer or some other person to testify as to the circumstances of the taking of the statements of the missing witnesses. [52] Defence counsel argue that the very importance of the missing witnesses and their roles as complainants necessitate that, in fairness to the defendants, I should find that the witnesses should be called to testify. The inevitable conclusion to be reached is that, in the absence of

8 8 calling Ekaterina Selyavko and Anna Alexeeva, the crown should not be permitted to lead their statements in any other fashion than viva voce. [52] In my view, in this case, where these witnesses are fundamental to the crown leading some evidence on the counts in the information and where there are real and valid issues for discovery, I find that I would make such an order under subsection (9 that the witnesses making the statements shall be called to be examined to be called and to be cross-examined if the crown wishes to introduce those statements. I would further find that evidence from a police officer or others as to the taking of the statement would not be sufficient to meet the concerns mandated by section 540 (9. [53] This effectively has the result of precluding the Crown from leading statement evidence in the absence of the witness. I do not intend it to be taken that in every case where a witness is unavailable, the inevitable result must be the inapplicability of Section 540(7. There may well be legitimate reasons for the absence of a witness, for example, an extended absence from the country with the expectation that the witness will be available at trial, a witness who is deceased, or a very youthful witness who the court wishes to spare from testifying twice at separate proceedings ONCJ 67 (CanLII [54] It must also be remembered that the Crown has other alternatives to seek the admission of a statement into evidence to prove its contents. The Supreme Court of Canada in R. v. Khan, supra, has set out a detailed principled approach to the exception to the admissibility of hearsay in certain circumstances. As long as certain safeguards are met, a statement can fairly be admitted in evidence at trial of an accused, even in the absence of cross-examination. [55 ] In my view this is not a circumstance where in light of the application by defence for the right to cross-examine Ekaterina Selyavko and Anna Alexeeva that the videotaped statements that each purportedly gave should be filed in evidence pursuant to section 540 (7 without those witnesses being made available for cross-examination. Ruling The application by the crown to admit into evidence the videotaped statements of the missing witnesses Ekaterina Selyavko and Anna Alexeeva in these proceedings is denied. Released: March 8, 2005 Signed: Justice Peter J. Wright

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