COURT OF APPEAL FOR ONTARIO
ROSENBERG, FELDMAN and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Roger Shallow for the respondent
Respondent
- and -
MICHAEL LYTTLE
Russell Silverstein for the appellant
Appellant
Heard: September 30, 2005
On appeal from the judgment of Justice P.R. Currie of the Ontario Court of Justice dated December 21, 2004.
JURIANSZ J.A.:
1After a trial before judge alone, the appellant was convicted of five charges involving assaults upon his wife, Desiree Steffen, and his eight-year-old son Nathan. He was convicted of assault and assault with a weapon upon his wife on February 20, 2004, and of assault upon her again on May 10, 2004. He was convicted of assault and assault with a weapon upon Nathan on May 10, 2004. The convictions rest upon the unsworn videotaped statement of Ms. Steffen that the judge admitted into evidence for the truth of its contents.
2The appellant appeals his convictions on two grounds:
the trial judge made comments during the trial that gave rise to a reasonable apprehension of bias; and
the trial judge erred by admitting the unsworn videotaped statement of his wife into evidence for the truth of its contents.
3For the following reasons, I would find that the trial judge did not err in admitting the unsworn videotaped statement into evidence. However, I would find that the trial judge’s comments gave the appellant a reasonable apprehension that he had prejudged some of the issues. Consequently, I would allow the appeal, set aside the convictions and order a new trial.
The Facts
4The appellant lived with his wife and four children at 38 Glen Grove Court, in Brampton, Ontario. On May 10, 2004, Police Constable Roach arrived at the house around 10:30 p.m. in response to a 911 call during which the appellant’s son, Kenneth, age fourteen, spoke to the dispatcher. Constable Roach observed Ms. Steffen off to one side of the room wrapped in a blanket. He described her as “scared, terrified,” “visibly upset,” and “wide-eyed, just staring, crying.” Constable Roach observed that Nathan had been severely beaten and his back was purple and covered in welts, some of which were bleeding. Ms. Steffen gave Constable Roach some photos she said were taken earlier that year that showed similar bruising to her back. She told him the bruises were caused by a belt.
5The appellant was arrested, and Ms. Steffen and her four children went to the police station. Ms. Steffen and Nathan each provided a statement implicating the appellant. The police videotaped the statements but did not administer oaths or give any warning about the consequences of providing a false statement.
6At trial, both Ms. Steffen and Nathan disavowed their statements and exculpated the appellant. The trial judge held voir dires and ruled that Ms. Steffen’s statement was admissible for its truth, but that Nathan’s video statement was not admissible.
Ms. Steffen’s Video Statement
7The detective who took the unsworn statement from Ms. Steffen testified that although a commissioner of oaths was available at the police station, he did not administer an oath. He noted there was physical evidence, namely visible injuries on Nathan and photographic evidence of past injuries to Ms. Steffen that supported the information the police had received. The detective had been briefed by the arresting officer, but his entire interview with Ms. Steffen was recorded on the video. The detective did not ask leading questions but simply asked Ms. Steffen what happened and let her talk.
8In the video statement, Ms. Steffen reported that earlier that evening the appellant kicked and slapped her and threatened to put a gun in her mouth. She also reported that he had beaten Nathan with a belt. She said she had gone downstairs and asked her son Kenneth to phone 911. When she went back upstairs the appellant told her to leave the house and hit her twice with the belt. He asked her if she “had a dick in her pants” and forced her to take down her underwear. Ms. Steffen then saw the lights of the police car arriving and ran downstairs to let them into the house. She said she showed the police officer some photographs she had her mother-in-law take after the appellant had beaten her with a belt on February 20, 2004. She also stated that the appellant had beaten their sons in the past.
Nathan’s Video Statement
9At the outset of Nathan’s video statement, the detective did ensure that Nathan understood the difference between the truth and a lie and Nathan promised to tell the detective the truth. The detective did not explain to Nathan any consequences of not telling the truth. The detective did not ask leading questions, but asked Nathan what happened. At the end of the statement, Nathan confirmed that everything he had said was true.
10In his statement, Nathan said his father had been arrested that evening for “hitting us with the belt.” He provided details of where his father had hit him with the belt. His mom was in the room at the time. He said his father had beaten him and his older brothers with the belt on earlier occasions.
The Trial
11At trial, both Ms. Steffen and Nathan recanted their video statements.
12Ms. Steffen testified that she was the one who had beaten Nathan with a belt. When her husband questioned her about the bruises on Nathan’s back, she went downstairs, called 911, handed the phone to her son Kenneth and instructed him to tell the police that her husband was hitting her. She explained this was part of a plot to get her husband out of the house. She said she was emotionally upset because her husband had been having an affair with another woman who had just given birth to his child. She said she had previously strapped herself with the belt, and had some photographs taken of the bruises to use against her husband in the future. When the police arrived, she showed them Nathan’s bruises and the photographs. She was adamant that her husband had not struck either her or Nathan and that she had lied to the police in order get him out of the house.
13Nathan was qualified to testify under s. 16 of the Canada Evidence Act, R.S. 1985, c. C-5. He was not sworn, but gave evidence after promising to tell the truth. He refused to adopt his video statement as true. He testified that it was his mother who had beaten him with the belt and that his mother had told him to lie to the police.
14The appellant testified and denied the allegations. He testified that it was his wife who had beaten Nathan with a belt on May 10, 2004. He testified that he had never hit his wife on any occasion.
The Trial Judge’s Rulings
15The trial judge stated that the factors to be considered in deciding whether to admit the statements were necessity and reliability. The necessity factor was satisfied because of the witnesses’ recantations and only reliability had to be considered.
16In regard to Ms. Steffen’s statement, the trial judge noted it was not taken under oath and she was not contemporaneously cross-examined. On the other hand, he noted he was able to view the witness give testimony before him and watch her on the videotape. He also took into account the evidence he heard about her demeanour earlier in the evening when the police responded to the 911 call. After balancing these factors in all the circumstances, he stated he was “satisfied on a balance of probabilities that [the] statement was made under circumstances which substantially negate the possibility that that statement is unreliable, and therefore it will be admissible.”
17In introducing his reasons for rejecting the Crown’s application to admit Nathan’s video statement, the trial judge made this statement:
I can say at the outset that viewing the videotape statement on its own, I believe what Nathan says, however, at this juncture that’s not the issue. The issue is whether there are sufficient external and objective criteria of reliability for the trier of fact, ultimately to be able to weigh that statement against other evidence in the case.
18The trial judge then noted that while the statement was not taken under oath, Nathan did understand the distinction between truth and lying, and had indicated he was prepared to tell the truth. Nathan’s statement was videotaped in its entirety. His demeanor was apparent on the videotape. The trial judge then said:
As I indicated earlier if it was simply a question of whether I was asked if I believed what he said on the videotape or not, I would say that I do believe what he had to say in that statement in May.
19The trial judge found Nathan’s statement was not admissible after observing that he had testified at trial that “My mom told me to tell lies,” and there was no evidence that Nathan had been kept separate from his mother at the police station before the giving of his video statement. Consequently, the trial judge concluded he was not satisfied that the statement was taken under circumstances which substantially negate the possibility that it is not truthful. While the trial judge did note that Nathan had given his statement after promising to tell the truth, he does not appear to have considered that this placed the statement on an equal footing with his testimony at trial, which was also given on a promise to tell the truth.
Issue 1 - Apprehension of Bias
20Counsel for Mr. Lyttle submits that the comments of the trial judge made during his ruling on the admissibility of Nathan’s statement give rise to a clear and reasonable apprehension of bias on the part of the trial judge. I agree.
21As MacPherson J.A. said in R. v. Hossu (2002), 167 C.C.C. (3d) 344 at para. 19:
The credibility of witnesses lies at the heart of most trials, probably especially criminal trials. A trial judge should not make declarations about the credibility of any witness during the trial; such conclusions should be saved for judgment.
22In this case the trial judge stated mid-trial that he believed what Nathan said in his video statement. Even though the trial judge included the caveat “viewing the videotape statement on its own” in one of the two comments quoted above, the appellant could reasonably apprehend that the trial judge disbelieved the testimony that Nathan had given as a witness at trial and, rather, believed that the appellant had beaten Nathan with a belt as Nathan had said in his video statement. These comments were made before the appellant testified and before his counsel made any submissions about the credibility of witnesses.
23The trial judge’s comments were improper and irretrievably prejudiced the appearance of the fairness of the trial. A new trial is required.
Issue 2 - The Admissibility of Ms. Steffen’s Video Statement
24The appellant’s success on the first issue leads to a new trial. The appellant submitted that an acquittal ought be entered because the trial judge erred by admitting Ms. Steffen’s video statement. That statement provided the evidentiary basis of his convictions.
25The jurisprudence relating to the admission of prior statements of recanting witnesses was carefully reviewed recently in R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.). This court adopted the broad view of the admissibility of such statements expressed in the reasons of Moldaver J.A. The court found that, where the statement has been fully recorded on videotape and the declarant is available for meaningful cross-examination at trial, the lack of the administration of an oath is of “marginal significance” in assessing threshold reliability.
26Moldaver J.A. emphasized this point repeatedly. At para. 73, he stated that the burden the oath carries in the threshold reliability assessment is a “modest one” when the other two “ideal” reliability indicators are present. At para. 76, he noted that cross-examination “goes a substantial part of the way” towards ensuring that triers of fact can adequately assess reliability and stated that “when the triers also have a videotape of the declarant making the statement, the two in combination go virtually ‘all of the way’ to providing the triers with the tools they need to adequately assess reliability.” Where the opportunity to cross-examine the declarant and a complete videotape of the statement are present, the oath “has very little burden to shoulder in the threshold reliability assessment”, he said at para. 78. At para. 81, he noted that the fact the out-of-court statement is unsworn is something the jury may take into account in assessing its weight in deciding whether it can be safely relied upon to support a conviction. Finally, at para. 83, he said that the absence of an oath is of “marginal significance when the other two ‘ideal’ reliability indicators are present.”
27The trial judge admitted the statement of Ms. Steffen because he considered the evidence surrounding the making of the statement to be such that she would be aware of the solemnity of the occasion and the importance of telling the truth sufficient to satisfy the requirements of threshold reliability. The statement was taken in the context of a response to a 911 call from Ms. Steffen’s residence, and upon their arrival there, the police observed her to be in acute distress. The police took her to the police station where she gave her statement on video. At the time the statement commenced she was still described as “fairly upset.”
28It must be said that it would be preferable if the police, as a matter of routine practice, administered an oath before the taking of video statements. However, as Moldaver J.A. observed at para. 90 of Trieu, we are not concerned with the ideal, but a “tenable substitute to take up the little bit of reliability slack left by the missing oath.”
29I agree with the trial judge that the surrounding circumstances of the taking of Ms. Steffen’s statement take up the little bit of reliability slack left by the missing oath in this case. The police, responding to a 911 call from Ms. Steffen’s house, observed that she was in a state of apparent severe distress and her eight-year-old son exhibited clear marks of a recent beating. The police arrested her husband. In the immediate aftermath of these events, she attended the police station with her young children where, still in a state of apparent distress and knowing that her spouse faced serious criminal charges, she gave the video statement. These circumstances could not have failed to impress upon her the importance of telling the truth and raise the expectation that she did so sufficiently to make her statement admissible.
30Deciding the statement is admissible is a threshold determination. Admitting the statement does not indicate it is true, but merely that the trier of fact may consider whether it is true. Of course, Ms. Steffen might have lied on the videotape and feigned her distress and demeanour as she claimed she did in her testimony at trial. Whether she lied when giving the statement, however, is a question of the ultimate reliability of the statement to be considered by the trier of fact in the context of all the evidence at trial.
31At trial, Ms. Steffen offered an explanation for her motivation to lie and for her change of heart and she was cross-examined on that explanation. As Moldaver J.A. explained at para. 93 of Trieu, though motive to fabricate may be relevant in the threshold reliability analysis, “when a declarant is available for meaningful cross-examination, the place to deal with motive is in the cross-examination.”
32I would not interfere with the trial judge’s finding that the video statement was admissible. Therefore, I reject the appellant’s submission that an acquittal ought to be entered.
Conclusion
33The trial judge’s comments in this case destroyed the appearance of a fair trial. Consequently, I would allow the appeal and order a new trial. At the new trial Ms. Steffen’s video statement will be admissible for its truth
“R.G. Juriansz J.A.”
“I agree M. Rosenberg J.A.”
“I agree K.N. Feldman J.A.”
